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Can we file a lien without a written contract or preliminary notice in Wisconsin?

My husband is a self employed contractor. He provided an estimate to the home owner not a contract because it was a friend helping a friend! ???? He completed the job on July 30 sent an invoice on August 3rd. We did not send or have a preliminary lien letter. I did send an intent to file a lien on September 10th they signed for it on September 13. When is the first day that I can file the lien, and can I if we didn’t have a contract with the owner nor a preliminary letter was sent?

1 reply

Sep 27, 2018

That's a good question, and I'm sorry to hear about your situation. Nonpayment is frustrating enough when it's only business relationships being affected. First, it's worth noting that the Wisconsin mechanics lien statute does not appear to require that a contract be in writing in order for a lien to arise. In fact, § 779.02(2) of the statute contemplates a potential lien filing without a written contract. That section also creates certain notice requirements of a prime contractor. However that notice is only required if the prime contractor has contracted or will contract with any subcontractors, suppliers, or other parties to provide labor or materials, notice must be sent. When there is a written contract, this notice must be included in that contract. If there is no written contract, the notice must be sent separately within 10 days of agreeing to perform work. But again - this is only required when the prime contractor has contracted or will contract with others for labor, materials, or other work on the project. Further, if the prime contractor has actually paid all of their subs, suppliers, etc. or if the contractor has obtained lien waivers from all of those parties, the prime contractor will still have the right to file a mechanics lien (as long as no subs, suppliers, etc. have provided notice as a lien claimant) even when notice is not sent. Plus there are a host of other exceptions to the notice requirement under § 779.02(1) of Wisconsin's lien statute. Thus, if a prime contractor hasn't contracted with any subs, suppliers, etc. - no notice is required of that prime contractor. But even if notice was required and unsent, a contractor may still potentially file their lien. Regarding the time frame for filing a lien - in Wisconsin, a claimant must wait at least 30 days after sending a Notice of Intention to File a Claim of Lien before they can file their mechanics lien. The deadline to file that lien is 6 months from the last day on which labor and/or materials were furnished to the project - so it's worth keeping an eye on that date as well. If you have further questions, feel free to come back and post them here! In the meantime, zlien's Wisconsin Lien and Notice FAQ should be helpful. Good luck getting paid! I hope it won't require a lien claim.

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