California Preliminary Notice

California Preliminary NoticeUpdate:  This article updated on July 14, 2012, to conform with the new preliminary notice requirements in California.

In California, if you provide materials or labor to a construction project, you are generally allowed to lien that project in the event of non-payment. In some circumstances, however, California law requires that a claimant provide notice to certain parties to preserve its rights to lien.

This notice is commonly referred to as “Preliminary 20-day Notice,” although a law change that went into effect on July 1, 2012 changed the terminology and it is now called simply a “Preliminary Notice.”  Contrary to popular belief, the notice must be sent to the required parties as soon as or before work begins, and not simply before a lien is filed.

What is Preliminary 20-Day Notice?

California Civil Code § 8200 provides that notice “means a written notice from a claimant that is given prior to the recording of a mechanic’s lien…”

The California preliminary notice requirements are similar to the requirements of other states, and they serve to notify the property owner that the property may be liened in the event of non-payment.

A construction lien carries severe consequences to the property owner. If a property owner pays the general contractor and the contractor fails to pay its subs, the owner may be obligated to pay twice on the project through a construction lien! Most states require preliminary notice to ensure that the owner is notified of who is and who is not working on his property.

California Preliminary Notice

The Form of California’s Preliminary Notice

California statute requires that preliminary notices contain specific information. California Civil Code § 8102 provides that the notice must contain the following:

  • Name and address of the owner or reputed owner
  • Name and address of the director contractor
  • Name and address of the construction lender, if any
  • Description of the site sufficient for identification, including the street address of the site, if any
  • Name, address, and relationship to the parties of the person giving notice
  • General statement of the work provided
  • The name of the person to or for whom the work is provided

Further requirements are enumerated in a separate section of the California statutes, Civ. Code § 8202, which provides that in addition to complying with §8102′s requirements, a preliminary notice must also include all of the following:

  • A general description of the work to be provided
  • An estimate of the total price of the work to be provided
  • The following, exact statement in boldface type:

NOTICE TO PROPERTY OWNER EVEN THOUGH YOU HAVE PAID YOUR CONTRACTOR IN FULL, if the person or firm that has given you this notice is not paid in full for labor, service, equipment, or material provided or to be provided to your construction project, a lien may be placed on your property. Foreclosure of the lien may lead to loss of all or part of your property. You may wish to protect yourself against this by (1) requiring your contractor to provide a signed release by the person or firm that has given you this notice before making payment to your contractor, or (2) any other method that is appropriate under the circumstances. This notice is required by law to be served by the undersigned as a statement of your legal rights. This notice is not intended to reflect upon the financial condition of the contractor or the person employed by you on the construction project. If you record a notice of cessation or completion of your construction project, you must within 10 days after recording, send a copy of the notice of completion to your contractor and the person or firm that has given you this notice. The notice must be sent by registered or certified mail. Failure to send the notice will extend the deadline to record a claim of lien. You are not required to send the notice if you are a residential homeowner of a dwelling containing four or fewer units.

Since these requirements are set forth by statute, and lien statutes are typically strictly construed, it is important that your preliminary notice meet these requirements.

A Free Template of a California Preliminary Notice form can be downloaded here:

Free California Preliminary Notice Form for Private Projects

California Preliminary Notice          California Preliminary Notice

Free California Preliminary Notice Form for Public Projects

California Preliminary Notice          California Preliminary Notice

Who Must Provide Notice

As discussed above, not everyone is required to provide this preliminary notice. There are many circumstances when a contractor or supplier can lien a project when they have not sent preliminary notice. However, this is the minority of cases, and recent case law as well as the July 1st 2012 law change in California has made this more rare.

The key question, therefore, is clearly: Who must provide Preliminary Notice?

The new general rule of thumb in California is that Preliminary Notice is required by anyone who is not a laborer.  A laborer is defined  as someone who performs purely labor work on a project, and does not provide for materials.

Those in direct contract with the owner have reduced preliminary notice requirements, and in many cases, need not send preliminary notice.  In the case of those parties in direct contract with the property owner, preliminary notice need only be sent to the construction lender, if there is one.

Interestingly, California courts have very liberally construed the phrase “direct contract with the owner” to include other parties aside from those who actually signed the contract with the owner.

In California, any contractor or materialman is presumed to be under “direct contract” with the owner so long as the owner has actual knowledge that construction work is being performed on his property! Kim v. JF Enterprises (App 2. Dist. 1996) 50 Cal. Rptr. 2d 141, 42 Cal. App. 4th 849.  Be cautious about this precedent, however, as it came before the July 1st amendments.

Where to Send California Preliminary Notice

Assuming you are required to send Preliminary Notice, the California statutes stipulate exactly who is required to receive that notice to properly preserve a contractor or supplier’s lien rights.

The Preliminary Notice should be sent to all of the following:

  • The Owner (or reputed owner)
  • The Original Contractor (or reputed original contractor)
  • The construction lender, if any

Of course, as above-mentioned, those who contract directly with the owner need only send notice to the construction lender.

