Home>Levelset Community>Legal Help>Can a subcontractor file a lien in AZ if he hasn't filed a 20-day preliminary notice? Can he file a lien if he has no written contract? Can he file a lien if the single family residence is occupied, and he has no contract with the homeowner?l

Can a subcontractor file a lien in AZ if he hasn't filed a 20-day preliminary notice? Can he file a lien if he has no written contract? Can he file a lien if the single family residence is occupied, and he has no contract with the homeowner?l

ArizonaRight to Lien

I'm a general contractor. A subcontractor agreed to install driveway pavers, that I supplied, for a set price, that was about the same as other bids. He sent me an invoice for almost twice what was agreed to. Now he threatens to file a lien. I don't think he can, based on what I understand about AZ lien laws, especially since I paid him with a check marked "in full of account", which he cashed, for slightly more than the agreed-on amount.

2 replies

Aug 10, 2018

There are a lot to unpack in that question. The short answer, though, on owner-occupied residential projects, only parties with a direct contract with the property owner can claim a valid and enforceable lien. Additionally, Arizona requires a 20-day preliminary notice to be given prior to filing a lien claim (more on that in a second).

When applicable, the 20-day preliminary notice may be given late (after the 20th day from first furnishing labor or materials to the project), but is only effective as to amounts furnished beginning 20 days prior to the date on which the notice was given. Additionally, the preliminary notice must contain an estimate of the total amount to be furnished, and if the amount increases by more than 20% of the estimate an additional notice must be given.

A written contract is not a specific requirement in order to file a lien in Arizona.

Whether cashing/depositing a "paid-in-full" check constitutes acceptance of that amount for the total satisfaction of the account depends on several different factors.

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Jul 12, 2019

Nate has provided you with some good information about this question, but I'd like to add some context about the "written contract" requirement. Your question asks whether a mechanics lien can be filed if a subcontractor doesn't have a written contract "with the owner." There are two angles to address with this question.

First -- The Requirement for a Written Agreement Generally
Nate's answer touches on this. This is an extremely common question -- the question of whether a written agreement is required to have mechanics lien rights. The answer depends on the state. As (correctly) explored in, Can you file a lien without a written contract?, and as stated by Nate, Arizona does not require a written contract to file a lien. As such, someone can file a lien with a verbal agreement to do work.

Second -- However -- There is the question of whether a lien can be filed by someone without "Privity" of contract with the property owner
It seems that the question also asks about this. It's not only inquiring about whether an agreement is in writing or not, but also whether it's possible for a subcontractor to file a mechanics lien against a property when they are not in "privity" of contract with the property owner at all!

The answer to this is YES! The subcontractor can definitely file a lien even without a contract with the owner. In Arizona, there is a requirement to meet -- the preliminary notice requirement. However, if the subcontractor sent an Arizona preliminary notice properly, then that sub can definitely file a mechanics lien, even though they didn't contract with the owner directly.

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