Sending an Illinois preliminary notice is an effective way to speed up payment on a construction project. A preliminary notice is an informational document typically sent to the property owner near the beginning of a construction project. Here's what you need to know about the rules and requirements for sending preliminary notice in Illinois.
“Levelset takes something that is pretty complex and makes it easy.”
Ready to send?
$19Free for a limited time
Start a job
Escalate payment problem
Notice of intent to lien
Illinois preliminary notice requirements for:
Preliminary notice is not required.
Parties who contract directly with the property owner are not required to send preliminary notice in Illinois.
On public jobs, any claims for non-payment are made against the general contractor's 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.
If working on single-family owner-occupied residence, notice required within 60 days of starting work.
Due within 60 days
Sent to Property Owner (and Mortgage Lender)
Can be sent late sometimes
Additionally, a Notice of Intent to Lien must be provided within 90 days of last furnishing labor and/or materials on ALL projects.
Preliminary notice is not required.
Illinois does not require a preliminary notice to be sent in order to retain rights to make a claim against the payment bond secured for a project. However, there are many reasons why sending a preliminary notice even when not specifically required can sometimes be beneficial.
If you're sending preliminary notices in Illinois, it's important to understand the rules and requirements in order to get the most benefit possible from sending your notice. Since the notice rules and requirements change from project to project in Illinois, and are complex, this can all be difficult. These are some frequently asked questions about the notice process in Illinois.
A traditional preliminary notice will never be required from a general contractor. However, GC’s are required to provide a Sworn Statement on all private projects, and provide statutory notice language in addition to the sworn statement on owner-occupied, single-family, residential projects.
As far as all other potential claimants are concerned, a preliminary notice (aka Notice to Owner, 60-Day Notice) is only required on owner-occupied, single-family residential projects to secure the right to file an Illinois mechanics lien.
What information is required on an Illinois preliminary notice?
• Names & addresses of all parties furnishing labor, services, or materials to the project
• Amounts due or to become due to each party listed
• Made under oath or verified by affidavit
GC Owner-Occupant Warning Notice
The following statement in 10pt, bold type:
THE LAW REQUIRES THAT THE CONTRACTOR SHALL SUBMIT A SWORN STATEMENT OF PERSONS FURNISHING LABOR, SERVICES, MATERIAL, FIXTURES, APPARATUS OR MACHINERY, FORMS OR FORM WORK BEFORE ANY PAYMENTS ARE REQUIRED TO BE MADE TO THE CONTRACTOR
Notice to Owner
To be valid, the notice must be in at least 10pt, bold type, and contain the following:
• Claimant’s name & address
• Hiring party’s name & address
• Date of first furnishing labor and/or materials to the project
• General description of labor and/or materials provided
The subcontractor providing this notice has performed work or delivered material to your home improvement contractor. These services or materials are being used in the improvements to your residence and entitle the subcontractor to file a lien against your residence if the labor, services, material, fixtures, apparatus, or machinery, forms or form work are not paid for by your home improvement contractor. A lien waiver will be provided to your contractor when the subcontractor is paid, and you are urged to request this waiver form your contractor when paying for home improvements.
How should a preliminary notice be sent in Illinois?
The Sworn Statement and Owner-Occupant Warning Notice are typically incorporated into the construction contract. If not, there is no specific provision regarding delivery, so the following methods are considered best practice.
Is the IL preliminary notice considered served when sent or when received?
All Illinois preliminary notices, if sent by certified mail, are considered served upon deposit in the mail. However, actual receipt is still required to be valid; and that burden lies with the notifying party.
What if an Illinois preliminary notice is sent late?
A general/direct contractor’s failure to provide the Sworn Statement or Owner-Occupant Warning Notice is fatal to the claimant’s lien rights.
If a subcontractor fails to provide the Notice to Owner within 60 days of first furnishing, the claimant’s lien rights are waived “to the extent the owner has not been prejudiced by payments made before receipt of the notice.” In other words,
If a party fails to provide the 60-day notice when required, that party’s lien rights are waived to the extent of any payments made by the owner to the prime contractor prior to receiving the notice. In other words, the claim of a sub who failed to provide timely notice will be limited to the unpaid balance that the owner has yet to pay the original contractor.
See the answer to this IL sub’s question in the Expert Center, for more on this:
No. Illinois does not require any preliminary notice to be given to preserve the right to make a bond claim on a public project, nor to make a claim on the contract funds due to the general contractor.
To secure the right of file an Illinois mechanics lien, there are two potential notices that may be required. 60-Day Notice to Owner The first is a true preliminary notice, referred to as a 60-Day Notice to Owner. Subcontractors working on owner-occupied, residential projects are required to send a "Notice to Owner" within 60 days of first furnishing labor or materials to the project. Failure to do so will limit your mechanics lien rights to the unpaid balance the owner has yet to pay to the general contractor. 90-Day Notice of Intent to Lien This second type of notice is a Notice of Intent to Lien required by anyone who didn't contract directly with the owner, on any and all private projects. This needs to be sent within 90 days from the last date the claimant furnished labor or materials to the project. Failing to send this notice is fatal to your mechanics lien rights. Alternative recovery options If your lien is invalid, you still have legal options available to recover the unpaid balance. These are typically lawsuits based on breach of contract and unjust enrichment against the party that hired you. Furthermore, depending on the amount in controversy, you may be able to bring these claims in Illinois Small Claims court if the claim is under $10,000. In any case, you should consult with an Illinois construction attorney to advise you on the specifics of your situation. Good luck!
