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Should I file a Claim of Lien even if I didn't include a notice of lien rights?

I am a small contractor that is having issues receiving a final payment from a client. We have sent notice of intent to lien and are now trying to file the Claim of Lien, but just found out that I should have included a Notice of Lien Rights with the initial contract. Should we bother trying to file the Claim of Lien or just move on to something else? We do believe it will end up in court either way at this point. Unfortunately, the client has been exceptionally uncooperative and uncommunicative.

1 reply

Aug 12, 2020

You are correct. A Notice to Lien Rights under Wis. Stat. §779.02(2)(a) needs to be included in the prime contract, or provided separately within 10 days of first furnishing labor or materials to the project. Failure to provide this notice is typically fatal to a prime contractor's lien rights; unless:

The contractor pays all subs and suppliers within 6 months of their last date of furnishing labor or materials; &
The time for subs and suppliers to give preliminary notice (60 days from first furnishing) has passed with no notices provided, or lien rights waived.

To translate that in simpler terms, if the prime contractor has paid all their subs and suppliers in a timely fashion and none of the subs and suppliers sent a preliminary notice (or waived their rights) then the lack of Notice of Lien Rights will not preclude them from filing a Wisconsin mechanics lien. But this is a very specific (and often rare) circumstance. If this isn't the case, then filing a mechanics lien would be a futile attempt. If the homeowner retains counsel, the claim will be challenged easily. But that doesn't preclude you from pursuing other legal remedies; most notably claims for breach of contract or unjust enrichment. Furthermore, if the amount in dispute is under $10,000, then these cation can be brought in Wisconsin small claims court. Good luck! Here are some other resources you may find helpful:

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