A mechanics lien is a powerful tool to secure your rights in case of non-payment in the construction industry. One vital step to this process is sending a preliminary notice. Not only does this protect your right to payment, but it also provides valuable visibility on any given construction project. Some states require contractors and subcontractors to send these notices to the GC and/or property owner. But in some cases, preliminary notices must actually be filed.
Here’s a breakdown when a notice needs to be filed, and when filing the notice can offer additional benefits.
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An overview of preliminary notice
Whether you’ve been in the construction industry for 20 days or 20 years, you should be familiar with the preliminary notice (or “pre-lien notice”). This is a written notice typically provided to the general contractor or property owner. Preliminary notice informs them of your presence on a construction project, and lets them know the work you’ll be doing.
Some states actually require parties to send preliminary notice in order to secure their right to file a mechanics lien. But even when it’s not required, it’s still a good idea to send a preliminary notice anyway.
In the states that require a preliminary notice, there are usually specific delivery requirements. Most often, construction parties will need to send it by registered or certified mail, with return receipt.
Yet, one question that contractors frequently ask is, “Do I need to file my preliminary notice?”
Filing vs. sending construction notice
Typically, filing a document in construction refers to the specific process of delivering it to the county clerk or recorder’s office. Once filed, it becomes part of the public record. This is also referred to as recording a document. Common documents that require filing include property deeds and mechanics liens, among others.
So what about preliminary notice – do you need to file it?
Well, as with everything in the legal world: It depends. Some states require the notice to be filed in some cases, and others provide additional benefits when you file a preliminary notice. Let’s take a look at these two categories.
States where preliminary notice must be filed
In these states, for certain preliminary notices to be valid, they must be either:
- Filed with a recorder’s office,
- Sent to the owner AND filed, or
- Sent/filed through an online registry.
In some states, the rules apply to any project. In others, they only on specific types of projects.
In Indiana, certain types of projects require filing a preliminary notice.
Anyone without a direct contract with the property owner on owner-occupied, residential projects need to send a specific preliminary notice, called a Pre-Lien Notice to Owner of Mechanics Lien Rights form.
In addition, subs and suppliers must also file the pre-lien notice if the project involves new residential construction. This requirement specifically applies to new construction on an owner-occupied residential property, a property in a subdivision, or a spec home.
On these projects, anyone without a direct contract with the owner must send notice to the owner by certified mail, return receipt requested. Additionally, they must file it in the county recorder’s office within 60 days of first furnishing labor or materials to the project.
Subs and material suppliers on owner-occupied, residential projects must file preliminary notices. For subcontractors, the deadline to file is upon commencement of the work. For material suppliers and sub-subcontractors, the deadline is 30 days after first furnishing. These notices are required to be sent to the owner and/or the general contractor depending on the circumstances. But, they must also be sent/filed through the Iowa Mechanics Lien Registry.
On new residential construction in Kansas, all subcontractors, laborers, and suppliers must file a Notice of Intent to Perform. Prior to filing a lien, this is only required to be sent. However, it should be filed before the closing of escrow or the transfer of the deed to the new owner. If not, the lien won’t be effective against the new owner.
The Notice of Intent to Perform needs to be filed in the clerk’s office in the county where the property is located and mailed to the owner by certified mail, return receipt requested.
Louisiana requires a number of different types of notices. However, the only type of preliminary notice that must be filed in Louisiana is referred to as a Notice of Contract.
General contractors working on projects over $100,000 must file a Notice of Contract in Louisiana. They must file it in the office of the recorder of mortgages for the parish where the property is located. They need to record it prior to commencement of the work. Failing to do so will result in the loss of mechanics lien rights for the GC.
All parties who have a direct contract with the owner, GC, or a subcontractor must file a Notice of Contract or Notice of Subcontract. Parties must file it in the registry of deeds where the property is located. This should be filed after the contract is executed, but the earlier of either:
(a) 60 days after a Notice of Substantial Completion is filed,
(b) 90 days after a Notice of Termination, or
(c) 90 days after last day of furnishing labor or materials to the project.
For those without a contract with the property owner, a copy of the notice should be sent to the owner as well.
Under Montana’s mechanics lien laws, most parties need to provide preliminary notice, called a Notice of Right to Claim a Lien. The deadline to send notice to the property owner is 45 days after first furnishing labor or materials to the project (or 20 days, if it is a non-owner-occupied residential project where a lender is involved).
In any case, parties must file the notice with the clerk and recorder of the county within 5 days of when the owner received notice.
Filing preliminary notice in Utah requires the use of an online platform. For pre-construction liens and regular construction liens, preliminary notices must be filed through the Utah State Construction Registry. The Notice of Retention for pre-construction liens must be filed 20 days after the commencement of pre-construction services.
As for preliminary notices for construction liens, parties must file them within 20 days of first furnishing labor or materials to the project. This can be filed late, but will only cover labor and materials starting from 5 days after delivery of the notice. Parties can’t file this notice any later than 10 days after the filing of a Notice of Completion.
States that provide additional benefits for filing
These states don’t require parties to file preliminary notice in any office or online registry. However, if you choose to file it, the state lien law will provide additional protection and benefits to your mechanics lien rights.
In California, any project participant who doesn’t have a direct contract with the property owner must send a 20-day preliminary notice. (GC’s need to send one if there is a construction lender on the project.)
Filing isn’t a requirement. However, when a party files their notice with the county clerk, then the clerk’s office will inform you if a Notice of Completion or a Notice of Cessation is filed on the project. This is important, as the filing of either document can affect your deadline to file a lien.
The state of Georgia has two different types of preliminary notices. One is required (Notice to Contractor), and one is voluntary (Preliminary Notice of Lien Rights).
Notice to Contractor
The Notice to Contractor is required only if a Notice of Commencement (NOC) was filed. Parties must send it to the owner and prime contractor within either 30 days of first furnishing, or 30 days from when the NOC is filed.
Preliminary Notice of Lien Rights
A Preliminary Notice of Lien Rights is a beast of a different nature. This one is completely voluntary, though there is a deadline to file. By filing this notice, it prevents your lien rights from being dissolved by the prime contractor. If a prime has signed a contractor affidavit stating that you’ve been paid – even though you haven’t – you may lose your lien rights. Filing this notice prevents that from happening.
This notice must be filed with the clerk of court office within 30 days of furnishing any labor or materials to the project, but the earlier the better. After filing, you must also send a copy to the owner within 7 days.
Kentucky is unique when it comes to preliminary notice. On residential projects, parties must send a Notice to Owner – but it isn’t due until after the completion of the project.
However, there is another optional type of notice, referred to as a Notice of Contract. If a party files this notice with the county clerk’s office, it will grant the mechanics lien priority over any subsequent mortgages or other encumbrances on the project. There is no specific deadline, but the priority is set at filing (so the earlier, the better!).
Filing preliminary notice in Maine gives the contractor a particularly useful advantage. If a party files preliminary notice with the Registry of Deeds, the law protects their mechanics lien claim against a subsequent bona fide purchaser of the property. This notice should be filed as soon as possible after the commencement of the work and re-filed every 120 days in order to be effective. If not, the new purchaser will take the title to the property free of your lien.