I did not take the preliminary steps to secure my lien rights and now we’re worried about not getting paid on a project… what are our options? What if a NOI or lien do not work?
Aug 24, 2017
There a few points of discussion here:
1) whether you are practically able to get a lien recorded and use it to get paid;
2) whether any lien you file would be legally/technically valid; and
3) what are other options.
If you didn't send a preliminary notice, you first want to determine if a preliminary was actually needed. There are always exceptions to rules, and there may be some specific exception you fall into - this is likely rare in AZ, however. If you needed to send a prelim, and actually missed the deadline completely, you likely lost the ability to file a valid mechanics lien. This is especially true in Arizona where you actually need to include a certification with the mechanics lien filing that you sent the notice, along with proof.
There are options other than a notice of intent to lien, or lien itself, though. These can include demand letters, or just filing a lawsuit. Just because a party doesn't have the ability to file a valid lien doesn't meant they don't deserve to be paid - and have the right to get what they are owed. Filing a lawsuit for breach of contract, unjust enrichment, or some other cause of action dependent on your situation is always an option. Depending on the amount owed, small claims court may be an option. If not, it is likely that an attorney will be required, so you may wish to speak with an attorney to get a better overview of your particular situation and the possible avenues to recovery.