I do not like flirting with deadlines. If the deadline is Wednesday, I like to get it done on Tuesday. When filing a construction lien, it is always better to file a few days before the deadline or you may suffer the same fate as this Montana contractor.
In Total Industrial Plant Services, Inc. v. Turner Industries Group, LLC, the Montana Supreme Court was asked to analyze whether Total Industrial filed its construction lien within the Montana law 90 day statute of limitations. According to the evidence, Turner Industries was off the site no later than June 25. Even Total Industrial’s own superintendent testified that the company completed its work on June 25. So, when Total Industrial filed its lien 91 days after they left the property, the owner claimed that the lien was filed too late.
The court agreed, finding that the lien had been filed too late. Total Industrial argued that while it did complete a contract on June 25, it was back on the site under a new purchase order within the next few days and it was performing the same type of insulation work. Total Industrial also argued that its continued efforts on the work site, even though under a different purchase order, stayed the running of the lien filing deadline. The court disagreed, citing to Montana law that if work is performed under separate contracts, the lien should be filed within the time prescribed by statute after delivery under each of the contracts. This meant that Total Industrial’s work under the new contract did not extend the time in which it could file a construction lien under the old contract.
Lien filing deadlines are serious business. If you have any question about when your deadline runs, it is always better to err on the side of caution and get the lien filed early. Otherwise, you may be out of luck just like this Montana contractor.
One of the most common things I see is when a contractor tries to use repair/warranty work as its last day. In fact, it is sometimes questionable whether to use even punch list work! Best to use the date of “substantial completion. I have also see where contractors incorrectly use the payroll date to prove work on-site, rather than the actual day they worked on site.
I agree with Rob’s comment here, and also agree with the moral of Craig’s post. It is very common for contractors and suppliers to start crunching their mechanics lien deadline when it’s too late and then start to get creative (or try to) about when the “last date” of furnishing occurred. When all the dust settles the last date of furnishing will come into focus, and even if there is some gray area about when the last day may be, it is awful to leave this stuff up to a judge to determine.
Contractors and suppliers should give themselves plenty of time, and be very careful with mechanics lien deadlines.
[…] there is no such construction that will forgive a lien claimant when they file their claim late. Yes, even a day late. Yes, even if you have an […]