Home>Levelset Community>Legal Help>My company was hired directly for electrical work by owner-builder? Was I required to serve a 20-day notice?

My company was hired directly for electrical work by owner-builder? Was I required to serve a 20-day notice?

Hello - thank you for this website 1. I served the lien after filing it. The owner's attorney is saying it is invalid because I had to serve before filing. Is that true and if so, what can I do? 2. I never served the 20-day preliminary notice. I was hired by the owner-builder. He is claiming that since he was technically the GC, as a sub I was required to file that notice. Please advice. Thank you!

2 replies

Dec 13, 2019

In California, all parties on a construction project, other than wage laborers, are required to provide a preliminary notice in order to retain lien rights. However, parties who contract directly with the property owner are only required to provide a preliminary notice to the construction lender, if any. Further, California specifically defines a "subcontractor" as a party who "does not have a direct contractual relationship with an owner." So, any party with a contract with an owner is a direct (or prime, or general) contractor with respect to the mechanics lien requirements. California liens are required to be served on the property owner by § 8416(a)(7) which states that: "A proof of service affidavit completed and signed by the person serving a copy of the claim of mechanics lien pursuant to subdivision (c). The affidavit shall show the date, place, and manner of service, and facts showing that the service was made in accordance with this section. The affidavit shall show the name and address of the person or persons upon whom the copy of the claim of mechanics lien was served, and, if appropriate, the title or capacity in which he or she was served." Accordingly, in order for the lien to meet the specific formal requirements it must include an affidavit of service. If the service of the lien is accomplished by sending certified mail return receipt, the affidavit can be sufficient if it includes the certified mail information. However, a mechanics lien without a proof of service affidavit does not meet the generally required formal requirements and may not be technically complete. If the service was complete, there may be an argument that the lien may still be enforceable, but mechanics lien laws usually require very strict compliance.

0 people found this helpful

Helpful

Dec 13, 2019

Put another way, if there was no lender on the project, and you have a direct contractual relationship with the owner, you are not required to serve preliminary notice. You do need to serve your lien before recording it per § 8416(a)(7). If there is time to do so, you should release the existing lien and record a new lien after properly serving a copy on the owner and filling out a proof of service to show you have done so. You have 90 days from project completion to serve and record a new lien unless a notice of completion was recorded in which case you have 60 days.

0 people found this helpful

Helpful