In Maryland, filing a preliminary notice is the first step for subcontractors and suppliers to protect their right to file a mechanics lien. Although seemingly simple, there are certain nuances and timing issues that contractors need to follow ensure the notice is valid. This article will provide all you need to know about filling out and filing a preliminary notice in Maryland.
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Maryland Preliminary Notice is actually a Notice of Intent
In most states, a preliminary notice is a document sent by a subcontractor when they begin work on a project. It informs the General Contractor and/or project owner that the sub is on the job and gives detail about what they’re providing.
Maryland has a required notice too, but not at the start of a job. Instead, they require that contractors send what they call a Notice to Owner by Subcontractor at the end of a project. It’s also called a Notice of Intent to Lien or a Notice of Intent (NOI). Everyone on a private construction project who didn’t contract directly with the owner must serve this notice in order to protect their ability to file a mechanics lien. This notice needs to be sent after you’ve completed your contract but before you file a mechanics lien. Let’s take a look at the specifics.
What should a Maryland notice look like?
As far as what information the actual notice should contain, Maryland courts are particularly strict. This is especially true when filling out (1) the amount due, (2) the description of labor or materials, and (3) the time when the work or materials were furnished. It’s important to be sure that all the required information is not only provided, but accurate as well. The statute makes this easy, as it basically provides the form for you. It states that the notice must be substantially in the following form:
Notice to Owner of Intention to Claim a Lien
[Subcontractor] did work or furnished material for or about the building generally designated or briefly described as [property description]. The total amount earned under the subcontractor’s undertaking to the date hereof is $… of which $… is due and unpaid as of the date hereof. The work done or materials provided under the subcontract were as follows: (brief description of work or materials; time when the work or materials were furnished; and the name of the hiring party).
I do solemnly declare and affirm under the penalties of perjury that the contents of the foregoing notice are true to the best of the affiant’s knowledge, information, and belief.
After you’ve provided all of the required information as accurately as possible, don’t go signing right away! In Maryland, notices need to be signed and notarized to be valid. Now you’re ready to send the preliminary notice to the property owner.
How to serve a Maryland notice (and when)
The base rule is that subcontractors must serve notice within 120 days of the last day of furnishing labor or materials to the project. Since subcontractors have 180 days to file a mechanics lien in Maryland after the date of last furnishing, the law provides a 60-day window to either resolve the dispute or enforce the mechanics lien claim.
The same 120-day deadline applies to single-family, owner-occupied residential projects, but with a catch. The notice must be received by the owner before they make full payment to the general contractor.
Notice must be sent by registered or certified mail, with return receipt requested or can also be delivered personally. And, if there’s more than one owner, notice only needs to be sent to one owner in order to be effective. Once the owner receives the notice, they do have the option of withholding that amount from the next payment to the prime contractor.
This seems pretty straightforward, but there are some interesting aspects to serving a Maryland preliminary notice.
Mailing the notice on time
Let’s talk mail. According to Maryland lien law, service is considered achieved when the notice is sent by one of the proper methods. But, the notice actually needs to be received in order to be effective. So what does that mean? It means if your notice was mailed within the 120-day timeframe it will be valid, even if the notice is actually until after the 120-day period. Don’t push it! This notice should be sent well in advance. If you wait until the last minute and the notice comes back unclaimed, then you’ve missed your opportunity.
Alternative: Notice by Posting
So what if the owner can’t be found or served? There is another option available: Notice by posting. If, after reasonable efforts to notify the owner fail, the notice can be posted on the property itself. It should be put up either on the front door, or other front-facing part of the building. If you end up going this route, snap a quick picture. That way, if the posted notice is challenged for any reason, you’ve got proof. But remember, this should be used as a last resort. You may be asked to provide proof of other failed methods of delivery if the lien is eventually enforced.
Compared to other states, the Maryland preliminary notice process is relatively simple; and for subcontractors and suppliers on private projects, this is a crucial step to protect against non-payment. If you’ve provided all the correct information and met your notice deadline, you are well on your way to ensuring you get paid what you’ve earned.