Home>Levelset Community>Legal Help>Under what circumstances are we not obligated to send a preliminary notice, without forfeiting our rights to file a mechanic lien? What is the process to file such a lien? Is there a distinctive difference in the treatment of individual homeowners, and business owners?

Under what circumstances are we not obligated to send a preliminary notice, without forfeiting our rights to file a mechanic lien? What is the process to file such a lien? Is there a distinctive difference in the treatment of individual homeowners, and business owners?

If we can confirm that there is no “construction lender” and that we are directly contracted with the owner, is it necessary to send a preliminary notice? If the answer is no, and a situation calls for us to file a mechanic’s lien, is there a time limit to file? Assuming so, when does that window close? What documents are required to file a mechanic’s lien in this scenario? Do these rules change, based on whether or not our client is a homeowner vs. a corporate owner? In other words, if we were contracted with an individual homeowner who had no “construction lender”, are we obligated to send the 20-day preliminary notice to anyone before we can exercise our right to put a mechanic lien on the property? What if, instead, the owner was a corporate entity or trust fund? What is the process and time-line restrictions for putting a mechanic’s lien on a client, for whom we previously had no legal obligation to send a preliminary notice to?

1 reply

Mar 12, 2019

Preliminary notice and mechanics lien requirements and deadlines can be confusing. In California, the general requirements are as follows:

All parties are required to provide preliminary notice, however any party who contracts directly with the property owner is only required to provide a preliminary notice to the construction lender, if any. To the extent a party contracts with the owner, and there is no construction lender providing funds for the improvement, preliminary notice is not specifically required. If the contractor contracted with the property owner it doesn't make a difference who the property owner is, provided the work of improvement is not a public works project.

While notice may not be specifically required in some situations, it is always a good idea to provide some sort of notice prior to going through with filing a lien, to give an opportunity to resolve payment issues prior to undertaking that step and to jump-start communication. A notice of intent to lien, although not required in California, can accomplish this.

If a preliminary notice is not required, a claimant can just proceed with filing the lien itself. There are strict timing requirements that apply. In California, a party who contracted with the property owner must file their lien within 60 days from the filing of Notice of Completion or Cessation, or if neither are filed, within 90 days from completion of the work as a whole. Once the lien is filed, an action to enforce the lien must be initiated within 90 days after the date the lien is recorded, or the lien will expire and become unenforceable. The lien must be recorded with the county recorder for the county in which the improved property is located, and served on the property owner by sending the lien by registered mail, certified mail, or first-class mail, evidenced by a certificate of mailing, postage prepaid, addressed to the owner or reputed owner at the owner’s or reputed owner’s residence or place of business address or at the address shown by the building permit on file with the authority issuing a building permit for the work.

You can read more about the California requirements and frequently asked questions here: https://www.zlien.com/mechanics-lien/california-lien-law-faqs/

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