It is a common problem that Contractors and Sub-contractors encounter when performing work on residential properties. Someone didn’t get paid and the Contractor or Subcontractor wants to file, or has filed, a lien against the real property. As an attorney who practices a great deal in the area of construction law, I get numerous phone calls from either the very upset Homeowner who has just had a Mechanic’s & Materialmen’s Lien filed against their real property, or an equally unhappy Contractor or Sub-contractor who has not been paid by the Homeowner and wants to know what to do in order to file a lien and get paid. The conversation from my end is usually the same. I ask these questions:
- Is the residence existing or new construction?
- Do the Homeowners reside at this residence, or use it as an income property?
- Do you have a written agreement for the scope of work?
- If it is a remodel of an existing residence occupied by the Homeowner, I ask: did you provide the Homeowner a Pre-Lien Notice?
This is usually where the conversation changes. The Contractor who is remodeling the existing home typically responds, “NO!” “I didn’t know I was supposed to give notice!”
Under Oklahoma law, if you are a Contractor or Sub-contractor providing labor, materials or services on an existing dwelling occupied by the Homeowner, you must provide a Pre-Lien Notice to the Homeowner prior to the first date upon which the work is to be performed. See, 42, § 142.6, see also, Northwest Roofing v. Elegance in Wood, LLC, 2012 OK CIV APP 13, 271 P.3d 800.
Importantly, Contractors and Sub-contractors should make this Pre-Lien Notice a part of any contract, and or estimate, provided to a Homeowner. This applies equally to work that is being performed for the Homeowner for a loss covered by Homeowners’ Insurance. This Pre-Lien Notice is critical to your ability to enforce your lien and recover for the work performed by you. If you have questions regarding your ability to enforce a Mechanic’s & Materialmen’s Lien, or general construction law questions, please give Hartsfield & Egbert, PLLC, a call at (405) 285-6858.