By: Michael E. Stearns, Esq., Stearns, Roberts & Guttentag, LLC

Most lienors know that they must record their construction lien within ninety days of their “last work.” But just what constitutes “last work” for the purposes of a construction lien? Perhaps the most common question in this regard is whether “punch list” work counts as “last work.” The answer to that question can depend on the nature of the work, the timing of the work and the magnitude of the work in relation to the overall work performed by the lienor.

One court has defined punch list work (fairly accurately in this writer’s opinion) as “a final list of small items requiring completion of finishing, corrective or remedial work under a construction contract.” In that case, the contractor pointed to work performed to move an air conditioning thermostat and to install some weep holes (presumably in windows) as its last work performed for the purposes of its lien. The court found this work to be in the nature of warranty work and found the lien untimely. The court stated that the lien was recorded within 90 days this work but not within 90 days of completion of the “punch list” work. The opinion does not describe the punch list work or state when it was completed though it does say that the air condition had been working “for some time” prior to the relocation of the thermostat. Relying on earlier decisions as precedent, the court found that the work was too remote in time and too insubstantial in quantity to extend the time for recording a lien. The court described the appropriate test for whether last work counts as the “substantial-trivial” test. While in this case it appears that the correct result was reached, in this writer’s opinion the “substantial-trivial” test is insufficient in that it fails to take into account other relevant factors as discussed below.

In another case, a court applied the substantial-trivial test in determining that a subcontractor’s lawsuit was not filed within one year of its last work on a public construction project as required by statute. In that case, the architect issued a certificate of substantial completion on August 20, 1993, more than one year prior to the date the subcontractor filed its lawsuit. In the lawsuit, the subcontractor claimed it last provided punch list work on September 15, 1993 making the lawsuit timely filed. Without describing the nature of the punch list work, the court determined that it was “trivial and unsubstantial” when compared to the entire contract and therefore did not extend the time to file suit.

In the author’s opinion, this decision is troubling because it implies that “punch list” work might not even be considered in a “last work” analysis. In my experience both as a construction lawyer and certified building contractor I do not believe such a bright line rule is appropriate. Punch list work can include completion work, work to correct your own deficiencies as well as work to correct damage to your work caused by others. In addition, punch list work is not always unsubstantial. As long as punch list work is performed during the natural course of the completion of a project, there is little justification to exclude it from the “last work” analysis.

It is submitted that far better test is that set forth by the Fourth District Court of Appeals in its decision in Aronson v. Keating. The “Aronson” test, as it has become to be known, includes four distinct factors; 1) whether the work was done in good faith, 2) whether the work was done in a reasonable time, 3) whether the work was done pursuant to the terms of the lienor’s contract, and 4) whether the work was necessary to a “finished job.”

Aronson’s “good faith” requirement weeds out claims where a lienor returns to the project simply to attempt to extend the time period within which to record his lien. Under the second prong, the longer it has been since the lienor was otherwise at the project working, the less likely the specific work relied upon as “last work” will be found to support a timely lien or bond claim. The third prong is probably less instructive as both punch list work and warranty work (which clearly will not support a lien) must be considered as being performed “pursuant to the terms of the lienor’s contract.” Warranty work, however, would be eliminated from consideration by the final prong of the test since it is not typically necessary for a “finished job” but rather is performed due to some post completion failure.

Under the Aronson test, an attempt by a contractor to resolve outstanding issues by sending a fax outlining extra costs for items requested by the owner was found to constitute “last work” where the fax was sent before the owner terminated the contract and the contract provided that the contractor could not make changes without the owner’s written authorization. On the other hand, in another case services provided to secure a project provided after the contractor ceased work were not found to constitute “last work” under Aronson.

When considering whether the specific work relied upon constitutes “last work” for the purposes of a lien or bond claim, courts will look to the timing of the work, the magnitude of the work and whether the work was performed in good faith. Issuance of a Certificate of Occupancy or Certificate of Substantial Completion may figure into a court’s analysis as could whether the lienor has represented that it was 100% complete in a payment application. It is probably also true that completion work or work to correct damage to your work caused by others stands a better chance of being considered “last work” than correcting self-inflicted deficiencies though those familiar with construction know that this is also often part of the construction process.

If there is a moral to this story, it is that there is no reason to unnecessarily make “last work” an issue with your lien or bond claim. Litigation is costly and time consuming enough without adding additional expensive and potentially fatal issues to your claim. This aspect of your claim is entirely under your control. Why make “last work” an issue in your lawsuit?

About the Author Michael E. Stearns has practiced exclusively in the area of Construction Law since 1996 and was designated as a Board Certified expert in construction law by the Florida Bar in 2005, the first year this designation was available. Mr. Stearns is “AV” rated by Martindale Hubble – the highest professional peer rating for legal ability and ethical standards. He is listed among the “Best Lawyers In America”, “Florida Super Lawyers” and “South Florida’s Top Lawyers”. Mr. Stearns got his start in the construction industry working as a carpenter while attending the University of Florida’s M.E. Rinker College of Building Construction where he received a Bachelor’s Degree in Building Construction. He has held a Florida State Certified Building Contractor’s license since 1989 and directed multi-million dollar construction projects as a project manager before attending law school and embarking on his legal career.

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