Photo: The photo above is the Stanislaus County Recorder’s Office at 1021 I Street, Modesto, CA 95354.
This post is the first in a series that I’ll be writing on California Mechanics Liens. I’ve dealt with mechanics liens quite a bit in the course of the last year or so in dealing with my regular cases and figured it would be good for at least a few posts. If you like this topic, please do leave me a comment below.
Instead of addressing mechanics liens based on complexity (e.g. start with simple stuff then build in to more complex questions), I’m going to start this series by addressing the situations that I personally encounter the most often — if you’re someone employed in the construction trades (e.g. carpenter, roofer, etc) and you’ve worked on a project and are now having trouble getting paid, what do you do?
When faced with a situation like that, the big thing I want to find out about is the Preliminary Notice and that’s the topic of this post. To keep things simple, I’ll describe briefly what a Preliminary Notice is, but I’ll focus mainly on what a Preliminary Notice in California is required to contain from the perspective of someone employed in the construction trades who should have been paid, but has not been. In future posts, I’ll also go over the intricacies of who has to provide a Preliminary Notice, who has to receive one, how it has to served, etc.
What is a Preliminary Notice?
A bit of background first: The good news is that California law is very friendly towards those in the construction trades in terms of making sure they get paid for the work they’ve performed. California law is so friendly in this regard that this is explicitly in the California Constitution. Article 14, section 3 of the California Constitution says:
“Mechanics, persons furnishing materials, artisans, and laborers of every class, shall have a lien upon the property upon which they have bestowed labor or furnished material for the value of such labor done and material furnished; and the Legislature shall provide, by law, for the speedy and efficient enforcement of such liens.”
The bad news, however, is that the law the California Legislature has provided to help those in the construction trades get paid can be extremely confusing. You need to follow the rules and do all the steps when you’re supposed to. Otherwise, you’re likely out of luck, regardless of what the California Constitution says.
That brings us to the Preliminary Notice. A Preliminary Notice — sometimes also called a “20-Day Notice” — is a document that you (i.e. the construction tradesperson who hasn’t been paid) have to fill out and serve in order to establish the mechanics lien mentioned in the California Constitution quote I wrote above. The purpose of a Preliminary Notice is “to notify the owner, original contractor and lender of potential mechanic’s lien claims.” Brown Co. v. Appellate Department, (1983) 148 Cal. App. 3d 891, 898. (Google Scholar link: here)
In other words, the Preliminary Notice is required in order to create a Mechanics Lien. If you don’t fill out the Preliminary Notice, you can’t establish a Mechanics Lien later. In my experience, it’s a good habit to get in to to simply fill out and serve the Preliminary Notice as a matter of routine. In other words, do it for every job.
Is a Preliminary Notice the same thing as a 20-Day Notice?
Yes. The terms are used interchangeably.
Andy, why is it called a 20-Day Notice?
It comes from the way the statute is written. Section 8204(a) of the California Civil Code says: (emphasis added)
“A preliminary notice shall be given not later than 20 days after the claimant has first furnished work on the work of improvement. If work has been provided by a claimant who did not give a preliminary notice, that claimant shall not be precluded from giving a preliminary notice at any time thereafter. The claimant shall, however, be entitled to record a lien, give a stop payment notice, and assert a claim against a payment bond only for work performed within 20 days prior to the service of the preliminary notice, and at any time thereafter.”
That sentence I’ve bolded also is why I say it is a good habit to get in to to simply give a Preliminary Notice (aka “20-Day Notice”) whenever you begin work at a new job site. If you don’t give a Preliminary Notice within the first 20 days of working at a new job site, you can still give a Preliminary Notice, but the Notice only covers the work performed in the immediately preceding 20 days.
What has to be in a Preliminary Notice?
As I mentioned before, California law favors construction tradespeople, but that doesn’t mean the law isn’t confusing. To be effective, a Preliminary Notice has to contain certain pieces of information. The governing law here is Section 8202 and 8102 of the California Civil Code.
- A general description of the work to be performed;
- An estimate of the total price of the work provided and to be provided;
- The name and address of the owner or reputed owner.
- The name and address of the direct contractor.
- The name and address of the construction lender, if any.
- A description of the site sufficient for identification, including the street address of the site, if any. If a sufficient legal description of the site is given, the effectiveness of the notice is not affected by the fact that the street address is erroneous or is omitted
- The name, address, and relationship to the parties of the person giving the notice.
- If the person giving the notice is a claimant, (1) A general statement of the work provided, (2) The name of the person to or for whom the work is provided, and (3) A statement or estimate of the claimant’s demand, if any, after deducting all just credits and offsets.
The following has to also be included on the Preliminary Notice in bold type:
NOTICE TO PROPERTY OWNER
EVEN THOUGH YOU HAVE PAID YOUR CONTRACTOR IN FULL, if the person or firm that has given you this notice is not paid in full for labor, service, equipment, or material provided or to be provided to your construction project, a lien may be placed on your property. Foreclosure of the lien may lead to loss of all or part of your property. You may wish to protect yourself against this by (1) requiring your contractor to provide a signed release by the person or firm that has given you this notice before making payment to your contractor, or (2) any other method that is appropriate under the circumstances.
This notice is required by law to be served by the undersigned as a statement of your legal rights. This notice is not intended to reflect upon the financial condition of the contractor or the person employed by you on the construction project.
If you record a notice of cessation or completion of your construction project, you must within 10 days after recording, send a copy of the notice of completion to your contractor and the person or firm that has given you this notice. The notice must be sent by registered or certified mail. Failure to send the notice will extend the deadline to record a claim of lien. You are not required to send the notice if you are a residential homeowner of a dwelling containing four or fewer units.
Do take a look at the full text of sections 8202 and 8102. I’ve paraphrased the above so check to make sure I haven’t left something off for the sake of clarity in this post that actually affects your situation.
Where can I get a Preliminary Notice?
Now that I’ve gone over the contents of the Preliminary Notice, you’re probably where you can get one. You can have a lawyer draft one, of course, but you can find “fill-in-the-blank” Preliminary Notices online also. Two in particular that I’ll point out are:
- The blank PDF one provided by the Los Angeles County Recorder’s Office (link here), and
- The blank PDF one provided by the Sacramento County Public Law Library (link here).
I haven’t reviewed either of those documents so I don’t endorse either one. I’m merely informing you the reader that blank Preliminary Notices are available as PDFs. The Los Angeles County Recorder’s Office and the Sacramento County Public Law Library are at least reputable sources.
Anyway, I hope that helps. As always, this post is not meant to be an exhaustive or comprehensive exploration of the topic of what needs to go in to a Preliminary Notice in California. If you’re going to rely on this post, please do your own research as well. For clarity and readability-sake, I haven’t quoted every statute and case above verbatim. I also don’t know when you’re reading this post so it is entirely possible the law might have changed in the time since I wrote this post. If you do have a situation involving a Mechanics Lien or Preliminary Notice, please do find a lawyer in your area with whom you can discuss the facts of your case face-to-face.
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