We are a subcontractor working on a project that has been 90% paid. We started on 2/23/2020, but forgot to submit a prelim notice. What are our options now? Can we submit it even though it's expired? We still have not been paid the balance on the project.
Under most circumstances a subcontractor does not have lien rights for any work performed more than 20 days before sending a preliminary notice. So you most likely do not have lien rights for this project. But if you can prove that the owner had actual knowledge that you were performing work you may have an argument that the owner is estopped from asserting lack of preliminary notice as a defense. However, you would still need to record your lien within 90 days of project completion or within 30 days of any notice of completion if such a notice was recorded. If this time period has elapsed then you cannot record a lien.
If you don't have lien rights your best is to rely on you contractual and statutory rights directly against your customer. Your customer may be liable for both breach of contract and prompt payment penalties for its failiure to pay you. Generally I would recommend starting with a demand letter from an attorney and then proceeding with legal action and/or alternative dispute resolution if necessary/warranted.
To schedule a free telephone consultation email me at ryan@huntortmann.com
Without a 20-day preliminary notice having been served, as a sub, you have no lien rights. You still have a breach of contract claim against the person that hired you - 4 years from the date of breach on a written contract.