Can you send a preliminary notice to cover the work done for a specific invoice?

4 months ago

If a job started over a month ago and we missed our deadline to send the preliminary notice, but we want to protect the work done for a later invoice that is within our preliminary notice deadline, can we send a preliminary notice to protect the work done for that invoice specifically? Even if it is the same project and has the same project number? We are a GC for a project in Wyoming.

Senior Legal Associate Levelset

That’s a good question. First, let’s clarify the deadline for sending a preliminary notice in Wyoming. Under § 29-2-112(a)(ii)(A) of Wyoming’s mechanics lien statute, a contractor must send preliminary notice “prior to receiving any payment from owner, including advances.” Further, the next section, § 29-2-112(a)(ii)(B), states “Failure to send the notice required under this section within the time specified shall bar the right of a contractor, subcontractor or materialman to assert a lien.”

So, in Wyoming, the deadline to send a preliminary notice doesn’t relate to an invoice date, and preliminary notices aren’t sent on an invoice-by-invoice basis. Rather, in order to preserve lien rights for the project, as a whole, a Wyoming prime contractor must send notice before accepting any payment for work. And, if that notice isn’t sent, or if that notice isn’t sent on time, a mechanics lien won’t be available.

Note, though, that there are always options outside of the mechanics lien process that can be helpful for recovery. Plus, sometimes the mere warning or threat of a potential lien filing might be enough to compel payment, even if a lien claim won’t be filed. For more on those ideas: Can’t File a Lien? Here Are Some Other Options For Recovery.

For more background on Wyoming’s lien and notice rules, these resources should be valuable:
(1) About Wyoming Preliminary Notice
(2) Wyoming Mechanics Lien Guide and FAQs

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