Required Notice

A copy of the affidavit claiming a mechanic’s lien on homestead property must be served on the owner or reputed owner, by certified or registered mail, at the owner’s last business or residence address. Failure to comply substantially with the requirement of sending notice to the owner may prevent the claimant from foreclosing the lien.

To provide notice to the owner, a copy of the affidavit must be sent no later than the fifth day after the date the affidavit is filed with the county clerk. Although this provision was clearly drafted in contemplation that the affidavit would be filed first, and then notice would be provided to the owner within five days, the statute does not require that filing precede notice, so that notice provided before the filing of the affidavit is nevertheless valid. If the person filing the affidavit is not the original contractor, a copy of the affidavit must also be sent to the original contractor at the contractor’s last known business or residence address.

Notice to the owner of the property at the time the affidavit is served is proper even if the work was done or the materials were delivered during the tenure of a prior owner. Prospective holders of mechanic’s liens are not required to search property records to determine actual ownership at any time. Instead, the contractor (or subcontractor) is entitled to rely on representations of ownership made by the parties with whom the contractor deals. Nevertheless, a subcontractor who has not been misled by any representations may not ignore indications in the correspondence and contracts concerning actual ownership, fail to check property records, and then fail to notify the true owner by claiming ignorance of the owner’s identity.

If a contractor files an affidavit after a change in ownership and gives notice to the prior owner for whom the work was done, a question arises as to whether the new owner has “notice”of the claim. A purchaser who knows that improvements have been made on a single piece of property has constructive notice of the worker’s right to assert a mechanic’s lien.

Deposit of the notice, in the form required, in the United States mail constitutes the required notice.

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