Earlier today, I wrote a blog post about the general mechanics lien and preliminary notice requirements in South Dakota.
As discussed in that post, the state does have a preliminary notice requirement, but it is conditional and limited. If a prime contractor timely records a Notice of Commencement, all sub-subcontractors and material suppliers to subcontractors must deliver a preliminary notice within 60 days of last furnishing labor or materials to the project.
Who doesn’t have this preliminary notice requirement even when a Notice of Commencement is recorded? First tier subcontractors, and suppliers to prime contractors.
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These two parties are completely left out, and therefore, they are never required to deliver a preliminary notice on a project to preserve their mechanics lien rights.
The theory here is that the preliminary notice is designed to alert the prime contractor of all parties on the construction project to ensure that these parties get paid. It doesn’t make sense that the parties who contract directly with the prime contractor must notify the prime contractor of their existence! Of course, it would be nice if some other states followed this form and rid their statutory scheme of redundant notices.
