We provided materials for one day in April, and we filed a lien in July for that unpaid equipment and supplies. If the notice of non-payment wasn't due until July 30, was it still required before filing the lien?
1 reply
Sep 25, 2020
The necessity of providing certain notices depends on the state in which the project was located. As not many states identify required notices as a notice of non-payment, especially one due 3 months from the furnishing of labor or material, it seems as if the notice at issue is a Tennessee notice of nonpayment.
In Tennessee, § 66-11-145 states, in part, that: "Every remote contractor with respect to an improvement, except one-family, two-family, three-family and four-family residential units, shall serve, within ninety (90) days of the last day of each month within which work or labor was provided or materials, services, equipment, or machinery furnished and for which the remote contractor intends to claim a lien under this chapter, a notice of nonpayment . . . if its account is, in fact, unpaid."
The requirement is further solidified in paragraph (b) of the same statutory subsection, which makes clear "[a] remote contractor who fails to provide the notice of nonpayment in compliance with this section shall have no right to claim a lien under this chapter" [other than with respect to retainage].
Accordingly, the statute describes the notice of nonpayment as a specifically required document that must be provided for a remote contractor to retain the ability to file a valid and enforceable lien. Whether or not the final deadline has passed, the notice is required to be provided prior to a remote claimant filing a lien.