Sending a Preliminary Notice

Thousands of times every day, contractors and suppliers prepare and send a “Notice to Owner” or “Preliminary Notice.” Typically, a supplier or contractor will prepare and send the document in-house, or the company will rely upon a “notice service” or a technology, like Levelset, to create and send the document.

Regardless of how the document is prepared and sent, the sending party may later be called upon to prove that the notice requirement was sent or delivered in accordance with state requirements.

Will You Need to Prove that the Notice Was Sent…or Received?

The biggest thing your company needs to understand about the notice is whether you’ll later be required to prove that the mail piece was sent, or received. This will influence greatly how you would like to send the document, and how much tracking and followup you’ll need to perform on the mail piece.

Generally speaking, laws are very favorable for the parties sending a notice, such that the sending party only carries the burden of demonstrating that the notice was sent to the right people according to requirements. According to a number of court cases analyzing legal notice requirements “the risk of failure of the mail is on the person to whom it is addressed.”

This is explored in more detail in our article “How to Send a Notice to Owner – Certified Mail, or Certified Mail Return Receipt?

If you are required to prove only that the Notice to Owner was sent, it will be important to keep proof that the mail piece was sent according to requirements. If you are required to prove that the Notice to Owner was actually delivered, the needed proof gets more complicated. As discussed in the above “How to Send A Notice to Owner” article, however, be careful not to accidentally create a “receipt” burden by exposing yourself to more information than necessary (i.e. sending a mail piece with “return receipt requested” service when it is not required).

The following sections of the article will explore the proof you’ll need in both instances — when you need to prove the notice was sent v. received. To see what will be required in your project’s state, consult our preliminary notice mailing requirements checklist.

What You’ll Need If You Only Need to Prove the Notice Was Sent

In the majority of states, you’ll only be required to prove that the notice was sent as required, and actual receipt of the notice will be immaterial to the sender’s burden. Among other states, this is the case in Georgia, Colorado, California, Washington, Minnesota, and Maine.

To prove that a mail piece was actually sent it’s important to keep detailed and comprehensive records of the mailing. This means having access to the following:

  1. Scan of the actual mail piece sent
  2. An affidavit of mailing to document when it was mailed, how, and by who
  3. The certified or registered mail tracking number, and log of the status changes in the delivery
  4. A certificate of mailing from the post office
  5. Record of the research performed on the recipients to confirm the addressed information
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What You’ll Need If You Need to Prove the Notice Was Received

Proving that a notice was actually received is a completely different burden than proving it was sent. The need to prove actual receipt of a legal notice is an exception to the general rule concerning legal notices, but there are a minority of states that will require the sending party to meet this burden. Among other states, this is the case in Ohio, Kansas, Illinois, and Maryland.

Those carrying this burden will want to maintain all of the documentation identified within the previous section, but additionally, there must be some evidence of actual receipt by the intended recipient. In many cases this can be satisfied by getting “return receipt requested” service on a mail piece.

The challenging aspect of this burden is not related to the method of delivering a notice, but is instead more relevant to the work required in tracking the mail piece and taking actions to followup on the mail piece if it is returned, unclaimed, or refused. In any of these cases, if the burden is on the sender to prove receipt, it may be necessary to go the extra mile to confirm actual delivery.

If your mail pieces are being returned for any reason, you can refer to this article to plan your response: What to do if USPS returns your preliminary notice mailing?

Take Control of Complex Notification Process with Technology

Regardless of whether your company will have the burden to prove that a notice was sent or received, the administrative cost will be quite high in executing a plan to keep track of the needed proof. Companies can take complete control of this complex process by leveraging technology tools, however.

Levelset is an example of this type of technology. Levelset’s platform understands the different mailing and proof requirements for notices across the country, and can automate the collection and tracking of all mail pieces, leaving your company with less headaches and stronger lien rights.

Learn how Levelset can help you

What You Need to Track When Sending a Preliminary Notice
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What You Need to Track When Sending a Preliminary Notice
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