Mechanics liens, as creatures of statute, require strict compliance with the statutory requirements in order to remain valid. While there are always timing requirements and formatting requirements that must be met, there are generally notice requirements, as well. Most states require some sort of preliminary notice or other notice prior to filing a valid mechanics lien.
This type of notice provides information to the interested parties related to the project, and protects against the possibility of hidden liens. Generally, these notices must be delivered to the property owner, and in many cases, to the direct/prime/general contractor, as well.
While this article will seek to address the question posed by the title generally, it was prompted by an interesting question I recently came across. That question:
“I am a subcontractor and the contractor who hired me doesn’t have an address . . . [and moves] every 10 days. Can I still file a lien if I can not get ahold of him to deliver the notice of intent?”
We’ll use this real-life scenario as an example to discuss the issue.
Requirement of Providing Notice to the General Contractor
As mentioned above, there are many states with requirements that a preliminary or other before-lien notice must be delivered to the GC as well as the property owner. In Colorado, a notice of intent to file lien statement must be “served upon the owner or reputed owner of the property . . . and the principal or prime contractor or his or her agent at least ten days before the time of filing the lien statement.” This particular notice “shall be served by personal service or by registered or certified mail, return receipt requested, addressed to the last known address of such persons.”
This specific requirement outlined above provides some guidance on how a claimant may proceed when there is no current address for the GC. The specific requirement is that the notice be mailed and addressed to the “last known address” of the required party. If the current address cannot be discovered, or if there is no current address, the last known address is sufficient.
There is no absolute requirement for actual delivery of the notice in order to meet the requirement. Further, the statute allows for the notice to be delivered to the GC or the GC’s agent. In a case in which the GC has no address, the claimant may additionally attempt to send the notice to other interested parties and make the argument that those parties were the agent of the GC since the GC had made himself impossible to serve.
No Address? You’ve Still Got Mail
The GC’s actions of not maintaining a permanent address is likely insufficient to extinguish the right of another party to file a valid lien claim. I would feel relatively comfortable finding any address for the GC, serving the other interested parties, attempting to have the notice personally served, and potentially posting the notice at the job site to provide constructive notice to the GC. If all that fails to actually provide the notice to the GC, it’s likely that it would be determined that the GC was actively attempting to avoid service for the purpose of defeating otherwise valid liens, and those actions would not likely be allowed.
A similar analysis and approach could likely be taken in other states, as well. Most notice requirements provide means for the notice to be sent that are effective despite no actual receipt – using the address on a license, or a notice of commencement, or similar, and attempting delivery through a particular mail type.
While compliance with the statutory requirements is required – affirmative acts to prohibit parties from compliance will not likely be allowed.
The #1 reason liens get rejected: Bad information.
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