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August 11, 2022 Construction 101

Statutory Remedies for Non-Payment on Public and Private Construction Projects

John J. Gazzola

This article summarizes statutory remedies available to contractors, subcontractors and material suppliers when upstream parties fail or refuse to release payments on public and private construction projects.  Entities furnishing work or materials have several statutory means to enforce their rights to payment, including mechanic’s liens, payment bond claims, and/or claims for violation of state prompt payment laws.  While their requirements may vary by project and state, these remedies should be at the forefront of every practitioner’s mind when faced with a dispute over payment.

State mechanic’s lien laws provide entities furnishing work or services to private construction projects with a security interest in the real property improved.

A mechanic’s lien is a statutorily created interest in real property and/or the improvements upon it available to those who have improved the real property through their work or services.  This interest is created to ensure that those who improved the property, such as contractors, subcontractors, and material suppliers, have a mechanism to obtain payment for their work, even if they do not have a contract with the owner of the property improved.

The ability to pursue a lien despite lack of privity with the project owner makes the mechanic’s lien advantageous for lower-tier contractors and suppliers.  If a lien is perfected and enforced, the real property to which the lien attaches is sold and the lien claimant is reimbursed for the work or services it performed from the proceeds of the sale.  The prospect of sale can complicate project financing.  For this reason, even the prospect of a lien gives a claimant significant leverage in a dispute over payment.

Liens are creatures of statute and their requirements vary by state.  As set forth below, the lien laws of Pennsylvania and New Jersey illustrate the extent to which these requirements can vary across states, and even those adjoining one another.

49 PS § 1101 et seq.
New Jersey
NJSA 2A:44A-1 et seq.

Contractor, subcontractor, and sub-subcontractor. Third-tier subcontractors are explicitly excluded from the class of claimants.

Any contractor, subcontractor or supplier who provides work, services, material or equipment pursuant to a contract (including first, second and third-tier subcontractors)
Pre-Claim Notice Subcontractors must provide 30 days’ written notice of intent to file lien claim For non-residential projects, no pre-claim notice is required
Deadline to File Lien Claim Within six months after completion of the claimant’s work For non-residential projects, 90 days following the date the last work, services, material or equipment was provided for which payment is claimed
Service Claimant must serve notice of filing of the lien claim to the owner within one month after filing the lien claim Claimant must serve the owner, contractor, and subcontractor against whom the claim is asserted (if any) with the claim within 10 days following the lodging of record of the lien claim
Lien Claim Form Provided in Statute No, but Section 1503 sets forth the contents required of the lien claim Yes. NJSA 2A:44A-8
Deadline to Commence Action to Enforce Lien Two years from the date of filing the lien claim, unless extended in writing by the owner One year of the date of the last provision of work, services, material or equipment, payment for which the lien claim was filed, or within 30 days of receipt of written demand to do so

Clearly, mechanic’s liens do not offer a one-size-fits-all approach to reimbursement.  Nuances relating to notice, service, and procedure are common stumbling blocks on the path to payment.  Even a simple error in procedure or form can be fatal to the success of a claim. Thus, to perfect a lien, the claimant must appreciate and satisfy its jurisdiction’s statutory requirements.

The Miller Act and state Little Miller Acts enable contractors, subcontractors and material suppliers to file claims against payment bonds to recover payments due and owing on public construction projects.

Mechanic’s liens cannot attach to public property.  Thus, the security interest described above is not available to those furnishing labor and materials to public construction projects.  Congress passed the Miller Act in 1935 to provide contractors with an alternative means of securing payment for their work and services: the payment bond.  A payment bond is a surety bond guaranteeing payment for work performed on a construction project and is intended to protect those supplying labor and material on public projects from non-payment.  The Miller Act requires that payment bonds be furnished on projects involving more than $100,000 of construction, alteration, or repair of any public building or public work of the Federal Government.

The Miller Act permits every person that has furnished labor or material in carrying out the work provided for in a contract for which a payment bond is furnished, and that has not been paid in full within 90 days after it furnished the last of its labor or materials, to bring a civil action on the payment bond for the amount it has not been paid. Potential claimants are limited to first and second-tier subcontractors.  A second-tier claimant must first provide written notice of its claim to the prime contractor who furnished the bond within 90 days of last performing work giving rise to its claim.  Claims against payment bonds must be brought within one year after the day on which the claimant last furnished labor or material giving rise to its claim in the District Court in which the contract was to be performed and executed.

States have followed in the federal government’s footsteps and passed “Little Miller Acts” which require payment bonds on state construction projects of specified monetary thresholds.  Generally, the Little Miller Acts are modeled after the Miller Act and therefore, share more consistency than their lien laws. For example, both Pennsylvania and New Jersey require: (1) that payment bonds be in an amount not less than 100% of the contract value; (2) second-tier subcontractors to notify the bond principal (typically the general contractor) in writing of intent to file a bond claim; and (3) bond claims be initiated within one year of performing work.  Nevertheless, nuances across states do exist and close attention to the particularities of each Little Miller Act is critical to the success of a payment bond claim.

Prompt payment laws provide contractors and/or subcontractors additional protection and leverage in payment disputes.

A large majority of states have passed prompt payment laws which identify deadlines by which payments must be rendered on construction projects and provide for penalties when payments are wrongfully withheld.  These laws can apply to both public and private projects.

Generally, prompt payment laws require that payments for work performed in accordance with the contract be made within certain time periods (e.g., 20-30 calendar days after an invoice). The laws also require upstream parties to notify the payee in writing of the reasons for non-payment and to release payments that are not disputed.  If these requirements are not satisfied or if withholdings are made in bad faith, the payee can suspend performance, collect interest on the amount withheld, and even recover attorneys' fees incurred to recover payments due. Many states prohibit waiver of these protections in construction contracts.  Thus, prompt payment laws can provide significant protection and leverage to contractors and subcontractors before, during and after a project. 

If a payment dispute is not resolved and the claimant initiates litigation or arbitration, in addition to its claim for breach of contract, it should state a claim for violation of the applicable prompt payment law (if available). Proving a bad faith withholding is a relatively high burden, but if proven, the award of fees and interest will be a substantial recovery for a claimant who has been denied payment during the pendency of a dispute.


These statutory remedies provide contractors, subcontractors and material suppliers with avenues of relief as well as protection and leverage during a payment dispute.  Payment bond claims and mechanic’s liens offer the claimant security because recovery is not dependent upon the solvency of a project owner or prime contractor.  State prompt pay laws inject the prospect that the upstream party may be liable over and above the amount it withheld from the claimant and in some states, even permit the claimant to suspend its performance on the project during the pendency of a dispute.

These remedies are creatures of statute and the protections they afford are conditioned on strict compliance with the prescribed statutory requirements.  Failure to satisfy any requirements—especially those relating to notice, service, and substantiation—can be fatal to a claim.  Thus, when a payment dispute arises, a deep understanding of the available statutory remedies and a mastery of their requirements are the keys to achieving a successful recovery for your client.

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John J. Gazzola, Esq.

Troutman Pepper Hamilton Sanders LLP, Philadelphia, PA | Division 1 & Young Lawyers Division