Sending an Alaska preliminary notice is an effective way to speed up payment on a construction project. A preliminary notice is an informational document typically sent to the property owner near the beginning of a construction project. Here's what you need to know about the rules and requirements for sending preliminary notice in Alaska.
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General contractors are not required to send preliminary notice on private projects.
However, notice of lien rights may be served on owner & filed before providing labor or materials; this extends lien recording time and transfers the burden of proof to the owner.
General contractors are not required to submit notice on public projects.
Since GCs will not make a claim against their own bond for non-payment, they do not have bond claim rights, and have no preliminary notice requirement.
Subcontractors and suppliers are not required to send notice on private projects.
Notice of Lien Rights may be served on owner & filed before providing labor or materials; this extends lien recording time and transfers the burden of proof to the owner.
Subcontractors and suppliers aren't required to send preliminary notice on public projects.
TopicIf you're sending preliminary notices in Alaska, it's important to understand the rules and requirements in order to get the most benefit possible from sending your notice. Since prelims are subject to a lot of complex rules and requirements, this can all be difficult. These are some frequently asked questions about the notice process in Alaska.
A preliminary notice is not required to file a valid Claim of Lien in Alaska. However, a Notice of Lien Rights may be filed and served on the property owner by a potential lien claimant prior to providing labor or materials to the project. This notice makes enforcement of the lien easier and can extend the time the lien claimant has to file the lien.
According to Alaska Stat. Sec. 34.35.064, a person may give Notice of Right to Lien to the owner or owner’s agent before furnishing labor, or material to the project. This notice works to transfer the burden of proof to the owner in a foreclosure action, and entitles the person giving notice to advance notice of the owner’s filing of a Notice of Completion. Alaska law also allows for the recording of the Notice of Right to Lien rather than just “giving” the notice to the owner. The main benefit of recordation of the Notice of Right to Lien, even after labor or materials have been furnished to the project, is to assure the lien claimant of the full 120 days to record his lien if the owner records a Notice of Completion.
If a Notice of Right to Lien is not given prior to first furnishing materials or labor to the project, the lien claimant will not reap the benefits of the transfer of the burden of proof, and advance notice of the owner’s recording of a Notice of Completion. However, it may still be filed at any time up to 15 days after the owner records a Notice of Completion, and will work to assure the lien claimant the full 120 days to file his lien.
The Notice of Right to Lien must be “given” to the owner or owner’s agent. Alaska law defines “given” in this instance as either mailing by certified mail return receipt requested, or personal delivery with the recipient’s signature acknowledging receipt of the document.
No. In Alaska, notice is to be given to the property owner, or his agent. However, if notice is also given to the construction lender, if any, the lender must correct certain information if it is wrong.
The preliminary notice is considered delivered when received.
No. Alaska does not require any preliminary notice to preserve a claimant’s right to make a bond claim.
Since there is no requirement to send a preliminary notice at all, it can be sent at any time if desired.
First, filing a lien under the circumstances you present is problematic. There are strict deadlines for noticing intent and recording your lien. Sounds to me like this is an afterthought and not within 4 months of your last date of work, but perhaps I'm wrong there. In any event, if you're seeking items from two years ago, I doubt that would go well for you under a mechanic's lien theory of recovery.
Second, it doesn't sound like there was much of an arrangement between you and the owner, this was something you were doing to improve the residence you were living in.
Third, if you're broke, what good is the mechanic's lien anyway? Even if it were valid, you'd still need to take action on it to pursue it. If they've just refi'd, I imagine the property is encumbered to a not-insignificant extent. The loan already closed, so presumably they aren't going to refi again or sell very soon. If you don't have the money to pursue a wrongful eviction, foreclosure likely isn't within your current financial ability to pursue. If you aren't going to foreclose, then you still have other claims and remedies, but I'd think you'd handle most of those claims and damages within a wrongful eviction case, should you ever have the means to pursue that case.
Answered by Neil Sullenberger | PartnerMost likely your best course of action at this point would be a demand letter and potentially a breach of contract action against the GC who has not paid you. If there is a payment bond on the project your may still have time to make a claim against this bond. But otherwise, because you did not send preliminary notice, you would not have lien rights.
Answered by Peter Ryan | PartnerAlaska’s preliminary notice, called a Notice of Right to Lien, is not specifically required in a traditional sense, but it does have important tangible benefits to being sent or filed. Alaska’s preliminary notice scheme is unique in that there is one notice – the Notice of Lien Rights – but this notice has two potential “deadlines” related to two different effects, and two different methods of delivery.
The first opportunity and “deadline” for giving the notice of lien rights in Alaska is prior to work begins. When delivered to the property owner prior to the project participant’s first furnishing of labor or material to the project, the notice works to shift the burden of proof regarding the project participant’s furnishing of labor or material if an action to enforce a lien is ever required. The “burden of proof” is a legal term that specifies which party is obligated to prove some fact or allegation. In this case, if the project participant does not provide the owner with a notice of lien rights prior to first furnishing, then the claimant is required to prove that the owner was aware of their participation on the project and consented to it. If the notice is given, the obligation is shifted to the owner to prove that they did not have knowledge of and consent to the participants work on the project.
The second opportunity and “deadline” for giving the notice of lien rights in Alaska is “at any time after the claimant enters into a contract for or first furnishes labor, material, service, or equipment in connection with a project.” This particular notice of lien rights is no different from the pre-work notice of lien rights in form or content, but is different in effect and delivery. This “second” notice of lien rights must be recorded in the recorder’s office in order to be effective. If recorded, the notice of right to lien can extend the time in which a project participant may file a valid and enforceable lien if a notice of completion is filed on the project.
Anyone — the prime, the subcontractor or the supplier — may deliver either the “first” or “second” notice of lien rights. Since there would likely be little argument that the property owner didn’t know of consent to the project participation of a party with whom they directly contracted, it is unlikely that the “first” notice of lien rights would have much practical impact for a direct contractor, but it doesn’t hurt to always provide notice.
