Arizona Preliminary Notice Guide and FAQs

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Arizona Preliminary Notice FAQs

About Arizona Preliminary 20-Day Notices

Arizona Preliminary Notice Rules at a Glance


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Preliminary Notices Are Required

Arizona law requires that a preliminary “20-day” notice be sent by every person who furnishes labor, professional services, or materials to a project as a mandatory prerequisite to filing a valid mechanics lien.


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GCs Must Send Notice

Arizona 20-day Preliminary Notice must be delivered to owner and construction lender within 20 days of providing labor, services or materials.


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Subcontractors Must Send Notice

Arizona 20-day Preliminary Notice must be delivered to owner, prime contractor, construction lender, and the party with whom you have contracted within 20 days of providing labor, services or materials. A person performing actual labor for wages is not required to serve notice.


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Suppliers Must Send Notice

Arizona 20-day Preliminary Notice must be delivered to owner, prime contractor, construction lender, and the party with whom you have contracted within 20 days of providing labor, services or materials.


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You Can Send Notices Late

Arizona allows late notices. The 20 day notice can be sent late and still be effective to preserve lien rights, but its effectiveness starts only 20 days before the notice was sent. In other words, lien rights are only preserved for work/materials provided in the preceding 20 days.


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Send Notices to Owner, GC, Lender & Hiring Party

In Arizona, the 20 day preliminary notice must be sent to the general contractor, the property owner, the construction lender, and the party who hired the party giving notice (if not one of the parties otherwise required to receive the notice).

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Preliminary Notices Are Required

Public jobs (i.e. city, state, municipal government) in Arizona require preliminary notices be sent at the start of the project.


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No Notice Required from GCs

On public jobs, claims for non-payment are generally made against the general contractor's payment bond. Since GCs will not make a claim against their own bond for non-payment, they do not have bond claim rights, and have no preliminary notice requirement.


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Subs Must Send Notice

1st-tier subcontractors do not have a technical preliminary notice requirement, and can proceed directly with making a bond claim, although it is best practice to provide notice. All other subcontractors must send preliminary 20-Day notices to the prime contractor. It's usually good practice to send to the public entity commissioning the work and the surety, if known. The notice must be sent within 20 days of first providing materials or labor.


20
DAYS
Suppliers Must Send Notice

Suppliers must send preliminary 20-Day notices in Arizona to the, public entity prime contractor. It's usually good practice to send to the public entity commissioning the work and the surety, if known. The notice must be sent within 20 days of first providing materials or labor.


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Notices Can Be Sent Late

Arizona allows late notices on public projects. If sent late, a prelim notice on a public job is effective for all the work or materials furnished by the contractor/supplier starting from 20 days before the notice was sent.


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Send Notices To GC (Best Practice to Public Entity and Surety, as well)

Preliminary notices on public jobs in Arizona must be sent to the general/prime contractor, ARS 34-223(A). However, it is a good idea to also send the notice to the public entity and the surety, especially as some bonds require the surety to be informed.

For all jobs begun on and after December 31, 2019 – the revised notice must only be sent if the price exceeds 30% of what’s on the notice. More on that here:Arizona’s 20% Rule Changes to 30% starting in December 2019.

Arizona law requires that a preliminary “20-day” notice be sent by every person who furnishes labor, professional services, or materials to a project as a mandatory prerequisite to filing a valid mechanics lien. This requirement is strict, and the only exception is that wage laborers (employees of construction participants) are not required to provide the 20-day notice.  Read our Ultimate Guide to Arizona’s 20 Day Preliminary Notice for step-by-step guidance on how to send your Arizona notice.

In Arizona, there is no exception for “direct” contractors. Even parties that contract directly with the property owner are required to deliver a preliminary 20-day notice to the property owner, as well as to the construction lender, if any. In fact, it appears that the statute technically requires a direct contractor to send a preliminary notice to him/herself! The direct contractor prelim requirement is different than the law in many states, which treat preliminary notices as tools to identify sub-tier participants to the owner, as the owner would otherwise not know who may have potential rights against the property.

Just like California’s preliminary notice requirements, in order to fully protect a noticing party’s lien rights the notice must be provided within 20 days of the noticing party’s first furnishing of labor or material to the project.