When to Send California Preliminary Notice

Perhaps the most important question about preliminary notice in California concerns when the statutes require that notice be delivered by a contractor or supplier.

In California, notice must be given not later than 20 days after the claimant has first furnished labor, services, equipment, or materials to the jobsite.

After the expiration of these 20 days, the claimant may still send notice, but it will only be effective as to the labor, services and materials supplied or provided within 20 days prior to the service of the notice (and thereafter).

Therefore, if you are required to provide preliminary notice under California statutes, it is imperative that you deliver the notice as soon as practical. Waiting until 20 days after you begin work will jeopardize your rights to lien for unpaid work.

How to Send A California Preliminary Notice

California statutes specifically provide a method for sending notice to the receiving parties.

The notice can be sent by delivering the document personally, by leaving it at the residence or place of business of the party with some person in charge, or by registered or certified first-class mail.

If the owner is out of state and the above-methods do not work, you can send the owner’s notice via certified or registered mail to the construction lender or original contractor.

It is important to keep good records of delivery, as the statutes also provide a specific method to prove the preliminary notice was delivered. In fact, the statute requires that you keep a “Proof of Notice Declaration” that states the type of notice given, the date, the place and manner of giving notice, facts showing the notice was given as required by the statute, the name and address of the person to which notice was given, and documentation showing the tracking and delivery of the same, if the notice was given by mail.  See California Civil Code § 8118.

Why You Should Use zlien To Send Your California Preliminary Notices

As you can see, properly sending a California preliminary notice requires a lot of compliance. The law takes many twists and turns, and it’s best to rely on zlien and its proprietary preliminary notice and mechanics lien compliance system to ensure your preliminary notices are sent right, all of the time.

Every time zlien sends a California preliminary notice, it performs the following:

  • Researches the property owner and lender to confirm identity
  • Prepares the form and delivers it to the required parties
  • Pays for all postage
  • Tracks mailings to ensure delivery
  • Keeps an Affidavit and Declaration of Delivery

zlien is a licensed, bonded and insured legal document preparation company in the State of California (LDA-352).  You can learn more about its Preliminary Notice Services at zlien .com

California Preliminary Notice

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  • Cindy

    I am a general contractor, if we hire a subcontracotr who uses union labor, is the labor union required to file a prelim? We just received a notice from a union that the sub wasn’t paying into the union benefits account. A prelim was sent with the letter. I’ve never seen this before. Is it standard or required? Can the union file a lien if they haven’t filed the prelim?

    • http://www.zlien.com Scott Wolfe Jr

      HI Cindy – this is a fairly rare situation, and a specific answer will depend on what state you’re in and the type of project being worked on. From a big picture perspective, however, most states do have a mechanism for labor unions to step in and file liens on behalf of laborers. Laborers are one of the most highly protected groups in mechanic lien laws across the country. State laws sometimes specifically allow for labor unions to have special protections, and in other cases, states allow laborers to “pool” their liens together and have an “agent” file one lien for the entire group. Short answer, therefore, is that this is likely allowed, and the labor union likely will be able to exert mechanic lien pressure on the project.

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  • http://constructionlawblog.com Bruce

    I have received a 20 day preliminary notice (California) if the information is wrong, say the name of the subcontractor performing the work, or the estimate is wildly off. Am I required to notify the unti that sent the lien of the defects?

    • http://www.zlien.com Scott Wolfe Jr

      Hi Bruce. In California, I don’t know of any law that requires you to notify the senders of the preliminary notice. However, just because the notice information is incorrect, doesn’t mean you can avoid all future liens. If you are the property owner and you were notified, you very well may be notified ENOUGH to protect lien rights in California. Plus, the fact that you received the notice and didn’t inform the sender of the defects may come into consideration if a judge were to ever think about this. From a personal perspective, I like it when everyone has the correct information, and everyone on the project isn’t playing a game of cat and mouse with one another. Good luck. Thanks for stopping by and for the comment. You certainly present an argument for making sure contractors, suppliers and subcontractors get their preliminary notices done right.

  • http://www.tedsllc.com Maria Corazon Barrientos

    We are a subcontractor of a subcontractor (GC – steel fabricator – us, structural detailing company). We finished the work for our client but my client filed for bankruptcy last December. This is my first experience. I filed for preliminary notice last Feb 24, 2012 via Zlien. Based on the explaination on preliminary notice, this should be filed within 20 days upon notice to proceed. We started work in 2010. What are my chances now? In my 17yrs, I never filed for preliminary notice as it is not a norm between steel fabricator & structural steel detailers.

    • http://www.zlien.com Scott Wolfe Jr

      Hi Maria – Thanks very much for stopping in and for your comment. You’re situation is all too common, as most companies start diligently sending out preliminary notices only after they are burned on payment for the first time. Unfortunately, as far as prelim notices are concerned, there’s no way to turn back the clock. The question now is whether you fall into a possible exception.