Generally, warranty work won't entitle contractors to additional payment. So, considering preliminary notices are used to (1) encourage smooth and timely payments; and (2) to preserve lien rights, there may not be much point in sending a prelim if payment won't be made for the work. But, if payment will be made for the new work, then it'd probably be a good idea to send a new preliminary notice (if one is required). In essence, that'd be like entering into a new contract for the specific scope of work. For further discussion on Illinois' preliminary notice rules: Illinois Preliminary Notice Guide and FAQs.
Mechanics liens are a powerful payment recovery tool - but they should really only be used for payment disputes, and serious ones at that. Notably, simply keeping the right to file a lien alive will often speed up the payment process. Let's first look at some background information on mechanics liens and other payment recovery tools. Then, we can take a look the 3 distinct phases of using lien rights in Illinois.
Mechanics lien basics
First, it's important to know that mechanics liens are generally considered the nuclear option. And, as a result, a mechanics lien claim is typically only appropriate when there's a full-blown payment dispute at hand and if other options to compel payment aren't working. Before a lien filing becomes necessary, though, a claimant should normally pursue some less-adversarial recovery options. For one, something as simple as an invoice reminder can lead to payment. Or, escalating matters with a demand letter could help to get paid, if necessary. And, if other payment recovery tools don't work, threatening to file a lien is a productive final step before a lien claim (and, as I'll discuss further below, it's actually required before filing an Illinois lien claim). For more info on how mechanics liens work and how they lead to payment, these two resources should provide a lot of clarity: (1) Mechanics Lien Basics: Guide, Forms, & Resources; and (2) How Do Mechanics Liens Work? 17 Ways a Lien Gets You Paid.
Filing an Illinois mechanics lien
First, note that landscapers are generally entitled to lien rights in Illinois, as set out in § 60/1 of the Illinois mechanics lien statute. Though, to preserve that right, there are some requirements to keep in mind.
Though, landscapers who are hired by someone other than the property owner must send a preliminary notice in order to preserve that lien right. Very importantly: That notice does much more than simply preserve lien rights. Rather, it diminishes the potential that a payment dispute happens in the first place because it promotes transparency and collaboration on the job. Plus, when others know you've preserved your lien rights, they'll often take extra care to ensure you get paid. This notice must be sent within 60 days of first furnishing labor or materials to the job.
Notice of Intent to Lien
If the payment disputes erupt on the job and if other attempts at getting paid aren't working, then sending a Notice of Intent to Lien can get the job done. In Illinois, lien claimants hired by someone other than the owner must send a Notice of Intent to Lien to preserve their lien rights. But, even when you're hired by the owner, it's still a useful tool to force payment before a lien filing becomes necessary. This notice must be sent within 90 days of last furnishing labor or materials to the job.
Preliminary Notice Rules Depend on the Project Type
General contractors, or any other party with a direct contract with the property owner, are not required to give preliminary notice in Illinois. Other project participants, however, are required to send notice in order to maintain the ability to file a valid and enforceable mechanics lien. On residential projects, parties other than those who contracted directly with the property owner are required to provide a 60-day preliminary notice within 60 days from first furnishing labor or materials to the project. This is a “traditional” preliminary notice requirement, and it is crucial to comply if the work or materials being furnished are for the improvement of an owner-occupied single-family residence (1-4 units).
On all jobs, project participants not in direct contract with the property owner are required to send a Notice of Intent to Lien within 90 days of the last day that service or materials were provided. Note that this means that parties on a residential project must send both a 60-day preliminary notice and a 90-day notice of intent to lien in order to qualify for mechanics lien protection.
An additional requirement is also applicable to home repairs or remodeling work. This type of work is subject to the Illinois Home Repair and Remodeling Act, which requires project participants to deliver a “Home Repair: Know Your Consumer Rights” pamphlet prior to the start of work. This notice does not impact the future lien rights of any construction participant, but failure to provide the notice gives the homeowner a remedy to sue the contractor under the consumer fraud act. Read about this requirement in Illinois Legislature Amendment May Save Mechanics Lien Rights for Home Remodelers.
Read the step-by-step guide to preparing and serving a preliminary notice in Illinois. This article will walk you through everything you need to know about the form, the information required, and the rules for delivering notice.
Illinois’s mechanics lien laws are specific about the language and information that you must include on notice. Download a free preliminary notice form here. Our forms are prepared by construction attorneys to meet the requirements in Illinois’s statute, making it easy to get this part right.
Making a mistake on the preliminary notice form could cause you to lose your right to file an Illinois mechanics lien if you don’t get paid later on. It’s critical to verify all of the the information to ensure that it’s completely accurate.
Deliver the notice
Illinois law is strict about serving a preliminary notice. It must be served upon the Property Owner for residential projects within 60 days from first furnishing labor or materials to the project. If mailed, notice must be delivered by certified mail return receipt requested with delivery restricted to the addressee only.
How to send a Preliminary Notice with Levelset
Select Preliminary Notice document.
Provide basic job information.
Levelset sends the document for you. Postage included!