If that deadline is missed, not all is necessarily lost. An Arizona preliminary notice can be given at anytime, but if it is provided more than 20 days from first furnishing it only protects the amount s due for labor or materials furnished beginning 20 days prior to the date on which the notice was given. A complete failure to provide preliminary notice to the owner, prime contractor and construction lender is fatal to a mechanic’s lien in Arizona.

Additionally, while some states have exceptions to notice requirements provided the owner (or other applicable parties) had actual knowledge of a party’s involvement on the project, or had a deep enough connection to the project that they “should have” had actual knowledge, Arizona does not. In Arizona, the only notice that matters is formal notice.

Arizona’s preliminary notice requirements have both rare, and completely unique aspects. A relatively rare requirement for Arizona preliminary notices is that the notice must contain an estimated total contract amount. This is a specific statutory requirement, but some participants refuse to include that required information on their notices, as it could expose the GC’s mark-up to the property owner, and (presumably) cause friction in the relationship between the sub and the GC.

A unique aspect of the Arizona preliminary notice scheme is that an additional notice can be required later. Generally, states that require notices can be divided into states with a discrete notice requirement (the vast majority) and states that require recurring notices, generally monthly (few). Arizona, however, doesn’t fit into one of those boxes.

For jobs started before December 31, 2019 – if the value of the labor or materials provided to the project exceeds 120% of the previously noticed amount, additional notice is required. This requirement is set forth by ARS §33-992.01(G) and (H), and is a unique aspect of Arizona law.

One other unique aspect to Arizona’s preliminary notice law is that the notice itself must contain an acknowledgment of receipt for the receiving party to sign and return, which proves compliance with the notice requirements.

Preliminary Notice FAQs

Common questions about preliminary notices in the state of Arizona:

Prelim FAQs on Private Projects

Do I Need to Send a Arizona Preliminary Notice?

Yes. Arizona law requires that a Preliminary 20-day Notice be sent by every person who furnishes labor, professional services, or materials for which a lien may be claimed as a necessary prerequisite for the validity of the lien rights. A person performing actual labor for wages is not required to serve notice. The failure to provide a Preliminary 20-day Notice is fatal to a mechanics lien in Arizona. A lien claimant who underestimates the labor and/or materials he will provide to the project is protected up to 120% of the amount contained in the original notice.

We have written a great deal about Arizona’s preliminary notice requirements. Read those articles here:

Arizona Preliminary Notices – The Basics
Send Your Arizona Preliminary Notice on Every Job
Should I Wait To Send My Preliminary Notice?
What If Owner Refuses to Claim Preliminary Notice Mailing in Arizona?
Recent Case Makes Little Points about Arizona’s Preliminary Notice Requirement
Arizona’s 20% Preliminary Notice Rule
Arizona’s 20% Rule Changes to 30% starting in December 2019

When do I Need to Send a Arizona Preliminary Notice?

The notice must be given no later than 20 days after the claimant has first furnished labor or materials to fully protect the lien claimant. A lien claimant who failed to provide a 20-day notice within 20 days of first providing labor or materials may provide the notice at a later date, but will only retain lien rights for materials and/or labor furnished within the 20 days preceding the late notice, and the labor and/or materials provided thereafter.

What if I Send the Arizona Preliminary Notice Late?

If you miss the required date, all is not lost. A lien claimant who failed to provide a 20-day notice within 20 days of first providing labor or materials may provide the notice at a later date, but will only retain lien rights for materials and/or labor furnished within the 20 days preceding the late notice, and the labor and/or materials provided thereafter. A notice should be filed, even if it is late, because the failure to provide a notice at all is absolutely fatal to a mechanics lien in Arizona.

How Should the Arizona Preliminary Notice be Sent?

The Preliminary 20-day Notice must be delivered either by first class mail (with a certificate of mailing), or by registered or certified mail, with the sender obtaining a certificate of mailing, receipt of registration, or receipt of certification. Arizona also requires proof that the notice was given, either by acknowledgement of receipt by signature of person receiving notice, or by “Affidavit of Proof of Service” accompanied by the certificate of mailing or receipt of certification or registration if the person on whom the notice was served fails to complete an acknowledgment within 30 days. Proving that the preliminary notice was sent is very important. Consider this article about what to do when the property owner refuses to acknowledge receipt of a notice.

