Mechanics liens provide strong payment protection for parties in the construction industry. The mechanics lien is a legal tool that gives construction participants an interest in the improved property itself, and in the event of nonpayment, the lien claimant is allowed to foreclose upon and force the sale of the property to ensure s/he is paid what s/he deserves.
Mechanics liens are rare, and suits to enforce mechanics liens are even more rare, but using the process appropriately can virtually guarantee payment on every project. Because mechanics liens are so powerful, there are specific rules and requirements with which the claimant must comply in order to claim a valid lien. These requirements include form requirements, timing requirements, content requirements, and notice requirements.
The notice requirements generally include both preliminary notice (or some other pre-lien) notice, and a requirement to serve a copy of the lien itself on the property owner. Along with the the requirements that certain parties must receive notices, there are specific requirements about how those particular notices are supposed to be delivered. While this is all well and good for the majority of domestic construction projects with owners in the U.S., what happens when the project owner is located in a foreign country?
Common Notice Delivery Requirements & Applicability Outside of U.S.
There are many different ways (delivery methods) that states require preliminary notices to be sent, including personal service, certified mail, certified mail return receipt, first class mail with a certificate of mailing, and more. Some of the potentially required delivery methods, like certified mail, are not available to foreign addresses which can be a potential stumbling block to maintaining lien rights. Additionally, personally service by a sheriff, or other various internal-U.S. delivery methods may not be available if the required recipient lives outside of the country.
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According to the USPS, the available international mail services are:
- Global Express Guaranteed
- Priority Mail Express International
- Priority Mail International
- First-Class Mail International
Additionally, there are additional services available such as Registered Mail Services, Return Receipt, Delivery Confirmation, and Certificate of Mailing.
So How Should Notices be Sent Internationally?
The purpose of the notice requirements is for the benefit of the project owners by providing them with actual notice – so, in the cases in which actual receipt of the notice makes the manner of service irrelevant, the mail type again doesn’t matter, as long as it was successful.
When there is a directly analogous international mail type (for example; first-class mail with certificate of mailing and first-class mail international with certificate of mailing, or, registered mail) the choice is easy. In cases where there is not a directly analogous mail type, and there is either some dispute over the actual receipt of the notice or the actual receipt is not statutorily sufficient if sent by the incorrect mail type (rare), the lien claimant likely has to pick and choose the mail types and add-ons that most closely resemble the statutorily mandated delivery method for U.S.-based owners.
For example, if the notice is generally required to be sent certified mail return receipt requested, or any other method that provides written third-party confirmation of delivery attempt, it would seem that an international priority mail with an added service of return receipt would be sufficient.
Further, in many situations in which a property is foreign-owned, the owner will have an agent in the United States, upon which the notice may served as statutorily required. An attorney, property management company, or some other agent may be able to take the place of the owner in America for the purposes of service of preliminary notice.
While mechanics lien statutes require strict compliance in order for lien rights to be maintained, that strict compliance breaks down when it is literally impossible to comply with the mailing requirements. A foreign owner is not completely protected against mechanics lien merely by the happenstance that a particular mail type is not offered. Attempting to comply with the purpose of the notice requirements by the closest available mailing method is likely sufficient, especially when in concert with other delivery to a U.S.-based agent.
Best practice, then, for providing notices on a project with a non-U.S. owner is as follows:
- Deliver the notice by the statutorily required method to the owner’s agent or reputed owner’s agent in the U.S. (attorney, property management company, tenant, etc.)
- Deliver the notice to the property owner by the closes analogous delivery type available to send the notice to the owner at the owner’s location.
- Send the notice to the property itself, and/or post the notice on the job site.
While this can be a significant undertaking, that may be overkill, protecting lien rights is a crucial step to maintaining cash-flow and making sure you have only successful projects.
