Editor’s Note: Originally published in 2012, this article was completely updated in 2018.
Preliminary notices are an important of the mechanics lien process. The industry best practice is to send preliminary notice on every project possible — that’s the advice that we give to our customers here at zlien, and it’s the same advice that we give to everyone in the industry.
However, sometimes mistakes happen. Someone forgets to send a notice on a certain project, or someone decides not to send a notice for whatever reason, and then a payment issue crops up further on down the line.
And that begs the question: can you still file a mechanics lien on a project if you did not send a preliminary notice? Please read on for the answer.
Preliminary Notice – Quick Facts
Preliminary notices are available in all 50 states, and are required in almost 40 states
Different states have different names for preliminary notices
Sending preliminary notice helps companies get paid faster
The more often preliminary notices are sent, the less often mechanics liens have to be filed
If You Were Required to Send Notice and Didn’t, You’re Left With Little to No Mechanics Lien Rights.
So, let’s say you were required to send preliminary notice and you didn’t send it. What now?
Unfortunately, you’re probably dead in the water with your mechanics lien rights from a legal perspective.
If you were required to send a preliminary notice but didn’t, and then file a mechanics lien anyway, the prime contractor or property owner may challenge the claim in court. At that point, if you were smart, you’d remove the mechanics lien voluntarily to avoid an adverse judgment (which would almost certain occur).
To prevent this from happening, please refer to the 1st bullet point above and follow the link to see which states require preliminary notices — chances are, you probably already work in one of those states, so don’t take any chances — always send a notice!
Notice Exceptions Do Exist, But They’re Very Limited
Almost every state has exceptions to the preliminary notice requirements, but the circumstances are also almost always quite limited. For example, the state of Florida has some limited exceptions to its Notice to Owner requirements.
You can visit the zlien Construction Legal Center (CLC) to ask about preliminary notice exceptions on a state by state basis. The CLC is a free service we provide that is staffed by fully licensed construction attorneys. Follow the link below to ask your question
If Notice Is Not Required, Then You’re Okay
There’s only a few states where this is true, and if the project you’re working on is located in one of these states, then you can file a lien without having to send a notice first. However, we still recommend that you send a notice, even if you’re in a state where notice is not required. That’s because there are many more benefits to sending a notice other than just securing your lien rights.