New Jersey construction lien claim, and the two clocks it runs on

Ninety days, counted from the last day you actually worked

2A:44A-6(a)(2) is the deadline: in all cases except those involving a residential construction contract, the lien claim form shall be lodged for record within ninety days following the date the last work, services, material or equipment was provided for which payment is claimed.

Two words in that sentence do the work. Provided, not invoiced and not billed. And for which payment is claimed, which ties the day to the work you are actually claiming for rather than to the last time anybody from your company was on the property.

2A:44A-6(d) closes the obvious gap. For purposes of the act, warranty or other service calls, or other work, materials or equipment provided after completion or termination of a claimant's contract, shall not be used to determine the last day that work, services, material or equipment was provided. Going back to adjust a damper in November does not restart a clock that ran out in October, and a punch list item after the contract is complete is in the same position.

On a residential construction contract the same subsection sets a different deadline, and it is not simply a longer one. The claim is lodged not later than ten days after the claimant receives the arbitrator's determination under 2A:44A-21(b)(8), and within one hundred and twenty days of the last day of work. Both, not either, and the arbitration itself only happens because a notice of unpaid balance was filed first.

Filing it is half. Serving it is the other half

2A:44A-6(b) is the sentence people skip. A lien shall not attach or be enforceable unless the lien claim is filed in the manner and form provided by sections 6 and 8, and a copy of it served in accordance with section 7. Two conditions joined by and.

2A:44A-7(a) sets the service: within ten days following the lodging for record, the claimant shall serve on the owner, and if any the contractor and subcontractor against whom the claim is asserted, a copy of the completed and signed lien claim marked received for filing or a similar stamp with the date and time it was received by the county clerk. So you serve the stamped copy, not the copy you walked in with.

The method is personal service as prescribed by the Rules of Court, or simultaneous registered or certified mail or commercial courier whose regular business is delivery service, together with ordinary mail addressed to the last known business or residence address. Simultaneous and together are both in the statute. It is two mailings, not a choice between them.

2A:44A-7(b) makes service a condition precedent to enforcement, then softens the ten days: late service does not preclude enforceability unless the party not timely served proves by a preponderance of the evidence that the late service has materially prejudiced its position. What that softening gives back it takes away in the next sentence, because disbursement of funds by an owner or contractor who has not been properly served, or a conveyance by an owner who has not been properly served, is prima facie evidence of material prejudice. On a live job money moves every week, so the safe reading is that the ten days are real.

The lien fund is a ceiling and it is not the same as your claim

Item 4 on the form calculates what you claim, A through G, ending at the total lien claim amount. 2A:44A-9 then decides how much of that there is anything behind.

Subsection a. caps the claim: the amount of a lien claim shall not exceed the unpaid portion of the contract price of the claimant's own contract for the work, services, material or equipment provided.

Subsection b. caps the fund. For a first tier or second tier claimant the lien fund shall not exceed the earned amount of the contract between the owner and the contractor, minus any payments made before service of a copy of the lien claim. For a third tier claimant it is the lesser of that and the earned amount of the contract between the contractor and the subcontractor above you. Subsection e. defines the earned amount as the contract price, unless the party obligated to perform has not completed performance, in which case it is the value of what was performed as determined in accordance with the contract.

Subsection d. is the one that ends cases. No lien fund exists if, at the time of service of a copy of the lien claim, the owner has fully paid the contractor for the work performed. That is another reason the ten day service clock matters: the fund is measured at service, and every day it waits is a day the owner can pay the general in good faith.

Subsection c. lists what does not shrink the fund, which is the part that helps you. Payments not in accordance with written contract provisions, payments yet to be earned when the claim was lodged, liquidated damages, collusive payments, use of retainage to pay a successor contractor after the claim is lodged, and setoffs or backcharges absent written agreement by the claimant. Subsection g. then closes the door below the third tier: no lien rights shall exist for other than first, second or third tier lien claimants.

One year to sue, or thirty days if they ask you to

2A:44A-14(a) says a claimant filing a lien claim shall forfeit all rights to enforce the lien, and shall immediately discharge it of record under section 30, if the claimant fails to commence an action in the Superior Court in the county where the property is situated to enforce the claim within one year of the date of the last provision of work, services, material or equipment for which the lien claim was filed.

Note what the year is counted from. Not the date you filed the lien, the same last day of work the ninety days ran from. Filing on day eighty nine leaves you eleven months, not twelve.

The second limb is shorter and it belongs to the other side. The same subsection forfeits the lien if you fail to sue within thirty days following receipt of written notice, by personal service or certified mail return receipt requested, from the owner, community association, contractor or subcontractor against whose account the claim is filed, requiring you to commence an action. An owner who wants the lien off the record can force the question inside a month.

2A:44A-14(b) adds the cost of ignoring it. A claimant who forfeits a lien under the section and then fails to discharge it of record is liable for the court costs and reasonable legal expenses including attorneys' fees of whoever has to get it discharged, and the court shall enter judgment for damages on top.

