No, you cannot put a lien on government property. Federal, state, and local public property is shielded by sovereign immunity, so a mechanic’s lien will not attach no matter how much you’re owed. The tradeoff is that public construction projects generally require the prime contractor to post a payment bond, and unpaid subcontractors and suppliers collect by filing a claim against that bond instead of recording a lien. On federal projects, the Miller Act requires this bond whenever the contract exceeds $100,000.
Why Public Property Can’t Be Liened
A mechanic’s lien works by attaching to real estate and, if the debt stays unpaid, forcing a sale. That mechanism collapses when the owner is the government. Sovereign immunity means federal, state, and local governments cannot have their property seized or sold to satisfy private debts without their consent, and no court will foreclose on a courthouse, highway, school, or fire station because a supplier wasn’t paid.
The rule applies across every level of government and every type of public property, whether the work is new construction, renovation, or repair. Size of the debt doesn’t matter. Circumstances of nonpayment don’t matter. If the owner is a government entity, the lien will not attach.
The Narrow Leasehold Exception
One situation is worth flagging. When a government entity owns land but leases it to a private party who then hires contractors, a lien against the private party’s leasehold interest may be available. The government’s underlying ownership is still off-limits, but the tenant’s interest in the lease can sometimes be a valid target. Whether this works depends on state law and the specific lease terms. If you’re doing work for a private company operating on government-owned land, check whether your state recognizes liens against leasehold interests before writing off your lien rights entirely.
Payment Bonds Take the Place of the Lien
Because lien rights don’t exist on public projects, the law substitutes a payment bond. The prime contractor buys the bond, a surety company backs it, and it guarantees that subcontractors and material suppliers on the project will be paid. If the prime contractor doesn’t pay, the surety does, and then pursues the prime for reimbursement.
Instead of recording a lien at the county recorder’s office, an unpaid subcontractor or supplier files a claim with the surety. The surety investigates and, if the claim checks out, pays.
On federal projects, the payment bond must equal the full contract price unless the contracting officer determines that amount is impractical and sets a lower figure in writing. Even then, the payment bond cannot be less than the performance bond amount.1Office of the Law Revision Counsel. 40 USC 3131 – Bonds of Contractors of Public Buildings or Works
Federal Projects Under the Miller Act
The Miller Act governs payment bonds on federal construction. It applies to any contract over $100,000 for the construction, alteration, or repair of a federal public building or public work.1Office of the Law Revision Counsel. 40 USC 3131 – Bonds of Contractors of Public Buildings or Works The prime contractor must furnish both a performance bond, which protects the government against incomplete work, and a payment bond, which protects everyone supplying labor and materials downstream.
Below the $100,000 threshold, the government isn’t required to demand a payment bond. That can leave subcontractors and suppliers on smaller federal projects with only a breach-of-contract claim against the party that hired them, and no bond behind it.
Who Is Covered
The Miller Act protects only the first two tiers of the contracting chain:
- First-tier subcontractors, meaning those who contract directly with the prime contractor.
- Second-tier subcontractors, meaning those who contract with a first-tier subcontractor.
- First-tier material suppliers, meaning suppliers who sell directly to the prime contractor.
- Second-tier material suppliers, meaning suppliers who sell to a first-tier subcontractor, not to another supplier.
Third-tier and more remote parties have no bond claim. A material supplier who sold to another supplier rather than to a subcontractor is also out. The Supreme Court drew this line in Clifford F. MacEvoy Co. v. Calvin Tomkins Co. and it has held ever since. Smaller specialty companies sitting several layers deep in the chain often discover the problem only after the money stops.
Notice Deadlines
Notice rules depend on your tier. First-tier parties with a direct contract with the prime contractor do not need to send any preliminary notice before making a claim.2General Services Administration. The Miller Act: How Payment Bonds Protect Subcontractors and Suppliers
Second-tier parties have 90 days. If you contracted with a first-tier subcontractor rather than the prime, you must send written notice to the prime contractor within 90 days of your last day of work or materials supplied. The notice has to identify the amount claimed and the party you worked for or supplied, and it must be delivered by a method that provides written, third-party verification, such as certified mail or personal service.3Office of the Law Revision Counsel. 40 USC 3133 – Rights of Persons Furnishing Labor or Material
Miss the 90-day window and the bond claim is gone. There’s no routine equitable exception. Tracking your last day of work is one of the most important things you can do.
