Sending an Oklahoma 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 Oklahoma.
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Notice of intent to lien
Oklahoma preliminary notice requirements for:
GCs are not required to submit a preliminary notice on private projects.
However, submitting a preliminary notice no matter what the state requirements are is a great way to speed up payment.
General contractors are not required to send a preliminary notice on public projects.
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.
Subcontractors and suppliers usually need to send a notice to owner or a pre-lien notice on private projects.
Notice must be sent within 75 days
Notice cannot be sent late
Notice must be sent to owner and GC
If the claim is for $10,000 or more or the project is owner-occupied, subs and suppliers must send a preliminary notice.
Subs and suppliers aren't required to send preliminary notice on public projects.
However, sending preliminary notice even when not required is generally beneficial to promote visibility, open channels for communication, and streamline payment.
If you're sending preliminary notices in Oklahoma, it's important to get all the details right. Oklahoma has specific rules and requirements that determine whether a notice is required, and it's important to make the right determination. If you're receiving prelims, it's important to know what you're looking at and know what to do in followup. Since prelims in Oklahoma are subject to a lot of complex rules and requirements, this can all be difficult. Here are some frequently asked questions (and answers) about the Oklahoma preliminary notice process.
All parties who did not contract directly with the property owner are required to send a preliminary notice if one of the two following circumstances applies:
1) the property includes an owner occupied dwelling; or
2) the claimant’s aggregate claim is greater than $10,000 on a non-residential project. Oklahoma defines a residential project (distinct from an owner-occupied residential project) as a single or multi-family residence of four or fewer units, none of which are occupied. No preliminary notice is required for such a residential project.
If one of these two circumstances applies, the lien claimant is required to give preliminary notice to the general contractor and the property owner.
It is unclear if the general contractor is required to give the property owner preliminary notice on an owner-occupied project, but it may be worthwhile to give the notice out of an abundance of caution.
When do I Need to Send a Oklahoma Preliminary Notice?
Preliminary notice, when required, must be given prior to filing the lien statement, and no more than 75 days after the last date on which the lien claimant furnished labor and/or materials to the project. Only one notice is required per project, even if the lien claimant continues to provide labor and/or materials after the notice has been given.
What if I Send the Oklahoma Preliminary Notice Late?
Failure to give preliminary notice within the 75-day period, when notice is required, is fatal to a mechanics lien claim in Oklahoma. Further, when a lien claimant files a statement of lien with the county clerk, he must also provide an affidavit certifying that he complied with the preliminary notice requirements. Falsification of the affidavit is a misdemeanor, and the lien claimant may be fined up to $5000 and/or imprisoned for 30 days.
How Should the Oklahoma Preliminary Notice be Sent?
Oklahoma only requires that the preliminary notice be “sent” to the general contractor and the property owner. However, it is generally advisable to send the notice via certified mail. The lien claimant should also keep a copy of the notice and affidavit of delivery for attachment to the lien statement.
No. Oklahoma does not require preliminary notice to preserve rights to make a bond claim, if the claimant is otherwise entitled to that protection. Any party, however, may send notice if they so desire.
To Whom Must the Oklahoma Preliminary Notice be Given?
People are asking Oklahoma construction attorneys:
I hired a handyman to install spray foam insulation. He was paid in full prior to the project. He verbally told me he would be doing the work, his invoice states he will be doing the work, the invoice is under his name (not a company name). He (without my knowledge) hired another company to do the work. 73 days later this other company came to me door. I gave him the address and phone numbers for my handyman. He stated he wasn't paid..and I thought it could be a scam. 85 days post install they filed a lien on my property. This was the first time I had the name of the company, and dollar amount. Is this lien valid? No pre-lien notice, they were not authorized to work on my property, my handyman did not have the authority to bring in additional people, and the amount this company charged was well over the expected price. Last, the work has unfinished repairs.
Whether or not lien claims are valid can be difficult to easily determine. There are, however, certain requirements that must be met in order for liens to be enforceable.
1. the property includes an owner-occupied dwelling; or 2. the project is non-residential and the claimant's aggregate claim is greater than $10,000.
