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I found out after generating a preliminary document that there was a lender I was unaware of when I first generated it. Do I need to recreate a new prelim and add the lender?

CaliforniaPreliminary Notice

Is there a way to amend the pre-existing prelim created? Do I need to create a new one with the lender info on it?

1 reply

Mar 26, 2019
Good question. First, if the deadline to send notice has not yet passed (and no rights would be affected by sending an updated notice), then sending an updated preliminary notice that contains lender information might have little consequence - and sending timely notice that's as correct as possible is generally a good idea. Recall that in California, notice must be sent within 20 days of first furnishing labor or materials. If lender information is obtained more than 20 days after the sender's first furnishing date, then whether or not to send updated or revised notice may take a little more analysis - but keep in mind that when notice is sent late in California, it will still preserve all work done after notice is made, plus the work performed in the 20 days prior to the notice. Anyway, § 8102(a) of the California Civil Code requires that the name and the address of the construction lender be included in a preliminary notice, but only "to the extent known to the person giving the notice". So, where a party sending notice has not included that lender's information on the face of the notice, as long as that was not known at the time notice was sent, presumably, the failure to include that information in the notice would not be fatal to a subsequent lien claim. Keep in mind, though, that under § 8200(a)(3) of the California Civil Code, the construction lender is a required recipient of a preliminary notice if a lender is present on the job. So, in the event that a lender is discovered on the job after notice was originally given, notice should be given to that lender in order to preserve the right to later file a mechanics lien. However, sending an updated preliminary notice to parties who have already received them could serve to confuse the timeframes for which notice was sent. One option to avoid such confusion might be to send a copy of the previously sent notice to a newly discovered lender, indicating the time for which notice was originally sent on the project. Alternatively, some businesses prefer to send updated notices to all parties as an "amended" or "revised" notice, but while also identifying the previously sent notice so as to not confuse the notice timeframes. Regardless of how a notice-sender proceeds, though, it's a good idea to take measures to indicate that notice was previously sent in compliance with the California Civil Code. For more on California preliminary notices and lien requirements, these resources should be valuable: (1) California Lien & Notice Overview; and (2) California 20-day Preliminary Notices.
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