Should I Amend My Preliminary Notice?

Should I Amend My Preliminary Notice? What Does ‘Amend’ Mean? Why Should I Amend It?

You’ve heard about the Tappan Zee Bridge project, yes? Well, this project has been going on for quite some time, various parties have come on and off the job, some of the construction has been delayed, and the number of change orders is climbing. The website dedicated to this construction, indicates it will take 14 miles of span cables, 50 miles of foundation pilings, 300 thousand cubic yards of concrete and 220 million pounds of U.S. steel! Whoa!

So what does Tappan Zee Bridge have to do with today’s post?

Construction projects, large & small, are ever-changing. Contract amounts, purchase orders, delivery dates, suppliers and laborers can change at any time (even multiple times) during a construction project. If you are securing your right to a mechanic’s lien or bond claim, by serving a preliminary notice, changes like these could mean that you need to amend your notice.

What Do You Mean ‘Amend’ My Notice?

In its simplest form, to amend means to alter or change text.

If you serve a preliminary notice, there are pieces of information within the notice that are statutorily required (the ladder of supply, your contract / claim amounts, a description of the materials you are providing etc.).

In the event the required information changes after you serve your notice, you may need to send the notice again, but with the corrected or changed information.

I’m frequently asked if an amended notice looks different than a preliminary notice. The truth is, not really — it’s the same document, with an updated party, project, dollar amount etc.

OK, Why Should I Amend My Notice?

Here are a few reasons or events that may warrant the sending of an amended notice:

• The amount of your contract increases (generally recommended when contracts increase by 20% or more)
• There are changes to the ladder of supply (e.g. the general contractor leaves the job & a new party takes over)
• You receive information regarding a lender
• Mail is returned for a party that is required to receive a copy of the notice
• You receive the Notice of Commencement that contains additional or changed information (e.g. in Georgia, statute is very particular, your notice must match the information on the Notice of Commencement)

This isn’t an exhaustive list, but does cover the most common reasons.

I Don’t Want to Take the Time or Money to Send Another Notice, It’ll Be Alright as Is

You could certainly risk it and not send an amended notice when one of the situations above presents itself. But let me remind & warn you of some things:

• Remind: our research shows that over 95% of the time, the proper drafting & service of a preliminary notice will get you paid, with no further action required. In terms of spending, this is great news, because sending a notice costs much less than filing a lien!
• Warn: if you opt out of sending the amended notice, you may jeopardize your rights to secure a mechanic’s lien. You have to weigh the risk: send an amended notice at a low cost or end up with an unpaid claim and no lien rights.

Best Practice

If the information in your initial preliminary notice becomes outdated, I would recommend sending an amended (up-to-date) notice. The costs associated with serving a notice are minimal, especially compared to the costs of a potential write-off.