Long Answer: We recently had a client pose this question to us, and it’s not the first time. I also saw a thread about this question on Avvo.com, and thought the answers there weren’t terrific (except for the one I posted there, of course). So, I figured it was time for a frequently asked questions post on the subject.
[pullquote style="right" quote="dark"]So long as you have done the work, and are not paid, you have the right to file a mechanics lien as long as you have met any applicable preliminary notice and notice of intent to lien requirements.[/pullquote] Everyone knows (or should know) that you can absolutely wait too long to file a mechanics lien. Every state has different lien deadlines, and you are required to file your mechanics lien before the expiration of the designated period or the lien rights disappear. But, is there some type of deadline on the other side, preventing you from filing a mechanics lien too early?
Almost without exception the answer here is no. So long as you did the work and are owed the money, you can file a mechanics lien, and there’s no such thing as filing too early.
Here are some common issues that may delay you from filing your mechanics lien. While it may seem like these are restrictions on you filing “too early,” they are not actually this type of restriction. They are just pre-lien requirements, which means they must occur before you file the lien.
Notice of Intent To Lien
There are a handful of states that require folks to deliver a “Notice of Intent to Lien” before filing a mechanics lien. In most cases, this must be delivered 10-30 days before the mechanics lien claim is filed. If you are working in a state that requires this, your lien will be invalid if you file it before you send off this notice. In a sense, therefore, your mechanics lien is “early” if you file it before you send the notice of intent to lien. While you may call it “early,” in reality it is not early, it’s just invalid.
We’ve written a post (click to read) listing the states that require notices of intent to lien.
While only a handful of states require notices of intent to lien be filed, there are a lot of states that require preliminary notice. If you don’t send your preliminary notice, you may not have lien rights. Therefore, you cannot file a mechanics lien until the preliminary notice is delivered. If you do so, your lien is “early” because it is filed out of order…but really, again, it is not early but is instead simply invalid.
Texas is a state that requires all kinds of notices, which really operate in their own universe and are not easily classified as either “preliminary notices” or “notices of intent to lien.” However, if you are required to send a Texas notice (and most folks are), you must send this notice before you file your lien. This, in fact, is the point of the question in the Avvo thread. However, so long as you send the notice first, you’ll be okay. The notice can be sent even just hours before, or minutes before…but it’s safest to send a day or more before just to clearly demonstrate the progression.
Do The Work First!
Here is an obvious one…you can’t file a mechanics lien before you perform the work. This is a question presented to me before – someone actually wanted to file a mechanics lien at the moment they stepped on the project to protect their lien rights. No can do.
You can only file a mechanics lien once you have the right to do so, and filing beforehand would be “early.” Again, not really early, it would simply not be within your rights…but, in a sense, a filing before doing the work would be early.
Summary In One Sentence
So long as you have done the work, and are not paid, you have the right to file a mechanics lien as long as you have met any applicable preliminary notice and notice of intent to lien requirements.