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Should a revised preliminary notice be sent?

Michigan

A general contractor sent us a copy of their Notice of Commencement after they received one of our Notices of Furnishing in Michigan. They pointed out that the legal property description that we had was only containing one part of the parcel and that their NOC had the up to date information. What are the benefits or risks when it comes to sending back a revised notice of furnishing?

2 replies

Jan 7, 2021

If the deadline to send preliminary notice hasn't yet passed, then there's little harm in sending an updated or revised preliminary notice. However, if the deadline to send notice has passed, or if it will be cutting things close, then it's probably worth additional consideration. Because, when a Notice of Furnishing is sent late in MI, it will only protect the work done after the notice is given. Interestingly, Michigan's lien statute does have a provision stating that if there isn't a timely response to a request for the project's Notice of Commencement, the Notice of Furnishing deadline will be pushed back to 20 days after the copy of the Notice of Commencement is receieved. Though, it's not immediately clear whether that's relevant to this situation.

Still, the statute isn't immediately clear about what affect a revised notice might have on the validity of a preliminary notice, particularly where the property was easily identified by recipients and a contractor has reached out to correct the information. On one hand, the notice is supposed to notify others, and it sounds like it clearly has. Though, on the other hand, some notice requirements can be strict and it's not-unthinkable that a minor error could affect mechanics lien rights in a negative way.

Ultimately, it's hard to provide a clear cut "yes" or "no" since there's not really any statutory guidance re: revised or amended notices and deadlines. But, sending a revised notice which clearly states that it's a revision to the previously-sent notice might not be all that risky. That'd seem especially true if it's sent with an explanation of what information was changed & why. Attaching a copy of the original notice that was sent might be helpful, too.

Levelset discusses this issue broadly here: Is it OK to Send Revised Preliminary Notices? Does it Affect My Deadlines? 

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Jan 10, 2021

I recommend sending an Amended Notice of Furnishing now that you have a Notice of Commencement. 

I follow several rules of thumb in my practice:

1. When in doubt, send a notice. 

2. If you're not sure who to send the notice to, send it to everyone.  

3. There's little harm in providing too much notice, only with providing inadequate or late notice.  

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