Change Order and Lien Rights on a Roofing Subcontract
A roofing subcontractor has a $180,000 contract with a general contractor for a multifamily project. The subcontract requires written change orders signed by the GC before extra work is performed. Mid-project, the GC's superintendent verbally directs the roofer to add crickets and additional drains at four roof areas because of ponding observed after a rain. The roofer performs the work, which costs $14,500 in labor and materials, and submits an invoice. The GC refuses to pay, saying no written change order exists. The roofer has 60 days left to complete the base contract and has not yet sent any preliminary lien notice. The state requires a preliminary notice within 20 days of first furnishing labor or materials to preserve lien rights on private projects.
1. What should the subcontractor have done differently when the superintendent gave the verbal direction, and what can it do now?
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The subcontractor should have refused to perform extra work without a written change order signed by the GC as the subcontract requires, or at minimum sent a written confirmation of the direction and a written change order request before starting. Now the subcontractor should immediately send a written change order request documenting the superintendent's direction, the date, the scope, and the $14,500 cost, and request written approval. It should also review the subcontract's notice and claim provisions, which may require notice within a short period. The subcontractor should preserve evidence (photos, superintendent's name, daily reports) and consider a claim for the work if the GC refuses to sign, while recognizing that the written-change-order clause may bar payment.
2. What is the status of the subcontractor's lien rights, and what action is required?
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The subcontractor has likely already missed the 20-day preliminary notice deadline because it has been furnishing labor and materials for some time. It should send the preliminary notice immediately; in many states a late notice may still preserve lien rights for work furnished after the notice, but not for earlier work. The subcontractor should also send a written demand for payment and, if unpaid, prepare to record a lien within the state's deadline after last furnishing. It must not wait until the end of the job. The subcontractor should consult the state's lien statute and its own attorney to confirm deadlines and the effect of the late notice.
3. How should the subcontractor manage the remaining 60 days of work to protect its position?
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The subcontractor should continue performing the base contract to avoid a breach claim, but should document all work, send monthly progress billings, and send written notice of the disputed change order. It should not stop work without checking the contract's suspension and termination provisions. It should keep a separate accounting of the extra work, preserve lien rights by meeting all notice and recording deadlines, and consider requesting a joint check or payment bond information from the GC. If payment is not resolved, it should consult counsel about a lien or bond claim before the deadlines expire.