      There are 2 things you’ll want to consider here:

      1) Did you furnish any labor or materials within 20 days of when you sent actual preliminary notice. Since you sent it on or around Feb. 24th, you’ll be protected and entitled to file a lien for all work or materials you furnished after Feb. 4th, 2012. From the sound of things, however, that’s very little if any.

      2) Do you fall into some slim exception that allows you to file a lien despite the non-delivery of preliminary notice? We wrote an article about this, “Are There Exceptions to California’s Preliminary Notice Requirements.” I suggest you take a look at this article and see if this fits your situation.

      I hope this works out for you. In the future, if you would like to get into a habit of sending notice and protecting your lien rights, and avoid this situation, contact Zlien. We offer lien and notice monitoring, and delivery of all notices, starting at $27 per project, which is a small price to pay to avoid these situations. Good luck!

  • Gary

    From what I understand, the Preliminary Notice is sent to the property or building Owner. How about in the case of, for example a tenant improvement project, where the project owner is not the property owner, but rather the tenant – the Prelim is still sent to the property owner, right?

    • http://www.zlien.com/ Scott Wolfe Jr

      Gary – this is a great question. Thank you for visiting the site and making this comment.

      Landlord / Tenant issues take a complicated issue (lien and notice requirements) and makes it a ton more complicated.

      We’ve written two articles about this in the past on the blog:

      Must California Preliminary Notice Be Sent To The Tenant?

      And

      California Prelim Notice Requirements When Work Commissioned By Tenant.

      You’ll find the answers in those articles. Short answer: Yes, you must send to the tenant AND the owner.

      • Gary

        Scott, thank you for your quick response. I work for a G.C. in SF with a good reputation. We always pay up, but nevertheless, I’ve always been providing both info as applicable: property owner’s and project owner’s, then I leave it up to our subs to whom to send the prelims to.

  • Jeff

    Thanks for the info. I had a verbal contract with the manager/ part owner of a business. I installed a water system for him. There is no dispute about the quality of my work they just aren’t paying the bill. I’m a licensed california contractor but I didn’t have a signed contract or do a 20 day notice. Do you think I can still do a mechanics lien? Thanks!

    • http://www.zlien.com/ Scott Wolfe Jr

      Hi Jeff – Thank you for this comment and for your question. I will give you some general information here, but if you are unsure of what to do or still have questions, you may want to seek the advice of an attorney.

      You have two stated issues: (i) Can you file a lien without a written contract; and (ii) Can you file a lien without a 20 day notice.

      (i) A written contract is not required to get lien rights in California, or in most states. We wrote about this here: http://www.zlien.com/blog/mechanic-lien-myth-you-can-file-a-mechanics-lien-without-a-written-contract/

      (ii) While 20 day preliminary notice is required on most California projects, it is not required when you do business directly with the property owner, unless there is a “construction lender” paying for the work. With such a small job there is likely no lender, and accordingly, there is likely no preliminary notice requirement. This is explained here: http://www.zlien.com/blog/california-preliminary-notice-general-contractors-requirement/

      • Jeff

        Thanks! Sounds like I can bring up the lien without it being a completely empty threat.

  • http://www.zlien.com/ Scott Wolfe Jr

    Karl – Thank you for reading and this comment. You are right in the middle of a very common situation, which involves disputes about the scope of work, change orders, or change directives.

    In many states, including California, how this will be handled may come down to your contract and what is says about doing extra work. However, outside the contract, you’ll likely have two recovery options available to you:

    1) Unjust enrichment: if you can’t get it paid under the contract, you can try your hand in these sticky legal arguments; or MORE SO

    2) Lien laws. California lets you file a mechanics lien for the “value of” your work. This is helpful in circumstances like this when the parties may dispute the value of the work on a contractual basis.

    The biggest trouble here is going to be that the amount of the debt (4k) is so low it will not justify a strong legal campaign to collect it. With that said, utilizing a mechanics lien will be an inexpensive way to stake your claim and likely get paid. Good luck.

  • http://www.zlien.com/ Scott Wolfe Jr

    Hi Veronica – Your need here is very interesting, and I very clearly understand your pain point. I don’t think there are many standards here, but I am very interested in your pain point here and problem. Would you be interested in a telephone call to discuss? If so, please email me at scott@zlien.com.

  • JL

    Can material suppliers file a 20 Day Preliminary Notice on Government/Federal buildings?

    • http://www.zlien.com/ Scott Wolfe Jr

      You are asking the wrong question. The right question is: “Are suppliers required to deliver a preliminary notice on federal projects, and if so, when is it due?”

      California’s 20 day notice applies to private projects. A separate 20-day notice requirement is also present in California for state projects. Two separate laws, and two separate requirements.

      Federal projects are controlled by federal law, which does not require any preliminary notice. Many suppliers send preliminary notices anyway because it may speed up payment and helps keep everyone on the project informed about who is supplying materials. But, on federal projects, no notice is ever required – anywhere.