Design professionals, architects and engineers, are integral and important parts of the construction world. They may not perform the same functions as your average contractor, but design professionals still face issues, such as non-payment, familiar to other construction participants. Some states do not specifically include these professionals in their lien law statutes, and in a few, they may even be expressly forbidden from filing a mechanics lien. This can create problems, and leave design professionals without many options when they go unpaid. Pennsylvania is attempting to amend their laws to expand mechanics lien rights protection to all architects and engineers.
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The Current Law
Currently, Pennsylvania only extends mechanics lien rights to design professionals with a direct contract with the owner. The specific definitions of contractors and subcontractors in 49 P.S. § 1201 reads:
“Contractor” means one who, by contract with the owner, express or implied, erects, constructs, alters or repairs an improvement or any part thereof or furnishes labor, skill or superintendence thereto; or supplies or hauls materials, fixtures, machinery or equipment reasonably necessary for and actually used therein; or any or all of the foregoing, whether as superintendent, builder or materialman. The term also includes an architect or engineer who, by contract with the owner, express or implied, in addition to the preparation of drawings, specifications and contract documents also superintends or supervises any such erection, construction, alteration or repair.
“Subcontractor” means one who, by contract with the contractor, or pursuant to a contract with a subcontractor in direct privity of a contract with a contractor, express or implied, erects, constructs, alters or repairs an improvement or any part thereof; or furnishes labor, skill or superintendence thereto; or supplies or hauls materials, fixtures, machinery or equipment reasonably necessary for and actually used therein; or any or all of the foregoing, whether as superintendent, builder or materialman. The term does not include an architect or engineer who contracts with a contractor or subcontractor, or a person who contracts with a materialman or a person who contracts with a subcontractor not in direct privity of a contract with a contractor.
Architects and engineers are expressly excluded from mechanics lien protection if they are not contracted with the owner. This leaves some parties on a construction project without the right to use a powerful legal tool available to other parties on the project, and that can protect these parties from non-payment.
What is Being Proposed?
The proposed legislation, House Bill 430, looks to amend the Pennsylvania’s Mechanics Lien Law of 1963 to include “architect, engineer or other licensed professional” in the definitions of “contractor” and “subcontractor.” The amendment, if passed, will expand mechanics lien rights to all design professionals associated with construction projects, without regard to whom they contracted with. Expansion of these lien rights will prevent potential professional lien claimants from being unprotected by the state’s mechanics lien law.
