I have a job in Allston, Ma we have delivered material to the job some of the material has been installed some material is just sitting on the job site and some of the material (Our Customer) has moved to his office for storing. The subcontractor (Our Customer) Contract has now been terminated with the General Contractor. I need to know what portion of the material do we have Lien Rights on.
The Massachusetts Mechanic’s Lien Statute, General Laws Chapter
254, Section 4, applies to Subcontractors Liens and sub-subcontractors, which
you appear to be based on your question. A Section 4 lien allows for a person
or entity who furnishes labor or who furnishes material, or both labor and
material, or furnishes rental equipment, appliances or tools, or who performs
professional services, under a written contract with a contractor, or with a
subcontractor of such contractor (that appears to be you) to establish a lien subject
to several requirements that must be met, including recording in time. There
are statutory time deadlines that must be complied with along with statutory
forms that must be filed with the registry of deeds for the county where the
property is located.
Here, your company would be claiming a lien under Section 4 because
it has no direct contractual relationship with the original contractor (i.e.,
you are a sub-subcontractor). Accordingly, the amount of your lien cannot 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 the work, given written notice of identification by certified mail return receipt requested to the original contractor in substantially the form set forth in Section 4.
So, to answer your question, it may come down to whether your company (as a sub-subcontractor) recorded a notice of identification within thirty days of the commencement of your work. If not, based on the GC’s contract having been terminated, it is possible your company may have lost the ability to lien for the full amount due as the amount is limited to the amount then due under the contract between the contractor (i.e., the general contractor) and the subcontractor. It is always best practice to record a notice of identification when you are a sub-sub to protect against this. However, you should immediately consult with a Massachusetts construction attorney for specific guidance on your lien rights as there are other details that need to be explored to determine if there are defenses to your lien rights under Mass. G. L. c. 254, Section 4.