Remote Contractor: Notice of Non-Payment:
The amount owed as of the date of the notice:
It should also include: Change Orders (Not yet approved by RC, because RC does not want to pay them)?
1 reply
Feb 11, 2019
Thanks for your question, I'm sorry to hear you're having trouble getting paid.
Tennessee notices of nonpayment are required to be provided by "every remote contractor with respect to an improvement, except one-family, two-family, three-family and four-family residential units," and must be served "within ninety (90) days of the last day of each month" in which labor or material was furnished for which the remote contractor remains unpaid. Note that this means that if work was performed but not paid in multiple months, multiple notices are required.
The contents of the notice of nonpayment are set forth by Tennessee statute § 66-11-145. This statute requires that the notice contain:
(1) The name of the remote contractor and the address to which the owner and the prime contractor in contractual relation with the remote contractor may send communications to the remote contractor;
(2) A general description of the work, labor, materials, services, equipment, or machinery provided; (3) The amount owed as of the date of the notice;
(4) A statement of the last date the claimant performed work and/or provided labor or materials, services, equipment, or machinery in connection with the improvements; and
(5) A description sufficient to identify the real property against which a lien may be claimed. [emphasis added]
The form of the notice itself is also provided by this section, and provides the following text: "The amount presently due and owing is $__________."
While there may be some interpretation as to whether work done pursuant to a change order that has has not yet been accepted is actually "owed" or "presently due" the notice is specifically intended to inform the property owner (and GC) of the work, and it's value, "for which the remote contractor intends to claim a lien."
If the remote contractor believes the amount is owed for the work, and intends to claim a lien on that amount if unpaid, it can inform the owner/GC through its inclusion on the notice of nonpayment. The owner/GC will not be aware of the intent to lien for any amount not included on the notice of nonpayment, and later claiming a lien for such amounts may not be allowed.