As construction projects become more complicated, so do the corresponding materials needed for each job. More often than not, suppliers are being asked to custom order these materials—many times specially fabricating the items.
Is it really special?
So what distinguishes a stock item from a custom one? Generally, the custom item can’t be easily used anywhere but on the jobsite for which it was ordered. Specially manufactured goods are not readily available in the marketplace and are made just for that one project.
Can you lien?
Materialmen who specially fabricate goods can file a lien. The issue, however, is when the clock starts to run. The general rule—that one can do so when goods are delivered to the jobsite or to the owner/contractor—doesn’t work in the case of specially fabricated goods.
These goods cannot generally be completed until they are actually manufactured, and the manufacturing process could take some time. Therefore, some courts have ruled that the start date for any notice period under the lien law begins to run when the supplier or materialman starts to fabricate the goods.
Do the goods have to be incorporated?
Another stumbling block for suppliers of specially fabricated goods is the general requirement that goods must be incorporated into the property for there to be a valid lien. In the case of specially fabricated goods, which may be rejected by the owner or contractor and not allowed to be delivered or incorporated into the property, the law says the supplier or materialman should be entitled to its lien.
Assuming all other conditions for filing a materialman’s lien have been met, a supplier would be wise to assume that the deadline for filing the lien starts to run on the earliest date the supplier was prevented from delivering the goods, or the date on which the supplier substantially completed the fabrication of these special goods.
Likewise, the required Notice to Owner should be forwarded 45 days from when the supplier begins to fabricate the materials.
Alexander Barthet is principal of The Barthet Firm, a 10-lawyer construction law practice that has been serving South Florida’s construction industry for more than 20 years. Learn more at www.thelienzone.com.
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