How to File a Mechanics Lien in New Jersey—Don’t Forget the Written Contract
When thinking about a filing a mechanic’s lien in New Jersey, we typically focus on the right form, where to record, and any applicable pre-lien notices. In almost every state, you can enforce your mechanics lien rights even with a verbal contract (on the other, this is not recommended). But New Jersey is distinctly different. As a condition to recording a New Jersey mechanic’s lien, you must have a written contract. Let us discuss this subject.
The written requirement applies to all possible New Jersey mechanics lien claimants, whether design professionals, the prime, subcontractors, suppliers, and equipment lessors.
This New Jersey lien requirement also applies to all projects, whether residential, commercial, or industrial.
But what type of writing will suffice? You will be happy to know a comprehensive agreement is not required. You do not need a fifteen page detailed contract. The statute simply states it must be “in writing”, specifying the price (and presumably a general description of the work), as well as the property and the parties. It appears that a simple quote, proposal, or even purchase order would suffice for mechanics lien purposes. Nor is there a requirement to insert such provisions as: start and stop dates, exclusions, warranties, payment terms, allowances, arbitration, termination and default, or any other detailed provisions. Of course, it is our recommendation you have a more comprehensive agreement, but we’re only talking “bare bones” New Jersey mechanic’s lien law here.
So far so good, because most people acknowledge the benefit of some written contract. But New Jersey mechanic’s lien law goes much too far and requires change orders or extras be in writing. We all know that owners or job superintendents typically give verbal field directives and this is not always reduced to writing. In fact, many times we follow up with a written change order which is never signed. You don’t want to jeopardize a mechanic’s lien in New Jersey, so what do you do?
Specifically, what do you do if you follow orders and perform the extra, follow-up with a written change order, and get the runaround in not having it signed? The best thing to do is write a written confirmation with a general description of the work, proposed pricing, and any time extensions. If the other side refuses to sign, you can argue waiver or estoppel to the judge. Call us as we have one of these forms. This is even more important when you realize change orders can legally be included in the New Jersey lien.
The good news is that as of 2011, material suppliers satisfy this requirement by delivery order slips that can be signed by any contractor or agent at the site upon delivery. Even better, the statue goes so far as defining a signature as merely a mark or symbol used to authorize receipt of the material. Apparently someone simply signing “OK” on the delivery slip would be sufficient (New Jersey Mechanics Lien Statutes 2A: 44A-2).
So when it comes to filing a New Jersey mechanic’s lien, don’t give the other side any the defenses. Such a New Jersey lien is too valuable to be discarded on a technicality.