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Can we still file a lien if missed original deadline?

CaliforniaMechanics LienPreliminary Notice
Anonymous Subcontractor

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.

3 replies

Partner at Flores Ryan, LLP
| 280 reviews
Dec 2, 2020

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

 

Do not act on the information contained herein without seeking the advice of licensed counsel. The information presented here is general in nature and is not
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Attorney at Carlton & Alberola
| 93 reviews
Dec 3, 2020

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.

Carlton & Alberola and/or Andrew Carlton have not been retained by the recipient of the above comment and, moreover, the above comment does not
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It wouldn’t do you any good to send out a preliminary notice this many months after you completed your work since the Preliminary Notice would only cover work done 20 days before the notice and all work done thereafter. Since your work was completed more than 20 days ago, none of your work would be covered. This means that you don’t have any lien rights. However, you can still sue the general contractor for breach of contract if they didn’t pay you. I’m happy to answer any questions you have regarding this.
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