Do I Have to Send the Arizona Preliminary Notice to Someone Other than the Owner?

Yes. In Arizona, the Preliminary 20-day Notice must be given to the owner, the general contractor, the construction lender (if any), and the party with whom you have contracted.

For those who contracted directly with the property owner, the preliminary notice should be sent to the property owner and the construction lender on the project (if there is one).

For those who did not contract directly with the property owner, the preliminary notice should be delivered to everyone up the project hiring chain from you. For instance, if you are a material supplier hired by the subcontractor, the preliminary notice should be sent to the subcontractor and general contractor, as well as the property owner and construction lender (again, if there is one).

If you do not know who the construction lender is, or if there is even a construction lender on the project, you can make a request for this information along with the preliminary notice.

Is the Arizona Preliminary Notice Requirement met when sent or delivered?

The requirement to send a preliminary notice is fulfilled upon mailing. This is made clear by ARS § 33-992.01(F) which provides that “service is complete at the time of the deposit of notice in the mail.” Further, courts have held that “actual receipt” of the notice is not even required. So long as the notice is mailed to the right place in the right way, the potential claimant has satisfied its obligations. (Case is Columbia Group v. Jackson). See blog article: What If Owner Refuses To Accept Preliminary Notice Mailing in Arizona?

What information needs to be included in my Arizona notice?

The notice in Arizona should include the description of labor or materials that are to be furnished on the project, the address of the property, the party who hired the claimant, the estimated total contract amount, and identification of the property owner.

In Arizona, the preliminary notice is different from many states in that the legal description of the property where work was performed is required to be included. This information can be found with the county’s assessor office.

Prelim FAQs on Public Projects

Do I need to send an Arizona Preliminary Notice?

It depends.

General contractors are the parties obtaining the payment bond for the protection of sub-tier participants. Since a GC has no rights against their own bond for nonpayment, a GC has no notice requirements.

Arizona does not technically require a first-tier subcontractor (a sub contracting with the GC directly) to provide a preliminary notice on an Arizona public project in order to retain the right to make a later bond claim. However, providing such a notice is best practice.

Any other party, however, is required to provide a 20-day preliminary notice to preserve the right to make a bond claim.

When do I need to send a Arizona Preliminary Notice?

When required, preliminary notice in Arizona should be given within 20 days of the claimant’s first furnishing of labor and/or materials to the project. In Arizona, the service of the preliminary notice is effective when mailed, not received, so a notice sent to the general contractor within the 20-day period is timely.

What if I send the Arizona Preliminary Notice Late?

If the preliminary notice is not sent within 20 days from the claimant’s first furnishing of labor and/or materials, it is only effective as to labor and/or materials furnished 20 days prior to the sending of the notice, and thereafter.

This is specifically set forth by ARS 33-992.01(E) which states that a party is “not precluded from giving a preliminary twenty day notice” at any time within 20 days from that party’s last  furnishing of labor or materials to the job, but that any subsequent lien is limited to only “such labor, professional services, materials, machinery, fixtures or tools furnished within twenty days prior to the service of the notice and at any time thereafter.”

How Should the Arizona Preliminary Notice be Sent?

Arizona preliminary notice should be served by registered or certified mail, and may be mailed to any office or residence of the general contractor.

To Whom Must the Arizona Preliminary Notice be Given?

If required, the preliminary notice must be given to the general contractor. However, it is best practice to also give the notice to the public entity in charge of the work, and to the surety. Many bonds require the surety to be informed of a payment dispute prior to a claim being made, and fighting about notice to the surety is the last thing a claimant wants to do during a payment dispute and potential bond claim.

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Arizona Preliminary Notice Form Template

The Arizona preliminary notice form has certain information specifically required by statute. This doesn’t mean that the form has to look at a certain way, but it does mean that there is certain text and information that must be included. The forms provided here for free by Levelset are compliant with the Arizona rules. You can download them for free, or use our system to send or request them easily.

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