Notice of Intent to Lien and Preliminary Notice: What’s The Difference?
On July 26, 2008
By Scott Wolfe Jr
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In the world of construction liens, the word “Notice” gets frequent use. The technical nature of each state’s notice requirements, however, are often misunderstood.
In general, there are 2 types of “notices” required by lien statutes: Preliminary Notice & Notice of Intent to Lien.
Preliminary Notice vs. Notice of Intent to Lien
A “Preliminary Notice” must usually be provided to the notified party before work begins on a construction project, or within a certain time frame from when materials and/or materials are first furnished.
A “Notice of Intent to Lien,” on the other hand, must usually be provided to the notified party before filing a lien, usually 7-15 days before the filing.
As you can see from these simple definitions, the requirements are extremely different. And it’s safe to assume that if your project and state requires notice, the failure to send it will result in the forfeiture of your company’s lien rights.
When Is Notice Required?
Every state’s requirements are different – and unfortunately, quite technical. Not only does the technical nature of lien statutes make them difficult to understand and interpret, but they also result in sometimes absurd consequences.
Here are some general notice trends:
- Frequent Rule #1: Almost every state has notice requirements when work is being performed on an “owner-occupied” residence. In theory, this is to protect homeowners from getting burned and having to pay contractors twice. Some states (like Pennsylvania) even prohibit liens against single family homeowner residences. If you’re working on an “owner-occupied” residence – check your state’s lien laws.
- Frequent Rule #2: The further down the chain you are, the more likely notice is required. Across the nation, there are more notice requirements for subcontractors than prime contractors, and more notice requirements for sub-subcontractors and suppliers than 1st tier subcontractors. If you’re contracting with a subcontractor – check your state’s lien laws.
Louisiana Notice Requirements
Here is some short-hand rules on Louisiana’s notice requirements for Private Works:
- General Contractor (those contracting with an owner) must file a “Notice of Contract” with the Parish recorder if the project’s contract price exceeds $25,000.00. The notice must be filed before first furnishing labor and/or materials to the project.
- When “improvement” work (i.e. not new construction) is being performed on an “owner-occupied” residence, the person contracting with the property owner must provide a “Notice of Lien Rights” to the property owner, and have the owner sign the same.
- Lessors of movables (who did not contract with the property owner) must deliver a “Notice of Lease” to the property owner and general contractor within 10 days of delivering the movables to the jobsite.
- On all residential projects, Sellers of movables (i.e. suppliers) must deliver a “Notice of Nonpayment” to the property owner at least 10 days before filing a construction lien.
- On all projects where a Notice of Contract has been filed, sellers of movables must deliver a “Notice of Nonpayment” to the property owner and the general contractor at least 10 days before filing a construction lien.
You can learn much more about Louisiana Lien Laws through the many resources provided by Wolfe Law Group, including:
Construction Lien articles published on the Wolfe Law Group Construction Law Blog.
Forms Available:
Notice of Lien Rights (for generals on owner-occupied improvement work)
Notice of NonPayment (for suppliers)
Notice of Lease (for lessors)
Washington Notice Requirements
Here is some short-hand rules on Washington’s notice requirements for private construction projects:
- You are required to send written notice of a right to claim a lien to the property owner in every circumstance except: (1) if you contract directly with the owner or owner’s agent; (2) if you are a laborer making a claim based solely on labor; or (3) if you are a subcontractor who contracted with the prime contractor.
- An exception applies if the project is “improvements to existing owner-occupied single family residences,” in which case you must send notice to the property owner unless you contracted with him/her.
- The form of the “notice” is provided for by Washington Statutes: click here.
- A lien is only valid as to services, or materials performed or delivered 60 days before the notice is delivered to the property owner (for most projects), and 10 days before the notice is delivered in new construction single-family-residence projects.
How to Send Notice
In general, notices should be sent via hand delivery or certified mail with return receipt requested. You should keep affidavits of delivery or mailing to later prove that the notices were in fact sent and received. If a notice requires signature, you’ll likely have to hand-deliver the notice.
There are legal document services that will properly prepare and send out construction lien notices. Zlien, Inc., for example, prepares and delivers construction notices for contractors across the nation, and they keep copies of the notice and proof of delivery on their servers with client access. Their website is http://www.zlien.com.
About the Author: Scott Wolfe Jr
Scott Wolfe, Jr. obtained his J.D. degree from Loyola University of New Orleans, and his B.A. from Southern Methodist University in Dallas, TX. In 2006, 2007, 2008 and 2009, Scott was recognized as a Leader in Law by CityBusiness Magazine. The son and grandson of general contractors, Scott is a construction litigator in the Pacific Northwest, and the founding member of the bi-coastal law firm, Wolfe Law Group. Scott is also the founder and CEO of Express Lien, Inc., a legal document preparation service for contractors. In 2008, City Business Magazine recognized Scott as one of its Innovators of the Year for the Express Lien concept. As an entrepreneur himself, Scott has a strong background in business and commercial transactions and laws. He focuses his practice on the legal issues facing the construction industry, and has represented clients in multi-million dollar construction disputes in litigation and alternative dispute resolution proceedings. Scott is a LEED AP.
