I have a contract with a GC for a commercial construction project in Michigan that was not paid. I have sent multiple invoices and it has been six months. I did not submit a notice of furnishing because I didn't know it was required. I am a subcontractor Do I have any recourse? I have no contact with the owner.
Before answering your question about serving a Notice of Furnishing, it's critical to know when you last furnished labor and materials for this project. A lien must be recorded within 90 days of your last date of furnishing labor or materials for the improvement to the project (property). Your question indicates that you've sent multiple invoices over the past 6 months. Your lien rights may already have expired.
However, if you did furnish labor or materials within the last 90 days, but didn't send a Notice of Furnishing, do so now.
Two reasons why --
1. If the Owner failed to record a Notice of Commencement, this failure serves to extend the time for subcontractors and suppliers to serve a Notice of Furnishing.
Under Section 108(10) of the Michigan Construction Lien Act, a subcontractor or supplier has up to 20 days after a Notice of Commencement is recorded to serve their Notice of Furnishing. Said another way, if the Owner never recorded a Notice of Commencement, you have up until the day you record your Claim of Lien to serve a Notice of Furnishing.
2. Under Section 109(6) of the Act, failing to provide timely notice of furnishing does not defeat a lien claimant's right to a construction lien for work performed or materials furnished by the lien claimant before the service of the notice of furnishing except to the extent that payments were made by or on behalf of the owner or lessee to the contractor pursuant to either a contractor's sworn statement or a waiver of lien in accordance with this act for work performed or material delivered by the lien claimant.
In plain English, this means your lien might survive if the owner didn't pay according to the contractor's sworn statement or didn't receive your lien waivers covering your work.
Lack of notice, late notice, is a defense to a lien claim that an owner or lessee must raise. Their own inactions may have created cracks through which your lien claim can prevail.
But if your last date of work was more than 90 days ago, you don't have lien rights and no amount of notice will cure that problem.