FAQs

If my last day of work was over ninety days ago, do I still have lien rights?

In many situations, yes. If the project is owned by any unit of local, state or federal government, then your lien rights on contract funds usually will be good for more than nineth days. If your contract on a private job was directly with the owner, then you have four months to perfect your lien against all parties and up to two years to perfect your lien against the owner directly. If you are a subcontractor and have been listed correctly on the general contractor’s sworn statements to the owner, then your failure to serve a ninety day notice will be excused, and you may record your lien within four months of your last day of work.

Will time I spend working on a "Punch List" for a certain project count in figuring my last day of work?

The answer here is maybe. If only minor punch list items are involved, then such work will not extend your lien rights. However, if the punch list work requires substantial work which is required for the performance of your contract, it may well count in figuring your last day of work.

What is the greatest source of problems in obtaining payment for construction?

Oral agreements for “extra work” present the most problems. All agreements to do extra work should be in writing.

If I do everything right, am I guaranteed to get paid?

Not necessarily. The Illinois Mechanics’ Lien Act is a product of compromises between directly competing interests, i.e. those of owners and those of contractors and subcontractors. However, if you act promptly to protect your rights, you maximize the

Who is the best mechanics' lien attorney for me?

The best mechanics’ lien attorney is one who deals with mechanics’ liens on a daily basis. As one wise old saw goes, “It takes an afternoon to learn 80% of the law regarding mechanics’ liens and a career to learn the remaining 20%.” You want someone who knows the law, knows construction, and who obtains the best possible results as efficiently and expeditiously as is possible.

Why would I need to file a bond claim on a public job if I've already filed a mechanics' lien claim?

Public lien claims, which are against public funds as opposed to the public property itself, only attach to money “due or to become due” to the contractor directly above you. If backcharges, defaults or other problems result in there being no funds “due or to become due” the contractor immediately above you, then your public lien claim will be worthless. Public payment bonds and bond claims have been developed to fill this gap.

Is a "No Lien" contract valid?

Until recently, such contracts were vaild. However, under the current Illinois Mechanics’ Lien Act, such contracts are void as against the public policy.

What happens if my general contractor or owner files for bankruptcy?

If you have a valid mechanics’ lien claim, then most likely you will be paid if the general contractor goes bankrupt. Same with an owner who goes bankrupt, although there can be more problems. Once a bankruptcy is filed, a modification of the automatic stay imposed under federal law must be obtained before foreclosing upon your mechanics’ lien claim in state court. If you do not have a mechanics’ lien claim and the general contractor or owner goes bankrupt, you may well be out of luck.

How do I fill out a "Waiver of Lien to Date?"

The words “to date” on the waiver refer to the dates of the work for which the waiver is being given in return for partial payment. Care must be taken not to inadvertently insert the day upon which the waiver is executed as this date.

What do I do when a "Waiver of Lien" is requested from me before I get paid?

The simple answer is there is no good reason to surrender your Waiver of Lien until you receive the payment covered by the waiver. If possible, a “closing” should be set-up where the waiver can be exchanged for payment. There are other ways to handle this as well. An alarm bell should go off if a contractor insists that you supply him with a waiver before payment.

Anthony G. Suizzo

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