Home>Levelset Community>Legal Help>Our construction company didn't file a preliminary notice because the GC did not send us their lender info. Are we able to file a stop payment if we did not file a preliminary notice? Or, asked alternatively, if a GC doesn't provide us their financial institution/lender, what recourse do subK's have?

Our construction company didn't file a preliminary notice because the GC did not send us their lender info. Are we able to file a stop payment if we did not file a preliminary notice? Or, asked alternatively, if a GC doesn't provide us their financial institution/lender, what recourse do subK's have?

CaliforniaPreliminary Notice

1 reply

Jul 13, 2018

That's an interesting question, and looking at some of the basic requirements for California preliminary notice should help. In California, other than the GC and laborers, everyone needs to send preliminary notice to (1) the property owner, (2), the GC, and (3) the construction lender - if a lender is present. Further, under § 8208, a direct contractor must make the name and address of the owner and lender available to any parties who seek to give preliminary notice. Unfortunately, though, the California Civil Code does not prescribe a specific remedy when a contractor fails to provide this info. Regardless, when notice is required, it should be sent to the best of the sending party's ability - even if it is not sent to all of the required parties and even if it doesn't contain all of the necessary information. Sending a notice that is mostly or partially complete can still preserve lien and stop payment rights. Plus, when a notice is partially incomplete as a result of the general contractor's refusal to provide information, because that contractor is statutorily required to provide that information, it's unlikely that a court would hold the missing information against the party who attempted to send notice (if it came down to that). So, if notice is required and sent to a property owner and the GC, but does not go to the lender because the GC refused to provide the lender's information, lien and stop payment rights would likely be preserved. But if a claimant hasn't sent any preliminary notice because one party's contact information is missing, that might be a harder argument to make. Even still - sending a Stop Payment Notice or filing a lien might be possible. Of course, the validity of the notice or the claim could certainly be called into question. If a claim or notice is challenged, it would be hard to predict how a court might rule. However, the refusal to furnish pivotal information would not likely be protected.

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