The Critical Role of Furnishing Dates and Your Lien Rights
A key to properly calculating mechanic’s lien and bond claim deadlines is knowing your first & last furnishing dates. Simple; date is a date, right? Oddly, determining your last furnishing date may sometimes be more difficult than it should be.
What is “Last Furnishing”
Generally, your last furnishing date is the date on which you last substantially furnish materials or perform services on a project. When clients ask how to determine their first & last furnishing dates, it frequently seems easier to explain what doesn’t count as a last furnishing. Typically, punch list work, warranty, or remediation will not extend your last furnishing date.
Can Last Furnishing Include Off-Site Work?
In some cases, yes, according to a recent legal decision reviewed by lawyer Chad Kopach.
In Timeliness of the Lien – Rethinking the “Date of Last Supply,” Kopach reviews a recent Ontario court decision, where the court determined the subcontractor’s lien was timely, even though the lien deadline was calculated based on an off-site last furnishing, and not the last date the subcontractor was physically on the job.
According to Kopach, parties on the ladder of supply often look to time sheets to determine the date of last furnishing.
“When determining if they still have time to lien, most subcontractors look to their time sheets to find out when their workers were last on site, thinking that they are out of time to lien if the last timesheet is dated more than 45 days ago.
Similarly, the owner and general contractor will often rely on site records (including log books and time sheets) to determine what subcontractors still have lien rights based on who was on site within the last 45 days.”
How will the court determine a claimant’s last furnishing? Kopach states a court may review the subcontract to determine whether off-site work would qualify as furnishing. At least, that’s where the court looked in this case.
Within the subcontract, the subcontractor was to provide additional “design and other preparatory work” during a scheduled shutdown. Thus, the court determined the last furnishing date used by the claimant was sufficient.
“Supply” Doesn’t Always Mean “Physically Supply”
Kopach reminds readers, the definition of “supply” may vary.
“…services and materials supplied to an improvement are supplied physically. Accordingly, in many cases a subcontractor’s date of last supply is the same day that the subcontractor was last physically on site.
However, the Act does not limit “supply” to mean only physical supply, and defines the supply of services as including “any work done or service performed upon or in respect of an improvement” (emphasis added).”
Although this case appears to be more “exception” & less “rule” it’s important to remember that a last furnishing date may not be the last date you were physically at the job site. Just be careful when determining your last furnishing date – always make sure it is substantial. And, of course, use the most conservative last furnishing date possible when calculating your deadlines. When in doubt, seek a legal opinion.