Sending a New York 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 New York.
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Notice of intent to lien
New York preliminary notice requirements for:
General contractors are not required to send notice on private projects.
Note, however, that there are specific contractual requirements that contain providing "notice" for direct contractors on home improvement projects.
General contractors are not required to send notice on public projects.
Subcontractors and suppliers are not required to send notice on private projects.
New York is a "non-notice" state and no preliminary notices are required from any party on any project. This extends to project participants furnishing labor or materials to public projects.
Subcontractors and suppliers are not required to send notice on public projects.
Sending preliminary notice in New York is generally completely voluntary, but that doesn't mean that you might not have questions about the process or any potential requirements. These are some frequently asked questions (and answers) about preliminary notices in New York.
No. New York is a non-notice state, meaning that parties to a construction project are generally not required to deliver any preliminary notice to preserve rights. Any party may send notice if they so desire.
I have the questions I review filtered to California only, and am confused by the "8-month rule" you mentioned. In California, lien claimants who are subcontractors have only 30 days to record a lien after the owner or prime contractor records a notice of completion; if no notice of completion is served, the subcontract still only has 90 days to record a lien.
It's also unclear from your question whether the entire project was finished in January, or just your scope. If the project continued after your scope, and was only completed within the past 90 days, you may still have lien rights. Here though, it appears that your lien rights have likely expired, however, you may still file a lawsuit for breach of contract against the prime contractor for up to four years after the payment was due. For this, I would recommend you retain a qualified construction attorney licensed in California.
Lien recording docs mailed day before payment received
If the lien has already been sent off for recording, there might not be much to do about it. Sometimes, claimants can call the recorder at the last second and ask them not to record the lien they've initiated the filing process for. But, generally, once that claim is in the mail - it will likely be filed. Still, it couldn't hurt to call the recorder to see if they'll pause the recording or simply set the document aside. You can find your recorder's contact information here: New York County Recorders.
It's generally not a good idea to release a lien simply because payment has been promised. Of course, if the customer is serious and has provided proof they're ready to make payment - like a copy of the check - it might make sense to work with them somewhat. It's common for a claimant to provide a conditional waiver in exchange for payment, or to draw up an unsigned unconditional waiver to show the customer so they know you're prepared to waive the lien claim (it's sort of like them providing you a copy of the check, but not the check itself). For further discussion: If I’ve Been Promised Payment, Should I Wait to File a Mechanics Lien?
Note, of course - if the lien gets filed, a simple lien waiver might not be enough to get rid of it. Rather, a lien release is typically in order. Providing a customer an unsigned copy of a lien release could be a good tactic if payment hasn't yet been received. If payment is in hand, it's generally best to release the lien. This article discusses the timeline for releasing a lien when payment seems to be on the horizon: Construction Lien Release Process: the Timeline is Tricky.
New York has a rare approach to preliminary notices: the lien law says that they aren’t required for any project participant on any project. This complete lack of noticing requirements definitely makes New York an outlier when it comes to preliminary notice, and construction payment law, the majority of states have at least some notice requirement.
But, while the mechanics lien law specifies no preliminary notices are required whatsoever, is that really the case? Well, pretty much yes. But New York does require preliminary notice of a type for direct contractors performing work pursuant to “home improvement contracts.” The rules regarding home improvement contracts, and that define what actually constitutes a home improvement contract, are set out by New York’s General Business Law. Like other states, New York has specific requirements for contracts related to “the repairing, remodeling, altering, converting, or modernizing of, or adding to, residential property” or the construction of a custom home. These strict contractual requirements are generally formulated to provide protection to the homeowner, given that a piece of residential property is often a person’s largest asset, and many homeowners are not necessarily very sophisticated with respect to either contractual law or construction.
One of the requirements for home improvement contracts, set forth by GBS § 771, is that the contract must contain a notice to the owner that parties furnishing labor or material, and who are not paid, may have a claim against the owner that can be enforced against the property pursuant to applicable lien laws. Additionally, a home improvement contract must include certain specific language about mechanics liens “in clear and conspicuous bold face type.” This required language is:
“Any contractor, subcontractor, or materialman who provides home improvement goods or services pursuant to your home improvement contract and who is not paid may have a valid legal claim against your property known as a mechanic’s lien. Any mechanic’s lien filed against your property may be discharged. Payment of the agreed-upon price under the home improvement contract prior to filing of a mechanic’s lien may invalidate such lien. The owner may contact an attorney to determine his rights to discharge a mechanic’s lien”
While this is a required contractual provision, and not specifically a notice – and it is set forth by the General Business Law and not the mechanics lien law – this requirement is, for all intents and purposes, a preliminary notice related to lien rights that must be provided by parties contracting with a homeowner on certain residential projects.
The generic preliminary notice form can be used in New York, or any other state where notice isn’t required. Our free forms provide information about your company to the property owner, GC, and other paying parties on a construction project.
Fill the form out
Be careful! Accuracy is important.
The next step is to fill the form out. Make sure you do this as completely and accurately as possible, as GCs and owners will often rely on this document to communicate with you. Mistakes on your New York preliminary notice could cause payment delays.
Deliver the form
New York doesn’t have specific delivery requirements. Send the preliminary notice however you see fit.
How to send a Preliminary Notice with Levelset
Select Preliminary Notice document.
Provide basic job information.
Levelset sends the document for you. Postage included!