I didn’t file a preliminary notice on time – but the owner didn’t say anything about it. Can I file a lien later, if I need to? Isn’t it the owners obligation to raise the issue?

Answered 2 years ago

535 Answered Questions

Nate Budde

Chief Legal Officer Levelset

There a couple of issues here:

1) whether you are practically able to get a lien recorded and use it to get paid; and

2) whether any lien you file would be legally/technically valid.

If you didn't send a preliminary notice, then there are 2 things you'll want to think about. First, whether you absolutely needed to. There are exceptions to every rule and you might just fall into an exception. Second, whether you actually missed the deadline. Many states allow preliminary notices to be sent "late" and still have some effectiveness. In California, specifically, technically allows a preliminary notice to be sent at any time, and just lists its effectiveness to labor/materials furnished in the preceding 20 days.

If you actually missed the deadline completely, you are mostly right that it is the owner's obligation to raise the issue regarding the practical ability to file a lien at all. If you go to file the lien, there USUALLY won't be a gatekeeper at the recorders office stopping you. There are some exceptions, but in California the lien would likely be recorded.

Since, typically, you can file the lien, it's up the owner to bring that up as a defense to have the lien removed. Many times, they don't do that, or the lien happens to get the debt paid before it ever comes to that. However, if the preliminary notice was a requirement - your lien will likely be invalid if you failed to give the prelim notice. This means not only that the lien would likely be tossed out by the court, it could potentially open you up to liability for the property owner's damages if you do not remove the lien if requested.

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