Massachusetts Mechanic’s Liens: The Importance of Pre-lien Notices
In Massachusetts, it is not enough to simply go to the clerk’s office and directly record the mechanic’s lien. In most cases, a pre-lien notice is required as a condition precedent to your lien.
The most important factor to bear in mind is to serve these pre-lien notices as early as possible in the project. The Massachusetts statutes allow these pre-lien notices to be sent out at any time after your contract is signed or you start work, even though nothing is due or unpaid at that moment. By sending it out early, you get it out of the way and do not have to worry about missing later time deadlines. Many claimants delay that service and send them out near the end of a job when there has been non-payment, but this is a mistake.
The reason is because of the doctrine called the “owner’s defense”. The owner has a defense in alleging that all or part of the amount you are claiming has already been paid to the general contractor or subcontractor. This means that if you are a subcontractor, the owner can defeat your lien by proving that before receipt of the notice, payment had already been made to the general. In fact, the owner can say nothing is owed under your lien because full payment has been made to the general. This means that if the general has not paid you, you have to suffer the consequences.
The rationale is to prevent the owner having to pay twice for the same services.
It is different if your notice is received at time in which monies are still owed the general. The owner can then withhold those monies and make sure you are paid. This can then be followed up with either joint checks or partial and final lien waivers that protect your interest.
The same rules apply to sub-subcontractors and lower-tiered subcontractors for such a Massachusetts mechanic’s lien. They can be limited to the amount of money the general owes the first tier subcontractor unless you file your notice early.
For more information, reference is made to the Massachusetts mechanic’s lien separate page on National Lien Law.