TEN NEW YEAR’S RESOLUTIONS FOR CONTRACTORS-2021

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   As I sit down to write my annual list of resolutions for contractors, I am amazed at how much things changed in 2020. Construction was going well and then, in March 2020, COVID-19 hit. At first, we thought it was going to be a disaster for the construction industry. States, cities and towns shut down projects and many applied for PPP loans. Then, something amazing happened. Construction was considered an essential service and everyone was back to work.  That said, the work world changed: companies were donating their PPE to frontline workers, COVID-19 protocols had to be followed and paperwork had to be filed. Everyone was scrambling to figure out how to comply and keep their businesses going. So, you may or may not ask, what was I, as a construction lawyer doing? I spent March and April thinking about the new risks contractors/construction companies were facing and developing contract clauses to protect the industry. I wrote a number of blog posts with clauses to add to your contra

Who Can File a Mechanic's Lien in Massachusetts?

Under Massachusett law,

A mechanic's lien is a statutory lien on real property for the payment of a sum owed on a project by an owner of the liened real property to a contractor or subcontractor or material person for labor and/or materials furnished for improvements to the liened real property during the course of construction. See, Nat'l Lumber Co. v. Le Francois Constr. Corp., No. 97WAD021, 1998 WL 787547, at *2 (Mass. App. Div. Oct. 28, 1998), aff'd, 430 Mass. 663, 723 N.E.2d 10 (2000).

This means that contractors, subcontractors and suppliers, as well as landscapers, driveway installers, septic tank repair companies and subs of subcontractors can file liens. In addition, "a person or his assignee, agent, authorized representative or third party beneficiary, to whom amounts are due or for whose benefit amounts are computed and due for, or on the basis of, the personal labor of such person, may file a lien to secure the payment of such unpaid amounts including interest and agreed penalties for failure to pay the same."

However, in order to file a lien workers must have a written contract with the owner or "or with any person acting for, on behalf of, or with the consent of such owner,"or "with a contractor, or with a subcontractor of such contractor."

A written contract is defined as, "any written contract enforceable under the laws of the commonwealth." A written contract is defined as, "a writing or series of writings, taken together, must contain the essential terms of a contract, such as price, quantity, and type of materials or services. Cf Harris v. Moynihan Lumber of Beverly, Inc., 999 Mass. App. Div. 113 (finding that a series of detailed documents taken together constituted a contract for purposes of the statute).

An important requirement to keep in mind is that a sub of a subcontractor must file a Notice of Identification under section 4 of the statute, or he can only collect to the extent that money is owed to the subcontractor, "If the person claiming a lien under this section has no direct contractual relationship with the original contractor, except for liens for labor by persons defined in section one of this chapter, the amount of such lien shall not exceed the amount due or to become due under the subcontract between the original contractor and the subcontractor whose work includes the work of the person claiming the lien as of the date such person files his notice of contract, unless the person claiming such lien has, within thirty days of commencement of his performance, given written notice of identification by certified mail return receipt requested to the original contractor in substantially the following form..."

So, the mechanic's lien statute broadly defines who may file a lien, but it is important to define the entity that is filing in order to know which section of the statute to file under, and if other actions are required.

I would like to credit The Massachusetts Mechanic's Lien Law Chapter 3, by Robert V. Lizza for help in writing this post.

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