Hundreds of thousands of preliminary notices are sent in California in-house by companies every year, and they nearly always forget a very crucial requirement: Filling out and signing a declaration of delivery.
When A Declaration Is Required Under California’s Preliminary Notice Laws
California Civil Code §8118 requires this as a component of every single California preliminary notice when it provides that “Proof that notice was given to a person in the manner required by this part shall be made by a proof of notice declaration that states all of the following…”
I didn’t find any case law specifically on this point, but there are a lot of curiosities in this statute, and a savvy litigator could really put some pressure on a lien claimant based on this statue and how frequently it is overlooked.
First, based on the language, it is a bit ambiguous as to whether the declaration must be made upon sending every single notice, or if it’s only required if a party is required to “prove” that it was sent. There are many occasions when such proof may not be required. For example, a party may admit receipt of the preliminary notice. A lawyer could argue that based on §8118, the preliminary notice was not properly sent unless a declaration was prepared and signed upon delivery.
Second, if a party does deny receiving the notice, it would be curious if a court would allow the claimant to retroactively prepare one of these declarations. Could the court, in other words, have the person who mailed the notice fill out the declaration after-the-fact (perhaps months later) if proof was required to demonstrate compliance with the preliminary notice requirement?
One thing is for sure under the California statute, having postal records of delivery is not enough to prove notice was sent. You must have the declaration, too.
What Is A Declaration of Service?
This leads us to the inevitable question: What exactly is a declaration of service?
A California declaration of service or delivery is a very simple document. It’s simply a signed statement by the person who performed the service (i.e. the person who mailed the notice) identifying themselves, identifying when the notice was sent, identifying that it was a preliminary notice sent, identifying who it was sent to, and identifying how it was sent.
A free Declaration of Service of Preliminary Notice is made available to you to download right here on our blog. It’s not rocket science . Download here: Declaration of Service of California’s Preliminary Notice.
It’s Smart To Outsource Preliminary Notice Work
I’ve said it before, it’s a good idea to outsource your preliminary notice work. Check out this article: 4 Reasons It’s Smart To Outsource Your Preliminary Notice Work.
[pullquote style="right" quote="dark"]It’s not impossible to send preliminary notices yourself. But, at what expense? At what risk of error?[/pullquote] It’s not impossible to send preliminary notices yourself. It’s not impossible to find software – quite good software – to prepare notice forms for you so you can have your staff prepare the notices and send them. But, at what expense? At what risk of error? And, are they really going to be able to juggle all of the preliminary notice requirements, from tracking certified mail to making sure there’s a written and signed declaration with each notice?
The requirements really pile onto one another and it becomes very difficult to comply with the notice requirements on every project. Hiring a company like Zlien to manage and send your preliminary notices is a smart decision. Read about Zlien’s Preliminary Notice Services here.