New York’s lien law is one of the most effective tools at your disposal when a project owner doesn’t pay you in full. There’s a catch, though- like all legal procedures, there are technical requirements that can cause your claim to fail if you overlook them.
In many states, general contractors, subcontractors, and suppliers must provide a Notice to Owner to secure their lien rights. In Florida and Pennsylvania, construction professionals have to serve this notice within 45 days after “first furnishing” work or materials to the project. While New York does not have a similar requirement, many courts have treated it as a best practice.
When Does First Furnishing Happen?
First furnishing generally occurs when services or supplies are delivered to the project site. For example, the countdown begins when a subcontractor starts to work or the supplier delivers materials. However, the clock may be triggered sooner than you expect.
Using Florida as an example, here are some nuances that most people probably aren’t aware of:
- Supplying rental equipment to the job site counts as first furnishing – but supplying hand tools does not. (Florida Statutes Section 713.01(13))
- In Essex Crane Rental v. Millman Construction Company, the District Court of Appeal of Florida, Third District, ruled that the act of first furnishing began when pieces of a crane were delivered to the project site, although it had yet to be assembled and used.
- There is an exception for specially-fabricated materials. In this case, a construction supplier must provide a notice to the owner within 45 days of starting to fabricate the materials.
The following steps do NOT constitute first furnishing in Florida:
- Providing submittals, shop drawings, and other forms of design.
- Selection of fungible materials away from the construction site. For example, a nurseryman does not first furnish shrubbery when it’s selected: the greenery must be installed.
- Off-site services are not regarded as first furnishing. The work must be done at the job site.
The best way to protect your lien rights is to ensure that preliminary notice is served on the project owner within the specified time frame after the first furnishing of labor or materials. In states that don’t have a preliminary notice requirement, a construction law attorney can advise you on what the courts regard as best practice.
Contact a Construction Law Attorney
It is critical that you observe the notice requirements in your state lien laws. Failure to do so can jeopardize your rights. At Rosen Law, LLC, our construction law attorneys represent contractors, subcontractors, and suppliers in preparing, filing, and enforcing mechanic’s liens. To schedule a consultation or get more information, please contact us today.