In MN if a pre-lien is not given and we are within 90 days of completion on a residential project are we as a subcontractor able to lien a project where the general is going out of business?

2 weeks ago

We have a spec home a builder built and 1 other large project that we just completed and the builder is not paying us and going out of business. We did not file a pre-lien but we are within 90 days from completion.
What are our options?

Senior Legal Associate Levelset

Good question. First, note that there are numerous exceptions to Minnesota’s pre-lien notice requirements. So, it’s possible that a pre-lien notice might not be required on the project, at all. Levelset discusses those exceptions in detail here: Minnesota Pre-Lien Notice Requirements and Exceptions. But, if a preliminary notice was required, but not sent – failure to send preliminary notice will be fatal to a potential Minnesota mechanics lien claim.

Note, though, that there are always other options that might be available even if lien rights might not be on the table. Levelset discusses a number of those options in this article: Can’t File a Lien? Here Are Some Other Options For Recovery For instance, threatening legal action or actually pursuing action (like under breach of contract, unjust enrichment, or some other theory) could be effective. Further, for claims under $15,000, small claims court might be a viable option for recovery, too.

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