Anyone working on a construction project within the state of Massachusetts should have a clear understanding of how Massachusetts preliminary notices operate. Every project participant is required to send at least one type of notice. The specific rules and deadlines can tend to get confusing. This article will provide all you need to know to successfully secure their lien rights in Massachusetts.
Massachusetts preliminary notices
Massachusetts preliminary noticesThere are two types of Massachusetts preliminary notices that are either required for or can affect a claimant’s mechanics lien rights. These are known as a (1) Notice of Identification, and a (2) Notice of Contract/Subcontract. The terminology and requirements in Massachusetts can be complicated quickly.
Notice of Identification
This is an optional notice that can be sent by any lower-tier project participant that was hired by a subcontractor or lower. A Notice of Identification isn’t required to secure mechanics lien rights, but if sent, the sender preserves their right to lien the property with greater protections.
In Massachusetts, mechanics lien rights are limited to the unpaid balance owed to the higher-tiered contractor or sub. This notice isn’t required to secure your lien rights, but if sent properly the full contract amount can be secured by the mechanics lien.
Notice of Contract
This type of notice is actually required in order to secure the right to file a mechanics lien. Any party that has a written contract with the owner, GC or a sub just file this notice with the Registry of Deeds. This is meant to establish a record of the contract and must be filed in order to move onto the next step in the Massachusetts lien process which is the filing of a Statement of Account.
Download free Massachusetts Preliminary Notice forms
Notice of Identification Notice of Contract/Subcontract
Information that needs to be included in Massachusetts preliminary notices
Notice of Identification
This type of Massachusetts preliminary notice doesn’t require too much information. The following should be provided on a Notice of Identification:
- Prime contractor’s information
- Hiring party’s information
- The amount, or estimated amount, of the contract
- Property address
It’s important to note that the amount stated in the notice will not limit the lien amount. Additionally, any minor mistakes will not invalidate the notice, as long as the GC receives actual notice.
Notice of Contract
In order for a Notice of Contract to be accepted and recorded in the Registry of Deeds, it must contain the following information.
- Prime contractor info
- Property owner info
- If this information isn’t readily available; here’s a helpful article to get you started: How to Find the Property Owner on a Construction Project
- Hiring party
- Date of contract
- Amount of contract
- The statute provides the formula to calculate exactly what amount you should be claiming on these notices.
- Contract price
- Agreed upon change orders
- Less prior payments
- Other credits due
- Disputed claims & extras
- Total balance due
- The statute provides the formula to calculate exactly what amount you should be claiming on these notices.
- Property description
- This includes the full legal property description, along with the deed book and page of where the property is registered.
- Signed and notarized
Sending Massachusetts preliminary notices
Notice of Identification
Notice of IdentificationA Notice of Identification needs to be sent to the general contractor on the project. In order to effectively lock in the full contract price, this notice must be sent within 30 days of the first furnishing labor or materials to the project. Missing this deadline doesn’t extinguish your lien rights, but it will limit the amount recoverable.
Notice of Contract
The deadline to file a Notice of Contract- that’s right– file is a bit of a moving target. These types of notices should be filed in the Registry of Deeds of the county or district where the property is located. Those who didn’t contract directly with the property owner must also send the notice to the property owner as well. The statute states that this notice must be filed after the execution of the contract but no later than the earlier of one of the following events:
- 60 days after filing a Notice of Substantial Completion;
- 90 days after filing a Notice of Termination; or
- 90 days after the last furnishing of labor or materials to the project.
In practice, this notice should be sent as early as possible. This is due to the fact that the lien amount in Massachusetts is limited to the amount due to the claimant’s hiring party at the time the notice is received. That is, of course, if the claimant didn’t file a Notice of Identification. If you feel this is complicated, you are not alone. Here’s a recent example of a question that was posted on our Ask an Expert Center: If I am a subcontractor in MA, do I have to file a Notice of Subcontract? What about a Notice of Substantial Completion? Is this the same as a lien, or does this precede a lien?
An important consideration to keep in mind is what will occur in the event that the general contractor willfully defaults on their obligations. Since nothing will be owed to the GC, a subcontractor will not be able to claim a lien against the property, unless the sub filed a Notice of Contract before the GC defaults.
Bottom line
Massachusetts preliminary notice requirements are an important aspect of the mechanics lien process. However, the specifics and the terminology can be difficult to understand for those who aren’t familiar with how they work. Not only do these notices establish the ability to file a mechanics lien, but also to ensure that the full contract price can be secured by the mechanics lien. It’s important to closely follow these rules and deadlines to ensure you get paid what you’ve earned.
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