Getting a Copy of the Bond
You can’t make a claim without the bond details. The Miller Act gives you a statutory right to obtain a certified copy of the payment bond and the underlying contract from the contracting agency. You submit an affidavit stating that you supplied labor or materials on the project and haven’t been paid, and the agency must provide the copy. A small fee may apply.3Office of the Law Revision Counsel. 40 USC 3133 – Rights of Persons Furnishing Labor or Material Don’t wait for the prime contractor to hand it over.
State and Local Projects: Little Miller Acts
The Miller Act only reaches federal projects. Work for state, county, and municipal governments is governed by state statutes commonly called Little Miller Acts. Every state has one, and each requires payment bonds on public projects.4Wikipedia. Little Miller Act
The details vary considerably. The dollar threshold that triggers the bond might be $25,000 in one state and $100,000 in another. Some states require a preliminary notice at the start of the project to preserve your rights; others don’t start the clock until your last day of work. Notice deadlines range roughly from 30 to 120 days. The tiers of subcontractors protected can differ from the federal rules too.
Identify which Little Miller Act applies and read its specific requirements before you make any assumptions. Treating the state rules as a copy of the federal ones is a common and expensive mistake.
How to File the Bond Claim
Once any preliminary notice is handled, submit a formal claim to the surety company. This is not a court filing. Send it directly to the surety and, typically, to the prime contractor as well. Use certified mail with return receipt requested.
A thorough claim includes your name and contact information, the name of the party you contracted with, a description of the labor or materials you provided, the dates of your work, the total amount earned, what you’ve been paid so far, and the balance owed. Attach the contract or purchase order, invoices, delivery tickets, and any correspondence about the disputed payment.5AIA Contract Documents. What Is a Payment Bond Claim and How Do You Make One? Better documentation up front means a faster investigation.
The surety will contact the prime contractor to verify the details, and there will usually be back-and-forth. The surety isn’t automatically on your side; its job is to decide whether the claim is valid before paying.
When the Surety Won’t Pay
If the surety denies the claim or doesn’t respond, the Miller Act lets you sue in federal district court. You can bring the action once 90 days have passed since your last day of work without full payment. You must file suit no later than one year after that last day.3Office of the Law Revision Counsel. 40 USC 3133 – Rights of Persons Furnishing Labor or Material
That one-year deadline is absolute. Courts have consistently refused to extend it. First-tier parties can file suit after the 90-day wait without any prior notice. Second-tier parties must have already sent the 90-day notice to the prime contractor before the courtroom door opens.2General Services Administration. The Miller Act: How Payment Bonds Protect Subcontractors and Suppliers
State Little Miller Acts set their own lawsuit deadlines, which may be shorter or longer than one year. Check your state’s statute; don’t assume you have the federal window.
Protect Your Rights Before Problems Start
The right time to protect your payment bond rights is before you start work. A few habits pay off.
Know your tier. Whether you’re first-tier or second-tier controls your notice obligations and your right to claim. If you’re third-tier or lower on a federal project, you have no bond protection, and that should factor into whether you take the job at all.
Document your last day of work precisely. Nearly every critical deadline under the Miller Act and the Little Miller Acts runs from that date, and ambiguity about it can become the dispute that sinks your claim.
Be careful with waivers. Under the Miller Act, a waiver of your right to sue on a payment bond is void unless three conditions are met: it’s in writing, signed by the person giving up the right, and executed after that person has already furnished labor or materials on the project.3Office of the Law Revision Counsel. 40 USC 3133 – Rights of Persons Furnishing Labor or Material A waiver signed before work begins carries no weight. If a prime contractor or subcontractor asks you to sign away your bond rights as a condition of getting the job, that waiver is unenforceable under the federal statute. State rules on waivers vary, so the same protection may not exist on non-federal work.