If you ask a construction attorney whether you should wait (or not) to send a 20 day preliminary notice in Arizona, the answer will be a resounding “No, never wait.” But why? Is it the right response? Is there ever a reason to wait?
20 Days Goes by Fast and You Don’t Want to Argue About Timing
One reason why everyone answered that you should never wait to send a preliminary notice in Arizona is that the time period to send these documents is very, very fast. Twenty days. Twenty days goes by quick. And since weekends, holidays and other distractions count, you may actually be surprised at how quickly 20 days passes from when you start a project.
This is especially an issue with the recent changes to the USPS delivery and pickup schedules, as the preliminary notice deadline will not wait for the USPS.
Not only does the time go by fast, but the last thing you want to do is get engaged in an argument about whether your preliminary notice was delivered on time. If the final delivery date is close to the 20 days, you can expect argument. Argument equals litigation costs and risk of loss, regardless of whether you are right or wrong.
Avoid this by sending your notice immediately. There is no harm. At all.
Should You Delay Sending Preliminary Notice If You Expect Contract Conditions To Change?
This was the circumstance faced by the questioning subcontractor in Arizona. They expected a change order or contract change within a short period of time that would increase their contract amount by 40%. Since they are in Arizona and Arizona has the “20% Rule” for preliminary notices, the questioning party wondered whether it would just be worth it to wait for the contract to be changed to send a single preliminary notice for the entire thing.
The 20% Rule in Arizona is applicable, and is unique to Arizona. No other state has anything like this – even California, whom after the Arizona legislature modeled its lien laws. The rule states that if you estimate your contract total to be one amount and the amount eventually exceeds that figure by 20% or more, you’ll need to send a supplemental notice for the additional amounts.
Send a Preliminary Notice
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Nevertheless, the fact that you may need to later send a supplemental or amended notice is no reason to delay sending your original notice.
The amended notice will not travel back in time to attach to the original furnishing you made. You must send your preliminary notice immediately.
Wait Until the Last Minute to Avoid Customer Getting Upset?
The final reason why a company may postpone sending their preliminary notice is a concern that sending this notice will upset their customer. This should not be a concern.
Sending a preliminary notice will not scare or upset your customer. These notices are commonplace, and they are mandated by law. Plus, the period of time you’ll be waiting is pretty short, and it’s not likely the waiting is going to make any difference.
