Sending a South Dakota 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 South Dakota.
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South Dakota preliminary notice requirements for:
General contractors are not required to send a preliminary notice on private projects.
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.
If the GC filed a notice of commencement, subcontractors and suppliers must send a preliminary notice on private projects.
Notice is due within 60 days
Notice is sent to GC and owner
Notice cannot be sent late
Subcontractors and suppliers are not required to send 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.
South Dakota Preliminary Notice Frequently Asked Questions
If you're working on jobs in South Dakota, it's important that you understand the potential requirements and rules surrounding preliminary notices. Even though notices are not specifically required in all cases, they can be if certain actions are taken by other parties If you're receiving prelims, it's important to know what you're looking at and know what to do in followup. Since prelims are subject to a lot of complex rules and requirements, this can all be difficult and tedious for all parties. These are some frequently asked questions (and answers) about the South Carolina preliminary notice process.
Do I Need to Send a South Dakota Preliminary Notice?
It depends. General contractors may file a Notice of Project Commencement to help protect themselves from mechanics liens of sub-subcontractors and suppliers to subcontractors. The Notice of Project Commencement must be filed within 30 days of the commencement of work, and a location notice must be posted on the jobsite indicating that Notice of Commencement has been filed with the Register of Deeds.
If the general contractor has filed a Notice of Project Commencement and posted the location notice on the jobsite, no sub-subcontractor or supplier to a subcontractor has lien rights unless he gives Notice of Furnishing Labor or Materials within 60 days of last furnishing labor and or materials to the project. This notice is only required if the general contractor filed a Notice of Project Commencement and posted the location notice on the jobsite, and is only required of sub-subcontractors and suppliers to subcontractors.
When do I Need to Send a South Dakota Preliminary Notice?
In order to have effect, the Notice of Commencement (if elected to be filed by the general contractor) must be filed with the Register of Deeds within 30 days from the commencement of the project. The Location Notice must also be posted on the jobsite, and although there is no specific time requirement for posting the location notice on the jobsite, it is advisable to post it as soon as possible after the Notice of Commencement is recorded as the notice is ineffective until the location notice is posted.
If required, the Notice of Furnishing Labor or Materials must be given no later than 60 days after the last date on which the sub-subcontractor or supplier to a subcontractor furnished labor and/or materials to the project.
What if I Send the South Dakota Preliminary Notice Late?
The Notice of Commencement is a voluntary filing. If it is filed after the 30-day deadline, the result is that sub-subcontractors and suppliers to subcontractors do not need to file Notices of Furnishing Labor or Materials in order to preserve their lien rights.
If a Notice of Furnishing is required, any sub-subcontractor or supplier to subcontractor who fails to provide the notice within the mandated 60-day period no longer has lien rights.
A Property Owner may serve an “Owner’s Demand for Lien Account” to any potential lien holders, requesting the lien holder to furnish the owner with an itemized and verified account of any lien claim. The owner must make this request within 15 days after contract completion. Any potential lien holder who receives this demand may not commence an action to enforce a mechanics lien until 10 days after furnishing the demanded statement.
Do I Need to Send a South Dakota Preliminary Notice?
No. South Dakota does not require that preliminary notice be given in order to preserve rights to make a claim on the bond. Note, though, that in order to preserve rights to make a claim on the funds still due to the contractor, notice must be given within 20 days of the last delivery of labor and/or materials to the project.
To Whom Must the South Dakota Preliminary Notice be Given?
People are asking South Dakota construction attorneys:
can I file a lien
You should consider preparing a letter to mail by certified mail, return receipt requested, to the contractor to set out the facts and to demand the relief that you want. Attach your invoice for what you are owed. Make sure that your letter is professional and business like as it may be evidence later. You should provide the owner and contractor with a certified mail notice of non-payment with a request that the owner trap funds, and with a request that the owner withhold retainage from the contractor. Retain a construction attorney to determine whether or not you have mechanic's lien rights. Good luck.
How many NTO's do I have to send? Does first furnishing account for work done before setting foot on the jobsite?
If in Florida, you'll want to send one for each property because each owner needs to know you are working on their property if you ever want to lien. If the product is considered a custom made good then arguably the 45 days begins to run with the pre-work.
Some professional services may give rise to a construction lien, but furniture leasing and house staging are not within that statutorily defined group. If you have not yet recovered your furniture you should see a lawyer about that process right away. Besides recovering the furnishings it seems that your remedy would seem to be a lawsuit for breach of contract damages (nonpayment for services). To give yourself financial protection in any contract always include a clause that says: "The prevailing party in the enforcement of this agreement may recover its attorney's fees, including legal services to determine the amount of fees to be awarded."
South Dakota is another state in which the preliminary notice requirements of sub-tier parties are determined by the actions of the parties above.
Direct contractors, those parties that contract directly with the property owner, may file a Notice of Project Commencement to help protect themselves from mechanics liens of sub-subcontractors and suppliers to subcontractors, and to require notice to be provided by sub-tier parties. The Notice of Project Commencement must be filed within 30 days of the commencement of work, and a location notice must be posted on the jobsite indicating that Notice of Commencement has been filed with the Register of Deeds. Direct contractors, however, are not required to file a notice on commencement, and they are not required to provide any other preliminary notice in order to retain the ability to file a mechanics lien if one becomes necessary.
If the general contractor has filed a Notice of Project Commencement and posted the location notice on the jobsite, all sub-subcontractors or suppliers to a subcontractor must provide preliminary notice in order to retain lien rights. No sub-sub or supplier to sub will have lien rights when a direct contractor files and posts a notice of commencement unless the sub-tier party gives Notice of Furnishing Labor or Materials within 60 days of last furnishing labor and or materials to the project.
While this notice is only required if the general contractor filed a Notice of Project Commencement and posted the location notice on the jobsite, and is only required of sub-subcontractors and suppliers to subcontractors. It may be best practice for all subs to send preliminary notice on all projects to promote visibility, open channels for communication, and streamline payment.
How to send preliminary notice in South Dakota (DIY)
Make sure you get this part right. Making a mistake when filling your preliminary notice form out could mean you lose your right to file a South Dakota mechanics lien down the line. Include all necessary information, and make sure it’s 100% correct.
Deliver your notice
The final step is to deliver the preliminary notice. You can deliver it by hand, by registered mail, or by certified mail, return receipt requested.
Preliminary notices must be delivered to the property owner and the general contractor, and you have a 60 day window to ensure the notice is served correctly.
How to send a Preliminary Notice with Levelset
Select Preliminary Notice document.
Provide basic job information.
Levelset sends the document for you. Postage included!