About Arkansas preliminary notices
Arkansas has a very interesting and relatively complex and unique preliminary notice scheme. Generally, notice requirements are separated between residential projects of 4 units or less, and commercial projects (including “residential” projects of 5 or more units). Notice requirements and deadlines differ depending on which type of project a participant is furnishing labor or material to.
Commercial projects (including “residential” projects of 5 or more units) have relatively straightforward notice requirements. On these projects, all parties who did not contract directly with the property owner and architects, engineers, surveyors, appraisers, landscapers, or abstractors who did contract with the property owner, are required to give notice within 75 days of last furnishing labor or materials to the project. Additionally, if a lien claim is ultimately required, a notice of intent to lien is required to be provided at least 10 days prior to filing the lien claim. These notices are required from all project participants.
Residential projects in Arkansas, on the other hand, have much more confusing notice requirements. On residential projects, a direct contractor is required to provide a Pre-Construction Notice to Owner prior to starting work. If the direct contractor doesn’t provide this notice, not only is that contractor barred from later filing a valid lien claim, s/he is also not allowed to begin any action to enforce any provision of his/her contract with the property owner. Additionally, a contractor who fails to provide the preliminary notice can be fined up to $1000.
A unique aspect of the Arkansas preliminary notice scheme, however, is that while the general contractor’s notice to owner works to the benefit of the sub-contractors and material suppliers, his failure to give the required notice affects their lien rights. The only party required to provide preliminary notice on residential projects is the general contractor, but if no notice is provided on the project, everybody’s lien rights are extinguished.
In other words, with respect to sub-tier parties on an Arkansas residential project, at least one preliminary notice must be given to the property owner, but it doesn’t really matter who it is from. And, if a notice is given by another party, it protects all sub-tier participants’ rights to file a lien, but only protects the labor or material furnished by each sub-tier participant after the notice was given. This means, of course, the only way to guarantee that all labor or material furnished to the project is protected, is for each sub-tier party to provide their own notice prior to work.
Additionally, if a lien claim is ultimately required, a notice of intent to lien is required to be provided at least 10 days prior to filing the lien claim. The notice of intent to lien is required from all project participants.