When is the “Last Day of Work” for Perfecting an Illinois Mechanic’s Lien?
A subcontractor on a construction project does not have any contractual relationship with the Owner of the property where it either performs its work or delivers materials, so the subcontractor or material supplier does not have contract rights to collect payment from the property owner. The subcontractor, after all, has a contract with the general contractor and the property owner often has no idea who the subcontractor is or that it is working on the property.
A Subcontractor Has the Right to Record a Lien Against the Property Where It Performs Work.
The Illinois Mechanics Lien Act gives the subcontractor who performs work which improves private property a right or lien against the property to collect the value of the work that it has performed or of the materials which it provided, ultimately by foreclosing on the property, and forcing the sale of the property to satisfy the subcontractor’s claim. The Act attempts to strike a balance between two innocent parties — 1) a subcontractor who has done work which improves the property but hasn’t been paid by the general contractor and 2) a property owner who has no agreement with or knowledge of the subcontractor, and has already paid the general contractor for the work performed by the subcontractor.
A Subcontractor Must Comply With Strict Requirements To Enforce Or “Perfect” Its Lien.
One way that the Mechanics Lien Act attempts to strike a balance with the property owner in exchange for making it responsible to pay a subcontractor with whom the property owner had no contractual agreement, is by imposing strict deadlines and technical notice requirements on the subcontractor to inform the property owner of its claim.
While a subcontractor can satisfy the notice requirement if it has been fortunate enough that the general contractor has accurately included its name and contract on the general contractor’s sworn statement to the property owner, in most instances the subcontractor will have to serve its own notice of its subcontractor’s lien.
Subcontractor Must Serve Notice Of Its Lien Within 90 Days Of Last Day Of Work.
A subcontractor is required by section 24(a) of the Mechanics Lien Act to serve its written notice of lien claim within 90 days after the completion of its work. 770 ILCS 60/24(a). This is a substantive requirement, not a guideline that can be crossed. If it is not satisfied the lien claim is lost.
One might think that the date that the work was completed or the “last day of work” would be easily determined and recorded but that isn’t always the case. A construction project can be chaotic and record keeping can be incomplete and memories may lapse especially nearing the 90-day deadline.
Documentation Of The Last Day Of Work Is Critical.
A subcontractor should have records like the following to establish the last day:
- Actual delivery tickets
- Invoices documenting the date of work performed,
- Work records
- Job logs
The 90-day deadline runs from the last day of work that is essential to the completion of the subcontractor’s contract.
- The subcontractor cannot revive the 90 day period by returning to the job site to perform trivial or insubstantial work.
- It cannot be extended by repair of defective work or replacement of defective material.
- It cannot be extended by warranty work performed on the completed installation.
As one may guess, if there is a dispute about whether work performed within the 90 day deadline period is trivial or insubstantial, or repair or warranty work, the contentions may be very fact specific and expensive to prove. The subcontractor has the burden of proving his lien claim and the battle may be very uphill. The wisest course is to document well the work performed and the dates of performance and to timely contact someone skilled in the preparation of Illinois Mechanics Liens within 30 to 60 days after the subcontractor’s work is completed.