The unfortunate truth is that slow payment and non-payment are the construction industry's most common problems. Many parties furnishing labor or furnishing materials for a structure project will accept to file a mechanics lien at some point or another to secure payment. Even so, some states require you to send a notice to possessor in order to protect your right to lien. Which states crave a Discover to Possessor (NTO), and how should an NTO be delivered?
Continue reading to notice out.
Which States Require NTOs?
Nosotros've covered this topic at-length our Preliminary Notices FAQs and Resources page. You lot can refer to that page for detailed information about your state's Notice to Possessor statutes.
The following states require yous to transport an NTO to retain your lien rights:
Arkansas
Colorado
Florida
Indiana
Kentucky
Louisiana
Maine
Missouri
Oklahoma
Oregon
Tennessee
Virginia
Washington
How practice You Send a Notice to Possessor?
Sending a Observe to Owner (NTO) is a complicated matter. The document has a lot of criteria. Contractors and suppliers must ensure they send the correct form with the required data to the appropriate recipients.
Importantly, notwithstanding, a notice to owner must exist mailed in a certain manner and within the required time frame. Go along in listen that, given the US Mail service'southward recent 10-twelvemonth programme announcement, construction businesses should set up for boosted commitment delays.
If a merits of lien or bail claim is later required, the lienor will certainly have to prove they met the notice requirement in full. The mailing method volition be highly relevant to that burden. With this in mind, how must lien claimants post their notices to owner documents to the possessor of the property?
This mail examines the underlying requirements. This includes the burden of proof, the difference between certified mail and certified mail service return receipt requested, and ultimately, how y'all tin sleep at night knowing your lien rights are in-tact.
How Does The Law Require You Transport A Observe To Possessor?
The primary question for prime contractors, general contractors, subcontractors, and textile suppliers preparing or sending a "notice to owner" or "preliminary notice" to figure out exactly how the police requires you to transport your detect to possessor. Determining this is not as straight-forward as it may seem.
The required method of delivery may differ depending a few factors. This includes the project'southward state, the project's type, the role the sending party is playing on the project, and the role and tier of the political party who receives the notice. Appropriately, the respond is never as elementary every bit "send it by certified mail". Each fourth dimension yous prepare a mail piece, even when the mail pieces are for the very same project, you should analyze all of these factors to qualify how you must characterization and send that mail slice.
There's a Lot at Play
Louisiana is a great example of this difficulty. Even on the aforementioned type of construction projection (i.e. commercial projects), you may ship the NTO with either certified postal service or certified mail return receipt requested depending on whether the party is delivering materials, renting equipment, or performing labor as a subcontractor (Compare La. R.S. § 4802 with § 4822).
Some other good case is provided in Washington, where preliminary notices on Washington private projects need only be sent by regular certified postal service, but preliminary notices on Washington country projects must be sent by certified mail with return receipt requested.
Putting these nuances aside, mechanics lien and bond merits statutes typically require y'all to send notices by certified mail, registered mail, or certified mail with return receipt requested. Less often, a statute may likewise require sending parties to use the "restricted delivery" service. These mail types are all quite unlike, and those choosing between them must sympathise the differences. More than importantly, you should sympathize what testify you lot'll demand in order to evidence the mail reached the intended recipient.
It may seem like the easy answer is to just label a mail piece with the almost "comprehensive" service. Equally this mail volition brand articulate, however, in that location is never an easy answer.
What's the Difference Between Certified Mail service and Certified Mail Return Receipt Requested?
Likewise often, the term "certified mail service" is used interchangeably with "certified mail with return receipt requested." We have a cracking commodity on the Construction Payment Blog that explains the differences betwixt these ii mailing services in particular: Certified Mail v. Certified Mail Render Receipt. As outlined in this commodity:
Regular certified mail allows the sending political party to track the commitment of a post slice and discover out exactly when and where the item was delivered…[and] requires the recipient's signature [which is] stored with the post office and kept on tape…but is not mailed back to you lot as a standard exercise…
"Return Receipt Requested" is an additional service that yous can add together to a standard certified mail slice. Everything remains the aforementioned except that the signature record is mailed back to the sender.
There is very picayune practical difference between certified mail and certified postal service with return receipt requested. In both instances, the United states of america Postal Services stores the signature record.
If a statute explicitly requires delivery by certified postal service with return receipt requested, the sender must comply with that hard requirement. Otherwise, even so, there are a series of reasons why you lot shouldn't add together a "return receipt requested" to the mailing.
Is it a Best Practice to But Always Transport Every Mail Slice by Certified Postal service Return Receipt Requested?
