Can I still place a lien at the end of a project if prelimary lien notices were not issued

4 months ago

Completed a project that was substantially completed earlier this year where we requested the final invoice to be paid. They were past their 30 days of payment when they advised us the fans installed did not work to their satisfaction. We agreed to fix these and provided additional fans to increase the air flow they wanted. The re-work has been completed as on June 28. We allowed them to work with the fans prior to requesting final payment. They now advise us the fans provide to much air which entail has to much wind noise and do not want to pay for this portion of the project (which is the outstanding balance). They have stated that the new work does provide the quality of airflow however are not happy with the wind noise (which is only at maximum level and it’s 17 fans set on 6 variable speed controllers), this is their reason of not wanting to pay. We the work provided was on the original contact, the fans were requested to provide air flow during the hot Arizona days under a covered arena. We would like to know if we are able to lien this project.

Chief Legal Officer Levelset

Arizona law requires that a preliminary “20-day” notice be sent by every person who furnishes labor, professional services, or materials to a project as a mandatory prerequisite to filing a valid mechanics lien. If the preliminary notice is never sent, it is fatal to mechanics lien rights.

However, just because the 20-day deadline is missed, all hope is not lost. An Arizona notice may be given late, and it will be effective to protect any work done beginning 20 days prior to the day the late notice is given. Accordingly, any work done on the project in the last 20 days may be protected by sending a (late) preliminary notice, and a valid lien may be filed to secure that amount.

In the event that the preliminary notice is not sent, or more than 20 days have passed since last work, no mechanics lien is available, but that doesn’t mean the ability to recover the amounts due is cut off. There may still be paths to recover through a breach of contract lawsuit, or a lawsuit pursuant to other causes of action.

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