So, to the extent that a project took place on an owner-occupied dwelling, all parties that did not contract with the property owner must deliver a preliminary notice in order to retain lien rights. If the 75-day deadline is not met, or if the notice is not ever actually given, it is fatal to lien rights.
Whether the fact that a property owner didn't intend for a contractor to hire subs, or whether any unfinished work limits the availability of mechanics lien protection is a complex question, although the general rule is that construction participants are entitled to mechanics lien protection to for the value of the labor they performed or materials they furnished to a project.
But, to the extent preliminary notice is required but not delivered (or not delivered timely), any subsequent lien is likely invalid and unenforceable.
Are there legal implications for a materials supplier if they submit a Mechanic's Lien without having forwarded the Prelim. This is for a residential job.
Good question, and I'm sorry to hear you're having payment trouble on this job. Everyone deserves to be paid what they've earned. First, it's worth exploring whether notice was required to begin with. In Oklahoma, on residential projects, preliminary notice is only required when the residential property is actually occupied by the owner of the property. So, for properties where the owner does not reside - such as rental properties, or a condominium or apartment where the owner does not reside - preliminary notice won't be necessary. Moving on, where notice is required, there's a slight chance that a different document sent (such as a Notice of Intent to Lien) might actually fulfill the Oklahoma preliminary notice requirements. Based on section 142.6 of the Oklahoma lien statute, in order for a notice to satisfy the content requirements of an Oklahoma preliminary notice, the following information must be included: "(a) a statement that the notice is a pre-lien notice; (b) the complete name, address, and telephone number of the claimant, or the claimant’s representative; (c) the date of supply of material, services, labor, or equipment; (d) a description of the material, services, labor, or equipment; (e) the name and last-known address of the person who requested that the claimant provide the material, services, labor, or equipment; (f) the address, legal description, or location of the property to which the material, services, labor, or equipment has been supplied; (g) a statement of the dollar amount of the material, services, labor, or equipment furnished or to be furnished, and; (h)the signature of the claimant, or the claimant’s representative." Thus, depending on the actual information on the face of the documentation sent, a document that wasn't technically intended to be an Oklahoma preliminary notice could be effectively fulfilling the Oklahoma preliminary notice requirements. Down to brass tacks, in the event that the notice requirement was not fulfilled and a lien claimant still decides to file their lien claim - such an issue could certainly cause a filed mechanics lien to be deemed invalid and unenforceable. At the same time, though, where a debt is actually owed and the claim is filed in a timely manner, typically, a lien claim that is flawed only due to technical requirements won't rise to the level of a fraudulent lien</strong>. Most states agree that there's a difference between a fraudulent lien and honest mistakes - so filing an invalid lien won't automatically result in serious damages or liability. Of course, there's always a chance that where a claimant knows their lien won't be valid and proceeds with it anyway that the lien claim could cause problems. But, practically speaking, even where a lien claim won't be enforceable, a claimant will often have the ability to release their filed lien before serious liability is incurred as a result of the filing. Naturally, for full clarity on the potential fallout of a lien claim, plus for legal review of a potential claim, consulting a construction attorney versed in Oklahoma lien law would be helpful. They'll be able to review the relevant circumstances and documentation and advise on how best to proceed.
Can a general contractor in the state of Oklahoma put in a contract that a subcontractor has no right to lien a job or pre lien a job
That's a good question. First, it's worth noting that the Oklahoma mechanics lien statute does not explicitly address lien waivers given prior to work performed. So, unlike a number of states, lien waivers exchanged prior to work performed are not explicitly disallowed. However, as a general rule, courts typically disfavor the waiving of lien rights prior to the performance of work - especially when not granted for consideration. Thus, in most states, in order for a "no lien" clause to be effective, it must be clear and unequivocal. Hiding such a clause in fine print and using broad language would likely not be considered "clear and unequivocal". However, at the same time, it's hard to predict how a court would view the issue, and attempting to predict how a court may turn is typically not a good idea. Of course - that all relates to whether a lien itself is prohibited. If a contract merely prohibits lien claims and not any other sort of notice, it would be hard to see how sending preliminary notice would be in breach of a provision limiting the ability to simply file a lien. Sure, preliminary notice might be a prerequisite to filing an Oklahoma lien (depending on the project and role of the claimant), but a notice is just that - a notice. Preliminary notice is sent for all sorts of reasons - to improve payment chain visibility, to establish relationships and good communication, and, of course, to preserve the right to lien. But a notice, in and of itself, does not encumber the property like a lien. Rather, it's more like a letter that exchanges information while also attempting to preserve the eventual right to lien.
