Real Estate - Construction - Lien Law Blog

Is it ever too early to send a preliminary notice?

As you may know, the deadline for sending a notice to owner (preliminary notice) varies from state to state and is also a function of the project type (private, public, federal). The State of Oregon requires that a notice to owner be post-marked within 8 business of the claimant’s first performance. Of course, it will relate back if mailed out on the 10th or 15th day, but we’ll leave that for another blog.

So, the question then becomes, what happens if a supplier sends the preliminary notice and then discovers that shipments won’t begin for 60 to 90 days? Would the delay in performance void the effect of a preliminary notice? There are two ways to approach this issue:

1. Perform an exhaustive review of the state statute and relevant case law. In particular, look to see if the statute says that the preliminary notice must be given “within” x number of days of the first performance. Based on the results, you would then decide if a second notice was required.

2. Just send an amended notice.

All things considered, just sending an amended notice is a more common sense approach, and far less expensive. The only other issue is what type of delay would trigger an amended notice. We have generally advised clients to send an amended notice if there is a delay in performance that is approaching 30 days.

Thanks again to Joanne Swyers, Corporate Credit Manager of Shelter Products, Inc. for recently bringing up the question.

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