If a pre-lien is sent to the home owner via certified mail and USPS lost it, is the pre-lien still valid in the state of Wisconsin?

4 months ago

If a pre-lien is sent to the home owner via certified mail and USPS lost it, is the pre-lien still valid in the state of Wisconsin? How should you proceed?

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Wisconsin’s mechanics lien statute appears to require that preliminary notice be delivered in order to be effective. However, there’s some Wisconsin case law that seems to indicate notice is effective when it’s properly mailed.

Are Wisconsin notices effective when mailed or when received?

In Torke/Wirth/Pujara v. Lakeshore Towers, the Wisconsin Court of Appeals held that service of a Notice of Intent to Lien was effective when it was properly placed in the mail, even where actual receipt doesn’t take place. Considering the same service and mail provisions apply to both Notices of Intent to Lien and preliminary notices, it follows that a preliminary notice is effective when mailed and that actual receipt of the notice isn’t absolutely necessary for the preservation of lien rights. Plus, if the legislature wanted to correct that result, they could have clarified the mailing requirements.

So, if a Wisconsin preliminary notice has been properly and timely mailed, then the notice getting lost in the mail shouldn’t result in lost mechanics lien rights. And, if that’s the case, proceeding as normal would make sense.

But, if there’s still time before the preliminary notice deadline, re-sending the notice might make sense to ensure that everyone’s received the notice. Or, contacting the intended recipients, letting them know that you’d previously mailed notice but that the notice was lost in the mail (and that you’ve got the tracking info to prove it), and providing them with a copy of that notice could be a good idea, too. That way, everyone knows you’re in compliance with notice requirements, plus you could benefit from improved communication and transparency on the job.

For more discussion on Wisconsin notices: Wisconsin Preliminary Notice Guide and FAQs.

Disclaimer: The information presented here is not legal advice and should not be construed as such. Rather, this content is provided for informational purposes. Do not act on this information as if it is advice. Further, this post does not create any attorney-client relationship. If you do need legal advice, seek the help of a local attorney.
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