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Can you file a lien if the California Preliminary Notice was not received by the owner.

CaliforniaMechanics LienPreliminary NoticeRight to Lien

The prelim was sent out, but the mailing was returned for both the owner and general contractor due to insufficient addresses.

1 reply

Jun 13, 2019
That's a good question, and I'm sorry to hear that you're having to contemplate filing a mechanics lien for this job.

First, it's worth noting that anytime a preliminary notice is sent but not actually received, lien rights might negatively be affected. So, if notices are returned as unsent, typically, it's important to make sure that notice actually goes where it's required.

Looking to California specifically, under § 8200 of the California Civil Code, notice must be sent to the owner, to the direct contractor, and to the construction lender, if present. The notice must also contain the name and address of the owner, direct contractor, and construction lender, to the extent known to the person giving notice. But, while there may be some flexibility as to the names and addresses contained on the face of the notice - there does not appear to be much leeway for situations where notice was mailed but not actually received. In a situation where notices were properly mailed and sent to the correct address, but still returned, there may be the opportunity for some leeway. But, as a general rule, if notice is required and doesn't actually make it to where it needs to go, that notice will likely not be effective to preserve lien rights.

Now, it's also worth noting that even when there's an issue, or a perceived issue, with service of a preliminary notice - sending a warning or threat of lien could be effective to compel payment. This is true regardless of whether a lien claim can or would actually be filed. By sending a document like a Notice of Intent to Lien, a claimant can show that they mean business and that nonpayment won't be tolerated. And, because a mechanics lien is such a powerful tool, the mere threat of a lien claim will often be enough to compel a contractor to make payment. Plus, when sent to both the owner and the contractor, an owner's distaste for a lien claim can help put additional pressure on the contractor to resolve the payment dispute.

Further, even in the event that a mechanics lien claim might not be available, there are always other options available for recovery.

For more information on California's lien and notice rules, these resources will be valuable:
(1) California Lien and Notice Overview, FAQs, and Statutes
(2) Ultimate Guide to California's 20-Day Preliminary Notice
(3) About California Preliminary 20-Day Notices
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