Where the lien sits against the mortgage on the property

2A:44A-10 says the lien attaches to the interest of the owner from and after the time of filing of the lien claim, and that a lien claim shall not, except as provided by sections 20 and 22, have priority over any mortgage, judgment or other lien or interest in real estate first recorded, lodged for record, filed or docketed.

So the default is last in line behind everything already on the record. The exception is the notice of unpaid balance: 2A:44A-20(b) gives a lien claim priority over a prior conveyance, lease or mortgage only if a notice was filed before that document was recorded, and 2A:44A-20(d) deems anyone acquiring an interest after the notice to have taken it knowing a lien claim was coming.

2A:44A-22(a) handles the construction loan. A mortgage recorded before your lien claim or your notice has priority to the extent that it secures funds advanced, or that the lender is obliged to advance, before that filing. What the loan has already funded is in front of you and the filing is what draws the line.

2A:44A-10 also says the lien claim is subject to the effect of a Notice of Settlement filed under P.L. 1979 chapter 406, which is the mechanism a closing uses to freeze the record while it completes. A sale that has filed one is not a sale you can step in front of by filing on the morning of the closing.

What has to be on the form, and the notarial block at the bottom

2A:44A-6(a)(1) says the lien claim form shall be signed, acknowledged and verified by oath of the claimant, setting forth the specific work or services performed or material or equipment provided pursuant to contract, and the claimant's identity and contractual relationship with the owner or community association and other known parties in the construction chain.

Verified by oath is why the sheet ends in front of a notary rather than with a signature line. The claimant's representation and verification block above it is the oath, and the seven numbered statements in it are the things being sworn to.

The statute prints two notarial blocks, one headed for an individual claimant and one for a corporate or limited liability claimant, and both are on this sheet. They are alternatives rather than two steps: an individual completes the first, a company the second. Printing only one of them would not be the form the statute prescribes, which is why the download carries both.

The property goes on by block and lot from the municipal tax map, with the municipality and the county, and the form offers a fallback in its own words for land with no block and lot assigned, being a metes and bounds or other description. A street address on its own is not how the record is indexed.

Item 1 also asks you to circle whose interest the lien is claimed against, and items 5 and 6 are only completed where they apply, which is what the form's own lede means by only complete those sections that apply.

Residential work is a different route to the same form

2A:44A-5(c) says no lien shall attach and no lien claim shall be filed for work, services, material or equipment furnished pursuant to a residential construction contract unless there is strict compliance with sections 20 and 21.

Section 20 is the notice of unpaid balance and right to file lien, lodged within sixty days of your last day under 2A:44A-21(b)(1) and served under section 7. Section 21 is everything after it: a demand for expedited American Arbitration Association arbitration within ten days of lodging the notice under 2A:44A-21(b)(3), a proceeding completed within thirty days under 2A:44A-21(b)(6), and then this form lodged within ten days of receiving the determination under 2A:44A-21(b)(8).

2A:44A-21(b)(8) also says that failing to lodge the claim, or to furnish the bond, letter of credit or funds the arbitrator required, within that ten day period shall cause any lien claim to be invalid. The bond comes from 2A:44A-21(b)(5), where a setoff or counterclaim that cannot be determined in a liquidated amount is secured at one hundred and ten percent of its approximate fair and reasonable value.

So on residential work this sheet is the last step of five rather than the first step of two, and arriving at it without the notice behind it means there is no lien to file.

Where the words came from

Every word of the form on this page was sliced out of the statute text by line number and never retyped.

The build source is N.J.S.A. 2A:44A-8 published at codes.findlaw.com, current as of 1 January 2024, and the key is the same section at law.onecle.com. Over seven thousand two hundred characters with blank lengths collapsed the two differ in one place, and that one place is findlaw's.

findlaw prints, between the form's caption and the form's own first line, a block of money lines headed Total contract amount, Amendments to contract, Less agreed upon credits and Contract amount paid to date. onecle does not have it. It is the pre-2010 version of the form's money section, stranded at the head of the page: it sits above the line that addresses the county clerk, findlaw prints the current lettered calculation later in the same section, and the lettered version is what P.L.2010 chapter 119 put in. With the stranded block dropped the two publishers agree at zero differences.

Two blanks in the statute are set closed up against the word in front of them, written dated followed immediately by the underscores, and County of followed immediately by them. onecle prints both the same way, so nothing was lost in publishing and the act itself sets them like that. A space was put in front of each so a filled answer does not run into the word before it. The three other closed up blanks on this form were left exactly as the statute sets them, because each of those prints as a rule to write on rather than as an answer.

Both copies are parked in the repository beside each other so the comparison can be checked rather than taken on trust.

Questions people ask

Once the job is running and you are getting paid on it, the paperwork that comes next is the waiver: see the New Jersey statutory lien waiver forms, and conditional vs unconditional lien waiver for which of the two to sign.