Does Warranty Work Performed by a Sub-Contractor Extend the Deadline to File a Lien?

Under some states’ Construction Lien Acts, a contractor must record a construction lien within 90 days after the subcontractor last furnishes labor or material for an improvement. In Stock Building Supply, L.L.C. v. Parsley Homes of Mazuchet Harbor, L.L.C., No. 294098, the Michigan Court of Appeals held this year that performing “warranty work” to correct deficiencies in work that a subcontractor had already performed, or to correct defects in fixtures installed, does not constitute an “improvement” under the Michigan Construction Lien Act. The Court of Appeals determined that the distinguishing factor is whether the work conferred any value beyond the value furnished by the completion of the original work. Therefore, work performed to repair a leak in a whirlpool tub and to fix a toilet was warranty work, because it was necessary to provide what was originally contracted for – i.e., fully functioning plumbing fixtures.

In Oklahoma, the Court of Appeals recognized that “(t)he applicable time to serve pre-lien notice is not prior to performing labor or supplying materials; but rather, no later than seventy-five (75) days after the last date of work.”  The Court went on to state that under 42 O.S. §142.6(B), “the time period for pre-lien notice is not 75 days after the last date of work; it is 75 days after the lien claimant last supplied lienable services or materials on the job.”  Jones v. Purcell Investments, LLC, 2010 OK CIV APP 15, 231 P.3d 706 (2009).  While the language the Court used is different than that of the Michigan Court, it could very well be the case that an Oklahoma court would find that warranty work does not constitute supplying “lienable services or materials on the job.”

Sub-contractors would be well advised to not rely solely on warranty work to extend the ninety day deadline to file a lien under Oklahoma’s Mechanics and Materialmen’s Liens Act (or the 75 day deadline to serve the pre-lien notice).

Brian Huddleston

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