Here’s a Case in Oregon where One Claimant’s Lien Deadline Was Extended, Thanks in Part to a Change Order
In Oregon, the mechanic’s lien should be filed within 75 days from last furnishing materials or services. So how did one subcontractor file a valid lien nearly a year after its technical last furnishing? The answer is in the change order!
At a Glance: Protecting Oregon Mechanic’s Lien Rights
The preliminary notice deadline for private Oregon projects can sneak up on you. You should serve a Notice of Right to Lien upon the owner within 8 business days from first furnishing materials or services. A late notice may be served, but the lien, when later filed, will only be effective for materials and services provided 8 business days prior to serving the notice and thereafter.
The mechanic’s lien deadline is 75 days from last furnishing materials or services, or within 75 days from completion, whichever is earlier. Suit to enforce the lien should be filed within 120 days from filing the lien.
Bethlehem Construction, Inc. v Portland General Electric Company
Here’s a quick timeline for Bethlehem Construction, Inc. (“Subcontractor”) furnishings & subsequent lien filing:
– Subcontractor finished furnishing under the original contract in April 2015 ($122,851 contract)
– Subcontractor was called back to the job in December 2015 for additional work, identified under a change order ($578.13 change order)
– Subcontractor filed a mechanic’s lien in January 2016 for furnishings under original contract and additional change order
Obviously, if the subcontractor’s last furnishing was in April 2015, the lien filing date of January 2016 would have been far beyond the “75 day rule.” At least that was the argument made by the opposing parties. However, the change order that was issued for the subcontractor’s additional work in December 2015 directly referenced the original contract.
For the Court of Appeals, the change order was key: the change order referenced the original contract, which meant both the April furnishing and December furnishing were under the same contract.
“The document was entitled ‘Change Order Request,’ had the original contract number and name in the ‘reference’ field and specified the ‘scope of change’ to the original contract. That document evidences Owner and Subcontractor shared intention that the later work and the earlier work comprised two parts of one single contract.”
But wait – isn’t a furnishing of less than $600 a bit low to be “significant” for a last furnishing amount – perhaps even trivial? According to Blake Robinson in his article Oregon Court of Appeals Clarifies Timing Rule for Constructions Liens, the furnishing of less than $600 wasn’t trivial… not even trifling.
“The court also concluded that the later work was not ‘trivial or trifling’—which was significant because the 75-day deadline to record a lien is not extended by the contractor or subcontractor returning to the project to perform ‘some trifling work or a few odds and ends after apparently completing the job and removing its equipment.’ Here, the later work was not trivial or trifling because the Change Order Request specifically required the work, and the work was ‘significant to the project.'”
Survive the Oregon Trail, I Mean the Oregon Mechanic’s Lien
Oregon’s statute is clear: the lien deadline is 75 days from last furnishing or 75 days from completion. Ensure your lien rights are secure by timely filing your lien and always have proper backup documentation, such as change orders, to support your claim.
Oh, and watch out, you wouldn’t want to die of dysentery.
C’mon, I can’t write about Oregon without a solid reference to the greatest computer game of all time.