In many states, the notice required prior to filing a valid mechanics lien can be classified as either a preliminary notice or a notice of intent to lien. And, while less common, it’s not unheard of for a state to require both a preliminary notice prior to (or within a short time of) starting work, as well as a notice of intent prior to filing a lien itself. What is very uncommon is for a state to require multiple post-work notices prior to a lien’s filing. Potential lien claimants in Arkansas find themselves in this unique situation, however, as the notice requirements in that state may require both a post-work notice and a traditional notice of intent to lien.
Arkansas Notice Requirements
On residential projects, the Arkansas notice scheme appears more traditional. A preliminary notice is required prior to commencing work, and a notice of intent to lien is required 10 days prior to filing a lien claim. On commercial projects, however, the traditional preliminary notice is replaced by a hybrid-type notice that functions as a middle ground between a traditional preliminary notice and a traditional notice of intent to lien. Arkansas statute appears to require that a lien claimant give both the post-work hybrid notice, and the traditional notice of intent to lien.
This post work notice, a “Notice to Owner and Contractor”, is to be given after work has been performed and payment is due and owed to the noticing party, but within 75 days of that party’s last furnishing of labor and/or materials to the project. The specific requirements of this notice are set forth by Arkansas Code 18-44-115(b)(4) which states that:
No subcontractor, service provider, material supplier, or laborer shall be entitled to a lien upon commercial real estate unless the subcontractor, service provider, material supplier, or laborer notifies the owner of the commercial real estate being constructed or improved, the owner’s authorized agent, or the owner’s registered agent in writing that the subcontractor, service provider, material supplier, or laborer is currently entitled to payment but has not been paid.
This notice is required to be sent “before seventy-five (75) days have elapsed from the time that the labor was supplied or the materials furnished”.
Compare this post-work notice with the traditional notice of intent required by 18-44-114. This traditional notice of intent is required to be given to the property owner 10 days prior to the filing of the lien itself (which is due within 120 days of the claimant’s last furnishing labor and/or materials to the project). This notice, with a deadline tied to the lien itself, is much more like the traditional notices of intent seen throughout the lien laws of various states.
Keep the Post-Work Notice in Mind
For parties performing work in Arkansas, it pays to keep this post-work notice in mind. Since the traditional notice of intent deadline is tied to the filing of the lien itself (which can be filed at any time after work before the passage of 120 days) a potential lien claimant may miss out on providing a required notice. If the claimant decides to file a lien prior to 75 days after last furnishing labor and/or materials, and send the traditional notice of intent 10 days prior to that, a claimant using a cheat-sheet or other such document to keep track of deadlines may never see the “post-work” notice deadline that would not yet have passed.
It behooves the Arkansas construction participant to keep in mind that for commercial projects (or residential projects with more than 4 units), two distinct notices are required after work has been completed in order to later file a valid mechanics lien.