by Paul R. Fitzgerald, Esq.
In order to be valid in Connecticut, a mechanic’s lien must be filed within 90 days of the lienor’s last date of work, or providing materials or equipment, for a construction project. Any lien that is filed after that time period is invalid and is subject to discharge by the court.
It is therefore critically important for anyone who provides labor, materials, or services on lienable projects in the state (i.e., private projects) to understand what is meant by the “last date of work.” Does the last date of work include warranty work? Punch list work? Repair work performed at the owner’s request? Work performed offsite? Trivial work performed at the contractor’s initiative for the purpose of extending the limitation period? Extra work that was not agreed to by the project owner? And what happens when the 90th day falls on a weekend or a holiday?
This article answers these questions and discusses the application of the 90-day rule.
Use it or lose it: lien rights expire after 90 days per Connecticut statute.
The time period for filing a mechanic’s lien is set by Connecticut statute. Specifically, Connecticut General Statutes §49-34 provides in relevant part: “A mechanic’s lien is not valid unless the person performing the services or furnishing the materials…within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk….”
Connecticut courts typically interpret this statute very strictly; indeed, more liens are discharged because they were filed late than for any other reason.
Trivial or minor work, performed unilaterally by a contractor after he has delayed the project, does not extend the period for filing a lien.
Although typically the time period for filing a mechanic’s lien commences on the last date on which services were performed or materials were furnished, when work has been substantially completed and the contractor performs trivial or very minor work, or unreasonably delays final completion, the time for filing a lien is computed from the date of substantial completion.
The date of substantial completion is used as the starting date for the 90-day limitation period when the following occurs:
(1) the contractor must have unreasonably delayed final completion, and
(2) any services or materials provided by the contractor subsequent to the date of final completion must have been furnished at the contractor’s initiative, rather than at the owner’s request.
The substantial completion rule prevents contractors and suppliers from performing trivial work in order to extend their lien rights.
Repair work typically does not extend the 90-day period for filing a lien unless the repair work is performed at the owner’s request.
Typically, when the only work performed within the last 90 days is minor corrective work to repair defects, the substantial completion rule applies and will prevent the filing of a mechanic’s lien. However, some courts will uphold the validity of the lien- particularly when the work was necessary to repair the work of someone other than the lienor and/or was performed at the owner’s request.
The last date of work includes punch list work and work performed off-site, but not warranty work.
The last date of work typically includes all work performed necessary for the completion of the contract, including so-called “punch list work.” The last date of work may also include work performed off-site at the lienor’s home plant, such as preparation of as-built drawings, as long as that work is part of the contract requirements. Warranty work, however, generally cannot be used to calculate the beginning of the 90-day limitation period.
The last date of work may not include change order work that has not yet been approved by the property owner.
In order for a mechanic’s lien to be valid, the owner of the property subject to the lien must consent to work being performed on the property. The consent required from the owner is more than the mere granting of permission for work to be conducted or the mere knowledge that work has been performed. There must be an agreement that the owner will or may be liable for labor or materials. With regard to work that is outside the scope of the original contract, most construction contracts require that the owner sign a written change order indicating his or her consent to the extra work. Thus, if the only work performed by a contractor within the preceding 90 days is extra work requiring a written change order, and the contractor lacks a signed change order from the owner, the contractor’s lien rights have likely expired. It is therefore critical for contractors to obtain signed change orders in order to prove owner consent and extend the lien period.
If the Land Records are closed on the 90th day, most courts will allow a lien to be filed on the first day that the office reopens.
Some Connecticut courts have held that when a town clerk’s office is closed on the 90th day, a mechanic’s lien may be filed on the first day that the office is open following the 90th day. However, this is not a universally accepted rule, so a potential lienor should avoid waiting until the very last day to file a mechanic’s lien.
The bottom line: keep track of when you last performed work and don’t wait too long to file a lien.
A mechanic’s lien is a very effective remedy for subcontractors and suppliers who have not been paid for their work on private construction projects. Given the limited time period in which a lien may be filed, it is imperative that potential lienors be aware of their last date of work on lienable projects and not wait until it is too late to file a lien.
If you have any questions about the time period for filing a mechanic’s lien or would like to file a lien to secure a claim for unpaid work, please call Michelson, Kane, P.C., at 860-522-1243.
Michelson, Kane, P.C.
