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A general contractor is putting up a large office building for a customer. A sub-contractor is hired to install the dry wall and office doors. The work is essentially complete. More than 90 days has gone by and the sub-contractor has not been paid. The general contractor is close to handing title of the building to the customer.

The credit manager of the sub-contractor is unhappy that his firm has not be yet paid. He would like to put a lien on the building but 90 days have passed since the work has stopped. He then notices that one of the terms of the contract says that the sub-contractor must deliver a garbage can for the lobby and his firm has failed to do so. So he buys a garbage can and delivers it to the new building. He then places a lien on the building.

The general contractor's lawyer says that the lien is invalid because more than 90 days have passed. The credit manager says it is because the work was not complete until the garbage can was delivered. Who is right?

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  • I'm not clear what significance the 90 days has here. Does the contract specify that if the sub doesn't perform something within 90 days then there is no payment due? That seems unlikely to me, however.
    – jwh20
    May 9 at 18:19
  • @jwh20 It is my understanding that if a contractor ( or a sub-contractor) want to lien a job the law says that they must do it within 90 days of completing the work. You can look at the following URL: esqnj.com/….
    – Bob
    May 9 at 18:26
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    @Bob I've amended your post to add a New Jersey tag which is the law you rely upon. The deadlines for mechanic's lien filings vary materially from state to state.
    – ohwilleke
    May 9 at 22:10

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The garbage can probably wouldn't work because it isn't a fixture or part of the property. But the bigger question doesn't have a general answer and has to be determined on a case by case basis by a judge interpreting the language of the mechanic's lien statute in light of experience and the evidence presented.

There are certainly cases where a subcontractor could do some work on a contract, pause work, and then do some more work on the contract, in order to benefit from the later "last work done" for mechanic's lien filing purposes.

The pertinent New Jersey Statute is here. The statutory section establishing the deadline states, with bolded language limiting the kind of conduct contemplated in the question:

2A:44A-6. Filing lien claim

A lien claim shall be signed, acknowledged and verified by oath of the claimant or, in the case of a partnership or corporation, a partner or duly authorized officer thereof, and filed with the county clerk not later than 90 days following the date the last work, services, material or equipment was provided for which payment is claimed. No lien shall attach, or be enforceable under the provisions of this act and, in the case of a residential construction contract, compliance with sections 20 and 21 of this act, unless the lien claim is filed in the form, manner and within the time provided by this section and section 8 of this act, and a copy thereof served on the owner and, if any, the contractor and the subcontractor, against whom the claim is asserted, pursuant to section 7 of this act.

For purposes of this act, warranty or other service calls, or other work, materials or equipment provided after completion or termination of a claimant's contract shall not be used to determine the last day that work, services, material or equipment was provided.

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