hi we filed a 20% excess instead of a 20 day prelim in error in December now we are having problems getting paid and are concerned what are our rights?
In California, lien claimants who are subcontractors have only 30 days to record a lien after the owner or prime contractor records a notice of completion; if no notice of completion is served, the subcontract has 90 days to record a lien.
An overstated preliminary notice likely will not affect the validity of your lien. Typically owners or prime contracts will challange an overstated prelinary notice when they receive it.
So if the project price increases by change orders up to or more than 20 percent of the original preliminary notice amount, in California you should send an amended preliminary notice reflecting the increased amount. I actually recommend an amended prelim anytime the price increase by 10% or more from change orders. I am not familair with a 20 percent excess notice, and it's possible it's a LevelSet document that is used in states besides California.
However, if it includes all the information normally found on a prelim (egg. description of project, amount of value you would cotribute, and your scope of work) and was sent to all the right parties (prime contractor, owner, and lender) then your lien rights should be preserved.