I did not send a preliminary notice.

3 weeks ago

It was a commercial site and after things were getting “messy”, the property owner’s construction manager took over as General Contractor in which I worked along side. Is my preliminary notice required? Is this clause stating I am not required if it is a commercial site and if I worked under the property owner’s company?

779.02. Notice required to preserve lien rights; exceptions; saving clause; obligations of contractors
(1) Exceptions to notice requirement. The notice required to be given by lien claimants under sub. (2) shall not be required to be given in the following cases only:
(a) By any laborer or mechanic employed by any prime contractor or subcontractor.
(b) By any lien claimant who has contracted directly with the owner for the labor, services, materials, plans, or specifications performed, furnished, or procured, unless the claimant is a prime contractor subject to the notice requirement of sub. (2)(a).
(c) By any lien claimant performing, furnishing, or procuring labor , services, materials, plans, or specifications for an improvement in any case where more than 4 family living units are to be provided or added by such work of improvement, if the improvement is wholly residential in character, or in any case where the improvement is partly or wholly nonresidential in character.
(d) By any prime contractor who is personally an owner of the land to be improved, by any corporate prime contractor of which an owner of the land is an officer or controlling shareholder, by any prime contractor who is an officer or controlling shareholder of a corporation which is an owner of the land or by any corporate prime contractor managed or controlled by substantially the same persons who manage or control a corporation which is an owner of the land.
(e) By any lien claimant, other than a prime contractor, who performs, furnishes, or procures labor , services, materials, plans, or specifications for an improvement on a project on which the prime contractor is not required to give notice under this section.

Senior Legal Associate Levelset

As you can tell by that section you’d sent over, Wisconsin’s notice requirements are an absolute mess. So, it’s generally a good idea to send notice anyway – regardless of whether it’s required. That way, all bases are covered in the event that notice is required.

With that in mind, let’s look at some of the exceptions which might be particularly relevant here.

Exceptions to Wisconsin’s preliminary notice requirements

Under § 779.02(1)(a), individual laborers or mechanics who are employees of the prime contractor or a subcontractor do not have to send a notice. This is in line with a number of other states – often, wage laborers/employees will have lien rights without the burden of notice requirements.

Further, under § 779.02(1)(c), it appears that notice will not be required for projects that are “wholly nonresidential in character.” So, for commercial jobs, notice is likely not required in order to preserve the right to lien (though, again – it’s a good idea to send notice even when it’s not required).

Recovery options before resorting to a mechanics lien claim

Before jumping straight into a mechanics lien claim, there are some recovery tools that might be worth exploring.

Invoice reminders

A simple invoice reminder will often be enough to force payment without actually needing to pursue more serious recovery tools. Sometimes, all that’s needed is a gentle push in the right direction. More on that, here: How Invoice Reminders Help Contractors Get Paid Faster.

Demand letters

Escalating things a bit with a payment demand letter could do the trick, too. Demand letters will generally demand payment and threaten specific legal action if payment isn’t made. They show a customer you’re serious about payment and willing to do what it takes to get paid.

Notice of Intent to Lien

Further yet, threatening to file a mechanics lien – with a document like a Notice of Intent to Lien – can be particularly effective. A Notice of Intent is a warning shot and lets recipients know that if payment isn’t made and made soon, then a mechanics lien will be filed. For maximum effect, these notices are often sent to the party who’s failed to make payment, the property owner, and any other higher-tiered parties who might feel the pressure of a lien claim. More on this tool here: What Is a Notice of Intent to Lien and Should You Send One?

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