As most contractors are aware, in Connecticut, you have 90 days after the last day that you supply labor and/or materials to file a mechanic’s lien. Many other states have the same or a similar requirement pertaining to when a mechanic’s lien can be filed. The question that is often asked is which “last day” starts the clock.
In a common scenario, additional work is performed more than 90 days after what was originally thought to be the last day worked and the contractor then claims that the second last day starts a new 90 days clock to file a mechanic’s lien. Sometimes such mechanic’s liens are upheld but they are typically invalidated. The reason is that the typical scenario involves a contractor – who has not been paid – realizes that his time to file a mechanic’s lien has expired so he returns to the site to perform a minor punchlist item that was inadvertently left undone initially. Generally speaking, to restart the mechanic’s lien clock, a contractor must perform substantive work that was authorized by the owner or someone rightfully acting on the owner’s behalf. The most recent guidance on this issue was provided by the Connecticut Appellate Court in Cianci v. Originalwerks, LLC, 126 Conn. App. 18 (Conn. App. 2011).
Cianci involved a $1.7 million contract for the construction of a new home. At the owner’s direction, the contractor stopped work on July 15, 2008 but the contractor did not file a mechanic’s lien until October 15, 2008 which is obviously more than 90 days after July 15, 2008. Nonetheless, the trial court refused to discharge the mechanic’s lien and the appellate court upheld the trial court’s decision.
The trial court upheld the validity of the lien because there were “services” provided within 90 days of the lien date. The services provided, however, were the types of services that, before Cianci, would have been considered too minor to be the basis for extending the time to file a mechanic’s lien. Specifically, the contractor returned to the property on September 23, 2008 to attend a meeting regarding the deficiencies that had been identified in his work. During the September meeting, the contractor removed and replaced some plywood to allow for an inspection and he removed some tools from the property. The only other time the contractor returned to the property within 90 days of the lien date was on October 1, 2008 when the contractor removed his remaining tools and some scaffolding.
There is no doubt that the “work” that was performed to uphold the validity of the in Cianci was far more minor than the work that had previously been relied upon to restart the 90 day clock. Here, it seems that the court relied upon the fact that the contractor attended the September meeting at the owner’s direction and with the owner’s request to make the required corrections. Thus, the lesson to be learned from Cianci is that the issue of whether the owner authorized the performance of the additional work is more important than specific work performed when considering whether such work restarts the 90 day clock to file a mechanic’s lien.
It is important to note that there are statutory damages for which one may be found liable for filing an invalid lien. Therefore, if you have any question as to whether you have the right to file a mechanic’s lien based upon your specific situation, please give me a call at (860) 760-3317.
Scott Orenstein