Oklahoma has a fairly traditional preliminary notice scheme, with a few wrinkles. While preliminary notice is generally required in Oklahoma for parties there than those who contract directly with the property owner, there are some situations in which the requirement may not be obvious.
1) the property includes an owner occupied dwelling; or 2) the project is non-residential and the claimant’s aggregate claim is greater than $10,000
If one of these two circumstances applies, the participant is required to give preliminary notice to the general contractor and the property owner. It is not specifically clear if general contractors or others contracting directly with the property owner are required to give the property owner preliminary notice on an owner-occupied project. But, as with other projects, providing preliminary notice is a good idea even when not required, so it may be worthwhile for direct contractors to give notice when working on or supplying materials an owner-occupied residence out of an abundance of caution.
The specificity of the rules above means that there is a peculiar aspect of Oklahoma’s preliminary notice requirement that residential projects that are not “owner-occupied” do not require preliminary notice – even if the claim amount exceeds the $10,000 floor that otherwise applies to commercial projects.
Oklahoma defines a residential project (distinct from an owner-occupied residential project), and accordingly, a project to which the preliminary notice requirements do not apply, as a single or multi-family residence of four or fewer units, none of which are occupied by an owner. It is unclear from the statute, however, whether “occupied” means that the property is the full-time residence (or domicile) of the owner, or just that it is the owner who uses the property, such that second, or other vacation homes would count. However, given that courts have decided that an owner who resided in a residence when it was damaged and only left temporarily so that it could be repaired, is considered to be occupying the property and deserving of notice, it seems like a party must be “residing in” a residence for it to count as owner-occupied. Mel Stevenson & Associates, Inc. v. Giles, 103 P.3d 631 (Okla.Civ.App. Div. 2) (2004)
There is one other very intriguing aspect of Oklahoma’s preliminary notice requirements, however, that does not really have much of an analogue in other states. If the project participant gives the general contractor a written request, delivered by certified mail, return receipt requested (or any other way sufficient for delivery of preliminary notice), asking for the name and last known address of the property owner, the contractor must respond with that information within 5 days of receiving the request. If the contractor fails to respond, the project participant making the request is not required to provide the owner a preliminary notice.
Before you get started, it’s a good idea to read the guide to preliminary notices in Oklahoma. The guide walks you through the entire form, including which information you need to include, the deadlines for submitting a notice, and the rules for proper service of the notice.
Oklahoma is home to two different kinds of preliminary notices: Notices to owner and pre-lien notices. You must send an Oklahoma NTO on owner-occupied residential projects, and pre-lien notices must be sent before you file a mechanics lien for a claim of $10,000 or more.
Oklahoma lien law outlines specific guidelines for the language and information that must be used and included in a preliminary notice. Download the blank preliminary notice form for Oklahoma here. Levelset’s forms were written by construction attorneys to meet Oklahoma’s requirements, making this part easy for you to get right.
Fill the form out
Be careful! Accuracy is important.
Take extra care when filling out your Oklahoma preliminary notice. That’s because making a mistake when preparing the form could prevent you from filing a mechanics lien down the line if you go unpaid.
Include all the required information, and ensure the information you include is 100% correct and accurate.
Deliver your notice
The last step is to deliver your notice. Oklahoma is pretty lax when it comes to delivery rules, and your notice should be sent to the property owner or GC by personal service, certified mail return receipt requested, or even via email.
How to send a Preliminary Notice with Levelset
Select Preliminary Notice document.
Provide basic job information.
Levelset sends the document for you. Postage included!