Home>Levelset Community>Legal Help>We are subcontractor hired by a general contractor on a residential job in San Francisco, CA to perform finish construction labor. The last day we were on the job was 24 days ago. If we filed a preliminary notice now would we still be able to file a mechanics' lien for this project? We are now in dispute over past due invoices and trying to find leverage in lieu of not having filed a prelim. Any suggestions on either of these?

We are subcontractor hired by a general contractor on a residential job in San Francisco, CA to perform finish construction labor. The last day we were on the job was 24 days ago. If we filed a preliminary notice now would we still be able to file a mechanics' lien for this project? We are now in dispute over past due invoices and trying to find leverage in lieu of not having filed a prelim. Any suggestions on either of these?

1 reply

Mar 21, 2019

I'm sorry to hear about your payment troubles. In California, in order to preserve the right to later file a mechanic lien, a subcontractor must send preliminary notice within 20 days of first starting work on the project. This notice may be sent late, but if it is sent late, the notice will only preserve the right to lien for the 20 days prior to the sending of the notice. So, in a situation where work was completed greater than 20 days before sending notice, preliminary notice sent would likely not work to preserve anything in the way of lien rights. Keep in mind, though, that regardless of whether a claimant can or intends to file a mechanics lien, the mere warning or threat of lien will often go a long way toward compelling payment. By sending a document like a Notice of Intent to Lien to the property owner, to the prime contractor, and to any other higher-tiered project participants, a claimant can help put pressure on their customer. Even in a situation where the right to lien has not been preserved, a subcontractor's threat of lien could compel the property owner to pressure their GC to make payment. Further, notifying other subcontractors of the payment issue could also work in a similar manner to pressure the GC to make payment. If those other subs and suppliers are in fear of nonpayment, they might be more inclined to threaten or even file a lien claim, thus turning the heat up on the project's prime contractor. With all of that being said, it's also important to remember that there are payment remedies outside of the mechanics lien process that could also help to compel payment. For one, making specific legal threats (such as a claim for breach of contract, unjust enrichment, or even a claim under the California prompt payment laws) in a demand for payment might also show a general contractor that nonpayment isn't an option - especially when sent via an attorney. Further, actually taking legal action in small claims court or through traditional litigation might be an option, too. For more information on California lien claims, this resource should be valuable: California Lien & Notice FAQs.

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