Not only is sending preliminary notice an important aspect of construction payment, how you send the notice also matters. Not surprisingly (and like a lot of other aspects of lien and notice requirements), the method for sending construction notices can vary by state, project type, and even by the role of the contractor. Honestly, it’s all pretty hard to keep track of. Wouldn’t it be a lot simpler it could all just be done in person?
While hand-delivering notices while you’re right there on the jobsite might seem like a good idea (and a practical fix for a complicated issue), unfortunately, it’s not that easy. That’s because hand-delivery of notices is not necessarily allowed in every state. Please read on for a brief overview.
Can I Just Deliver Notices by Hand?
There are plenty of reasons to send some type of notice on a construction project – the most important is to be proactive about preventing payment issues before they happen by increasing transparency and establishing clear lines of communication. Notices are needed for all sorts of reasons – but this post focuses on preliminary notices.
Can they be hand delivered? Can a claimant avoid deciding whether to send registered mail, or certified mail, or certified mail return receipt requested – or worse, overnighted?
Why Notices Are Important:
- Why It’s a Bad Idea to Send Preliminary Notices on “Problem Jobs” Only
- Construction Preliminary Notice Delivery Methods
Hand Delivering Notices
Believe it or not, most states actually allow for notices to be personally delivered (see map below). Of course, this often comes with some stipulations.
Namely, most states require proof that a notice was personally delivered. Typically, having the receiving party sign a document that states they’ve received the notice is a good way to go about it. Plus, many (if not most) states specifically require “written receipt” when a preliminary notice is delivered.
But we’ve heard stories about contractors going about it another way – including a contractor taking a photo on his cell phone of the delivery of the notice (construction photo documentation). Admittedly – that’s pretty clever. But written receipt should be obtained if personal delivery is made.
Hand Delivering Preliminary Notices
DISCLAIMER: This map merely shows where hand delivery of a preliminary notice MIGHT be possible under state statute (shown in GREEN) and states where hand delivery is LIKELY NOT possible (shown in BLUE). There are too many variables to address definitively in one map – so it’s important to follow up and research your state’s preliminary notice requirements. Whether personal delivery will be acceptable could depend on any number of factors – including your role on the project and the project type. Further, sometimes, even where some other form of delivery is set out by statute, as long as the party who was supposed to receive notice actually received the notice, hand delivery might be acceptable.
Things to Keep in Mind
Before deciding whether delivering a notice by hand is the right move, there are some things to keep in mind.
First, and most importantly, it’s important to check your state’s preliminary requirements. Personal delivery might be allowable, but it’s never a good idea to assume that it will be. Further research is necessary. Plus, it’s important to know if you need to get written receipt of the delivery – but it’s always a good idea to obtain a written receipt.
After determining that preliminary notice can be personally delivered, it’s worth deciding whether it should be delivered that way. Like the wise man used to say, “just because you can do something doesn’t mean you should.” 😉
Often, when a notice is sent by a mailing method designated by the state’s lien laws, it’s considered delivered at the time of mailing. If that’s the case, all a party has to do is correctly get the notice in the mail and it’s considered received. Considering there’s actually a chance that the party receiving your notice might refuse to accept it or might refuse to sign a receipt of the notice — mailing the notice could be a powerful tool.
Arguments Against Personal Delivery
Providing notice is great and important. Proving you’ve provided notice is even more important.
Let’s take Texas for example. In Texas, the monthly preliminary notices are actually adversarial, so a party that’s supposed to be receiving the notice probably doesn’t want to receive it. Further, under Texas state law § 53-003(b):
“Any notice or other written communication may be delivered in person to the party entitled to the notice or to that party’s agent, regardless of the manner prescribed by law.”
But, when a Texas Monthly Notice is sent via registered or certified mail, it’s considered “delivered” when properly sent. So while an attempt to hand delivery could result in a dispute or the other party refusing to accept the notice, a party who simply (properly) mails the notice can rest assured that notice has been made.