Short Answer: If you were required to deliver a preliminary notice, no. If you weren’t so required yes. And, if you were required, but you only very recently furnished your labor or materials, you may still have a chance.
Long Answer: Preliminary notices are very, very important to subcontractors and material suppliers all across the United States. If you’re required to send a preliminary notice, and you don’t, you likely lose your lien rights. If you want to use the powerful mechanic’s lien collections remedy, therefore, you better know and comply with the applicable preliminary notice requirements.
So, when is preliminary notice required? How must it be sent? Who must it be sent to? And is there a universal form you can use?
Ah, if only it were that simple.
Depending on the construction project’s state, and your role in the project, preliminary notice may or may not be required, and the form, sending procedures and other details will be different from state-to-state and project-to-project. If your business crosses state lines, keeping up with these requirements can be outright exhausting, if not impossible.
In the past, we published a color-coded map of the United States showing which states require preliminary notices and which do not (by “preliminary notice,” we mean the traditional notices sent by 2nd tier or lower contractors within a certain time period after first furnishing labor or materials). Check out the color-coded Map of Preliminary Notice Requirements here. You may want to consider our LienPilot software, which monitors preliminary notice requirements for you.
If you’re required to file a preliminary notice, and you don’t do it, most states consider your lien rights forfeited. If you file a lien, the property owner or prime contractor could file a lawsuit to declare your lien invalid, and in a lot of cases, collect attorneys fees and costs if they win (which can be thousands). Not to mention that the lawsuit could allege you “clouded” title improperly, and caused the property owner other damages.
Most states that require preliminary notice require it be delivered within a certain period of time (for example, in California, it must be delivered within 20 days of first furnishing labor or materials), and allow you to deliver the notice late. However, if you deliver a preliminary notice late, you’ll only be entitled to lien for services, materials or labor furnished to the project immediately before and after the notice.
It’s a best practice to just send a preliminary notice on every new contract. That way, your rights are always preserved, and if you need to file a lien to get paid, you can.
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