By Bruce Jervis
State mechanic’s lien statutes invariably stipulate a deadline for filing a notice or statement of lien in the public records. The filing period starts to run on the last date a contractor or supplier furnished labor or materials to the project. The purpose is to enable a prospective purchaser or lender to determine whether the property is encumbered by a lien, which would take priority. If there was no timely filing, the property is clear.
This raises a question. Can the filing period be extended if a contractor returns to the job site to perform corrective or remedial work? While lien law varies by jurisdiction, the prevailing answer is in the negative.
An Alabama court recently ruled that although the lien statute did not define the “last item” of work furnished by a contractor, it should not include corrective warranty work. It would be contrary to the purpose of the statute to create uncertainty by allowing the contractor to extend or manipulate the filing deadline. There was no legal precedent in Alabama on this issue, but the court cited opinions from four other states.
This rule can sometimes present difficult factual questions. The Alabama court noted that the work performed by the contractor upon its return to the site was brief in duration. The contractor never billed for the work and did not include an amount due for that later work in its lien statement. This was sufficient evidence that the work was remedial in nature, not a substantive part of the contractual scope of work. Do you think this rule is reasonable? Have you seen situations where contractors found an excuse to return to the job site in an effort to extend a filing period? Your comments are welcomed.
