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Should we resend the Preliminary notice if by accident it was not sent certified and it is now past 20 days? Can a simple tracking number satisfy the certified mailing requirement?

CaliforniaPreliminary Notice

Our Zlien account was originally set up to automatically change the owner’s information without notifying us. Under this setting, there was no process to catch scenarios when our customer turned out to be the Architect or General Contractor, which then changes our mailing requirement. This issue happened more often than not over 2.5 months, and around 80 preliminary notices were sent without the proper mailing requirement fulfilled. We have now changed the setting, rectifying the issue going forward. My question is, however, should we resend these notices that are now outside of the 20-day period? Keep in mind, Zlien sends all notices, certified as well as USPS, with a tracking number. It is my understanding, that based on the Zlien process, the only difference between the certified mail and USPS is the signature. With that said, can the certified mailing requirement be satisfied with a tracking number sent via USPS mail? Or does it have to be labeled certified? Does the law require a signature?

1 reply

Nov 7, 2018
I'm sorry to hear about that. First, it's worth noting that the California notice requirements are what they are - and any variation from what's required could potentially result in invalid notice. That being said, where notice has actually been sent and received, and where receipt of that notice can be verified, there could be some leniency when evaluating where notice was "properly" sent. But again - when the requirements aren't strictly followed, there's always potential for notice to be ineffective. Under § 8106 of the California Civil Code, notice may be provided by personal delivery and by mail in the manner provided under § 8110. § 8110 states "Except as otherwise provided by this part, notice by mail under this part shall be given by registered or certified mail, express mail, or overnight delivery by an express service carrier." Thus, notice may be given by hand or by registered or certified mail, express mail, or overnight delivery. When notice is given by some other form of mail, it will not strictly fulfill those requirements. But it's important to recall that whether or not notice requirements were strictly adhered to should really only come up in the event that a later-filed mechanics lien is challenged, or if a later-filed mechanics lien eventually needed to be enforced. So, many of the benefits of sending preliminary notice are still intact as long as notice was actually received (such as improving communication and visibility), plus there's a chance that notice being sent outside of required methods ends up as a moot point. Further, it's possible that a court could consider flawed notice to be effective to preserve lien rights - but at the same time, it's also impossible to predict how a given court might turn on the issue. Regarding whether notice should be re-sent - notice sent beyond 20 days from first furnishing work will only protect lien rights the prior 20 days of work. So when deciding whether or not to send revised notice, it's important to note that sending revised notice could potentially reset any timelines for prior sent notice. Of course, when the notice previously sent was flawed, it might not work to preserve lien rights anyway.
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