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Massachusetts Preliminary Notice: How the Notice of Identification Works

Massachusetts Preliminary Notice: How the Notice of Identification Works

November 26, 2019

A preliminary notice is typically a requirement for all construction professionals who are looking to protect their lien rights. It is a document that informs higher-tier parties of your participation in a project, and it also communicates to them your awareness of your legal right to recover payment by filing a mechanics lien.

In Massachusetts, not all parties are required to serve a preliminary notice. Only one pre-lien notice is required for certain construction parties: the Notice of Identification. This notice is very important for lower-tier parties who want to preserve the full protection of their lien rights.

This guide will walk you through the basic steps when serving a Massachusetts Notice of Identification, including the information required for the forms as well as the best practices that you must keep in mind.

Notice of Identification in Massachusetts

A Notice of Identification is a preliminary notice in Massachusetts that informs general contractors about your participation in a project. Most preliminary notices are addressed to property owners, but a Notice of Identification is primarily served on the general contractor.

Most large-scale projects involve multiple construction parties under different tiers which may be difficult for general contractors to keep track of. A Notice of Identification allows a general contractor to track all other lower-tier parties that are working under their subcontractors.

Parties required to serve a Massachusetts Notice of Identification

Sub-subcontractors and material suppliers to subcontractors must serve a Notice of Identification. The goal of this preliminary notice is to allow general contractors to keep tabs of the parties working under their subcontractors, so if you don’t have a direct contractual relationship with the general contractor, chances are you have to serve them the Notice of Identification.

When to serve a Massachusetts Notice of Identification

A Notice of Identification must be served within 30 days of your first day of work. The first day of work corresponds to the day when you begin furnishing labor or materials to a project.

What happens if you fail to serve a Massachusetts Notice of Identification?

Failing to serve the preliminary notice in Massachusetts will not be fatal to your lien rights – you will still have your right to file a mechanics lien, but the amount that you can recover may be limited. If you do not serve a Notice of Identification, you may only recover payment from the amount that is yet to be paid to the party that hired you.

So if you are working for a subcontractor and the general contractor owes them $10,000, your mechanics lien may only claim up to a maximum of this $10,000 balance. It does not matter that the subcontractor still owes you $20,000 – without the Notice of Identification, your mechanics lien claim can only cover the amount that is yet to be paid to your subcontractor.

How to serve a Massachusetts preliminary notice

How to serve a Massachusetts preliminary notice

1. Prepare the preliminary notice form

The Notice of Identification form requires the following information:

  • Your name as the potential lien claimant
  • The name of the general contractor
  • The name of the party that hired you
  • The location of the project property
  • The amount or estimated amount of your contract

Massachusetts lien statues prescribe you to write the notice in the following form:

Notice of Identification

Notice is hereby given to _____, as contractor, that ____, as subcontractor/vendor/design professional, has entered into a written contract with _____ to furnish labor or materials, or labor and materials, or rental equipment, appliances or tools to, or to perform professional services for a certain construction project located at (Street Address), (Town or City), Massachusetts. The amount or estimated amount of said contract is $_______. (No amount need be stated for contracts for the rental of equipment, appliances or tools).

Keep in mind that the estimated amount must be reasonable.

2. Serve the preliminary notice on the general contractor

Once your Notice of Identification form is ready, you must serve it on the general contractor within 30 days of your first day of work. There are no specific service methods prescribed by the law, so you may serve this notice via registered or certified mail with return receipt requested, or you may deliver it to the general contractor in person.

The key is to keep documented proof that you have served this notice. Keep copies of your mailing documents or ask a general contractor to sign a receipt acknowledgment form.

Best practices when serving a Massachusetts preliminary notice

1. Serve the Notice of Identification as early as possible

The preliminary notice in Massachusetts is relatively easy to prepare. The information required is basic, which you may already have at your disposal, so it is best practice to prepare this notice as early as possible and to serve it way before the 30-day deadline elapses.

2. Keep a documented proof that you have served the notice

Since serving this notice is key to having full coverage for your mechanics lien claim, you must keep a proof that you have complied with this requirement. Keep your mailing records or ask the general contractor to sign a receipt acknowledgment form, just so you have something to show if your compliance with this notice requirement is questioned.

3. Ensure the accuracy of the information included in your notice

It is quite common for construction parties to make simple mistakes in their lien-related documents. These small errors such as spelling mistakes in the name of the parties involved or in the addresses may be fatal to your lien rights, so always verify the accuracy of the information that you include in your Massachusetts preliminary notice before you serve it.

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