Does Work Required to Meet Government Regulations extend the time to file a lien?

The courts have generally held work done to obtain necessary approval of governmental regulatory agencies to be “substantial” and have allowed the time for filing of a mechanic’s lien claim to run from the date of such work when it is the last substantial work done.

Extra Work on a Construction Project & Mechanic's Liens

Often an owner asks for additional work to be done on the project. The question arises whether the additional work will extend the time for filing a mechanic’s lien. If the extra work is a change order to the original contract, then the time for filing a mechanic’s lien is extended, and final completion will not occur until the change order is complete. However, if the extra work is performed under a new original contract, then the time for filing a mechanic’s lien must be measured under the new original contract, rather than the previous original contract under which the other work was done. Subcontractors and suppliers should keep abreast of whether additional work that they perform is done pursuant to a change order under the previous original contract, or done under a new original contract.

Keep in mind, however, that if an owner contracts only with a general contractor, and the general contractor then contracts with multiple subcontractors, everybody will be working under the single original contract between the owner and the general contractor. Likewise, if an owner-builder is involved, all workers will be working under the same original contract formed between the owner-builder and itself. In either situation, a new contract will not constitute a new original contract so as to change the time period for filing the Notice of Lien. Instead, a new contract in this context will be like a change order, and simply extend the time for final completion of the original contract.

On the other hand, when an owner (not an owner-builder) contracts directly with multiple contractors, there will be multiple original contracts. In such cases, a new contract between the owner and any contractor is significant because it will not extend the time period for filing a lien under the original contract. Instead, the time period must be measured under the new original contract that is created by the formation of a new contract between the owner and the contractor. Contractors and suppliers should keep abreast of whether additional work requested by the owner is being performed pursuant to a change order or to a new contract. In addition, in situations where the owner only contracts with a single general contractor and no one else (and there is only a single original contract), a new original contract could be created if the owner and the general contractor enter into a new contract. Thus, subcontractors should try to be aware of the dealings between the owner and the general contractor, and should be aware that if the owner and general enter into a new contract, then some subs might be working under a new original contract.

Repair, Warranty and Maintenance Work

It is important to note that the majority of the items listed below which were held to be trivial work were replacements, repairs or were otherwise outside the normal winding down during the completion of a construction contract. Warranty and maintenance items are also considered trivial work by the courts. See Calder Bros. v. Anderson, 652 P.2d 922 (Utah 1982).

Trivial Work

The courts have also held that trivial work remaining to be done or being done does not extend or prolong the contract completion date for mechanic’s lien purposes, especially if it is done with that intention. The courts will generally require a good explanation as to why the work was not trivial or some showing that the trivial work was specifically requested before acceptance would be granted. The important thing to remember in determining whether certain work is trivial or not is that minor work is not the same as trivial work. In other words, minor work done in a good faith attempt to complete the contract performance will not be considered trivial especially if done at the insistence of the owner. The following cases help to further define the fine line between trivial and substantial work. In the case of Carlisle v. Cox, 29 Utah 2d 136, 506 P.2d 60 (1973), the court, after quoting at length from the Wilcox case discussed in subsection 1 above, stated that “In other words, when a building has been substantially completed and has been accepted by the owner, the contractor may not thereafter at his own instance perform some minor omitted part of the contract and thereby extend the period for the filing of the lien.” Id. at 29 Utah 139, 506 P.2d 62.

In that case, a register for a heater had not been installed by the lien claimant subcontractor. The lien claimant had carried the item around for a month after the building had been accepted before installing it. No requests for the register had been made by the landowners. The court concluded by stating that “the omission of the register in the performance of the subcontract must be characterized as so trivial that the landowner would not have been able to defend successfully an action for payment on the ground that the contract had not been fully performed.” Id. at 29 Utah 2d 139, 506 P.2d 63.

In addition to the Utah cases, decisions from other states are also helpful in determining what work will be deemed as trivial. An appellate court in Washington set forth a three-pronged test in evaluating additional work in relation to the issue of time extension for filing liens. In the case of Heaton v. Imus, 21 Wash. App. 914, 587 P.2d 602 (1978), the court stated that:
When addition work is undertaken to remedy a defect in work already completed, the time for filing a lien runs from the date of performance of the additional labor if the later work was not done (1) under a new and independent contract, (2) for the purpose of prolonging the time for filing the lien, (3) in an attempt to renew the right to file a lien that had been lost by a lapse of time. Id. at 21 Wash. 916, 587 P.2d 604-605.

In Kirk v. Rohan, 29 Wash. 432, 187 P.2d 607 (1947), the Supreme Court of Washington held that:
The law is well-settled in this state that work done, or materials furnished under a new independent contract, entered into after the original contract is completed, cannot be tacked onto the original contract to extend the time for filing a lien under the original contract for labor performed and materials furnished. However, if the work is done or materials furnished at the request of the owner to complete the original contract, or to remedy some defect in the work done, then the time for filing the lien would run from the last furnishing of labor and material, provided the work is not done for the purpose of prolonging the time for filing a lien, or renewing the right to file a lien which had been lost by a lapse of time. In short, if the work done or material furnished at the request of the owner, is in furtherance of the original contract, then the time for filing the lien is extended. Id. at 29 Wash. 2d 436-437, 187 P.2d 609.

In the case of Christenson v. Behrens, 231 Or. 458, 372 P.2d 494 (1962), the Oregon Supreme Court stated:
It is well settled by several decisions of this court that the efforts of a contractor or of a subcontractor who returns to the building where work has stopped after apparent completion and all tools have been taken away and then performs some trifling work or a few odds and ends will not be deemed original construction so as to extend the period of limitation for filing mechanic’s liens. This is especially true in situations such as the one at bar in which the interests of an innocent owner may be affected by the purported lien. Id. at 231 Or. 467, 372 P.2d 498-499.

In the case of Brown v. Farrell, 258 Or. 348, 483 P.2d 453 (1971), the Oregon Supreme Court held that when a plumbing subcontractor repaired a washer and attended to some other minor matters, it was of such a minor consequence that it could not be used as grounds to extend the time within which he furnished materials or performed labor on the project. The court, therefore, invalidated the plumbing subcontractor’s lien.

In a Florida case, Viking Builders v. Felices, 391 So.2d 302 (Fla. 1980), a newly constructed home was occupied by the new owners in October and the contractor installed weep holes and moved a thermostat after the first of the year. The contractor argued that the substantial/trivial test was impractical in the construction industry and that the last item of labor or material to which the owner was entitled to under the contract should be the test of when the last work was done. The court was sympathetic but invalidated the contractor’s lien saying “the work was too remote in time and too unsubstantial and too trivial in quantity to extend the time for filing.”

The following are some examples of work which the courts held to be trivial even though these items remained to be done: painting window panels under the direction of the architect to protect them from cracking in the sun; replacement of a defective part of a lock of minimal value; replacement of defective wood and stone work; cutting the lawn; trimming the shrubbery; replacing broken window panes; dash coating the rear of the building against rain when a heavy rain disclosed a leak; installation of electrical fixtures which had been intentionally left out by the home builder so the home buyer could select his own fixtures; and installation of a small chimney door 8 by 10 inches in size which was supplied to replace one that had been stolen.

Where materials are furnished or labor performed at the request of the owner to remedy defects, the question of bad faith on the part of the lien claimant is eliminated. The Utah Supreme Court has said, “The element of work done at the owner’s request has had considerable weight in working an extension of time.” Wilcox v. Cloward, 88 Utah 503, 517, 56 P.2d 1, 7 (1936). Some court cases point out that the owner hardly can assert that the contract had been completed when he, himself, required certain matters to be done.