Jan 4, 2016

Fourth Circuit Narrows the Window for Filing Timely Liens Under the Public Works Act

On Nov. 4, 2015, the Louisiana Court of Appeals for the Fourth Circuit issued a currently unpublished opinion, which held that a subcontractor’s lien was premature when the subcontractor filed a statement of claim on a public works project before the formal recordation of acceptance by the owner. The court found that the requirements of La. R.S. 38:2242 were not met and that the statement of claim was prematurely filed. The court stated that La. R.S. 38:2242(B) permits a claimant on a public work to file its claim only “within forty-five days after the recordation of acceptance of the work.” Therefore, the Fourth Circuit affirmed the trial court’s granting of a mandamus to cancel the statement of claim.  

It is unclear whether the lien had been bonded off.  That fact may not matter, however, because the court held that “the right to payment under the bond is not at issue in this case at this time. Under the Act, as a prerequisite to making a claim under a statutory bond, a claimant must first comply with the provisions of La. R.S. 38:2242(B).”

With this new ruling, it is important to be aware that the Fourth Circuit has held that statements of claim on public works are timely filed only when filed within 45 days of the recordation of the acceptance of the work with the mortgage record’s office.  The Fourth Circuit Court of Appeals includes Orleans, St. Bernard and Plaquemines Parish.  At this time, it is unclear how other appellate courts or the Louisiana Supreme Court will respond under similar circumstances.


Written by:
Brian S. Schaps construction attorney

Brian S. Schaps
504 593 0656