The Importance of Proper Service of the Preliminary Notice

Overnight Delivery, Registered Mail, Certified Mail! Oh My!

Contractors, subcontractors, material suppliers & laborers throughout the U.S. & Canada understand the Preliminary Notice is often the foundation for securing Mechanic’s Lien & Bond Claim rights.

Mechanic’s Lien & Bond Claim statutes are quite particular when it comes to preserving your rights. The various deadlines, parties to be served, document wording & even font size can vary by statute.

However, there is one fundamental step that if overlooked, could render your mechanic’s lien or bond claim unenforceable: proper service of the preliminary notice.

Let’s take a quick look at a case that came before the California Court of Appeals.

In IGA Aluminum Products, Inc. V. Manufacturers Bank, 130 Cal.App.3d 699, 181 Cal. Rptr. 859, IGA Aluminum furnished materials & labor to Welch Construction Company.  In an effort to preserve its mechanic’s lien rights, IGA sent Welch a preliminary 20-day notice, as required under California’s Civil Code section 3097.

However, IGA sent the preliminary notice via first class mail.  Civil Code section 3097, subdivision (f), required the preliminary notice be delivered by personal service, certified or registered mail.

The court had to determine whether or not the notice requirement of section 3097 had been met when written notice was delivered by first class mail.  The court found the substantial compliance doctrine to be inapplicable in the case.

It reasoned that when the statutory language is clear, there is no room for construction of the statute.  Section 3097 unambiguously required notice be delivered in one of these ways: by personal service or by registered or certified mail.

Accordingly, under the plain language of the statute, IGA’s preliminary notice was fatally defective.

If IGA had served their preliminary notice as statute dictated, it is quite possible they would have been afforded the opportunity to enforce their mechanic’s lien.

Don’t get caught in technicalities – closely follow the statutorily required methods of service in each state where notices are required.

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