Preliminary notice statutes across the United States are written similar to California’s statute, which requires all parties who did not contract with the property owner to deliver a preliminary notice within 20 days from first furnishing materials or labor to the project. This begs the question: Can you send preliminary notice before you begin furnishing, or would that be a premature notice?
The answer here is yes, it’s fine to send preliminary notice early in California. The question has been answered in California in a number of cases, but I think the best explanation was published by the 4th District California Appeals Court in Brown Company v. Appellate Department, when the court explained as follows:
“A preliminary notice to establish a claim of lien (CC § 3097) that was sent by a supplier of concrete before the concrete was delivered to the jobsite was not premature. The statute does not specify an initial date for serving the preliminary notice nor does it specify a date before which notice may not be given; it merely provides a deadline after which a preliminary notice may not be served.
“Moreover, the purpose of the preliminary notice requirement is to notify the owner, contractor, and lender of potential mechanic’s lien claims. Allowing the notice to be given before work begins is consistent with the statutory purpose of giving notice, facilitates the constitutionally guaranteed right to claim for work or materials furnished, and avoids the absurd consequences that would result from a contrary interpretation. In addition, the word “claimant,” as used in § 3097, was intended to include all potential lien claimants.”
I’ve been asked this question frequently by material suppliers and subcontractors who contract for work months or even years before performing. In these circumstances they wonder if they can send the preliminary notice at the time of contracting, or if they must wait until they begin furnishing materials or labor and then try to fit it within a small 20 day window.
Based on prior California case law, it is fine – even a good idea – to send preliminary notice early in California. In fact, it can’t be sent too early.