In terms of legal advice, attorneys love to tell clients do certain things "in an abundance of caution". If you inquire a lawyer, y'all'll likely be told to transport the post piece with the "return receipt requested" service. There are a few unfortunate reasons for this. Mostly, this is a lazy CYA (i.e. "Encompass Your Ass") answer that seems similar it will exist enough in the result of a dispute over the post piece.
However, as this section will explore, this is not the correct nor all-time answer. In fact, it is very likely a bad answer.
ane) Why do more and spend more than than you should?
Sending a postal service piece with return receipt requested when you lot don't have to is like running a marathon but running 35 miles instead of the required 26, but to make sure. Running the extra 9 miles is an capricious extension of the requirement. There'southward no stopping you lot from but running 40 miles, or 45 miles, or more. It's the same if you add extra services to a mail piece.
The boosted "return receipt requested" service also comes with extra expense and headache.
Regarding expense, the service adds betwixt $1.35 (electronic) and $ii.70 (traditional) to the cost of the mailing. This can actually add up for a visitor who sends a medium or high book of preliminary notices. For case, let'southward look at companies that ship notices on approximately ten,000 construction projects each year. They would wind up spending well-nigh $50,000 in superfluous postage. That'southward a measurable amount of money to waste product.
Regardingheadache, you increment the overhead of the mailing if you add the service. This results in more piece of work on your stop. This would happen during the sending process, whereby companies must go through some extra effort and expense to prepare the mailing with the render receipt service. Withal, the real headache is in the potential liability associated with the mail piece after you lot send it.
2) Choosing to transport with return receipt requested tin actually create unnecessary burdens and legal obligations
Ever heard of the saying "what you don't know can't hurt you?" It may exist advisable for those deciding whether to add the "return receipt requested" service to their certified mailing.
When y'all send mail service with the "return receipt requested" service, you receive a signature that demonstrates who received the mail service. This could create a new duty for the sender to review that signature and verify that it'due south from the intended recipient. If the signature is not the appropriate recipient, there is some precedent that puts the sending party on notice that the document did non get correctly delivered.
Equally precedent for this, consider a Michigan appeals court's discussion in Thomas Indus. v. C & L Elec. (1996). In this instance, the "discover" data was placed onto a supplier's standard packing slip. The supplier argued that delivery of the detect data through this skid was sufficient and a divide notification was non required. The primary reason why the courtroom rejected this argument was considering at that place was "no evidence that the packing slips were received or seen past…the persons who would have received and been responsible for receiving the notice" at the receiving visitor."
This potential duty to review the return receipt signature and make corrections is explained well by an Ohio court in Seemiller 5. Amato, as follows:
Seemiller v. Amato, 82 Pa. D. & C.quaternary 353, 354 (C.P. 2007)
"[due west]hen any notice…is either returned without the required receipted personal signature of the addressee or under other circumstances raising a significant doubt every bit to the actual receipt of such notification by the named addressee or is not returned or acknowledged at all, so…the [sender] must exercise reasonable efforts to detect the whereabouts of such person or entity and notify him."
Fulfilling a state's NTO requirement mandates that a sender exert a "reasonable effort" to transmit the notice. In most states, the statutes dictate that you tin deposit the mail with the standard certified mail and satisfy this reasonable endeavor standard. Yet, if you elect to add the "return receipt requested" service, you threaten to increase your responsibility. That'southward considering information technology places an unnecessary burden on your shoulders to review all of these render receipt cards and make sure the signing political party is the party who received and signed the mailing.
3) It will well-nigh never alter the event of an actual example
Upon receipt of a "render receipt" signature, many volition presume that the recipient is then incapable of denying receipt. Nonetheless, this is not the case, and recipients can yet argue they didn't receive the notice or have any "bodily notice" of the document. Despite this, courts accept consistently found that the bodily delivery of the observe is immaterial.
This happened in a 1999 Georgia case that made it all the manner to the Supreme Court. In that case, a notice was sent by certified mail with return receipt requested andsigned for. The recipient withal argued that they did non get the notice and that due process was violated. Fortunately for the sender, the Georgia courtroom didn't even have to get into the nuance of whether the render signature was or was not actually the intended recipient'southward signature. That's because the Georgia Supreme Courtroom called the actual receipt of the observe immaterial to the compliance requirement:
Parks v. Banking concern of Due north.Y., 279 Ga. 418, 420 (2005), see also McCollum v. Pope, 261 Ga. 835 (1992).
…this Court obviously determined that when…[a discover is] postal service[ed]…correctly addressed…the bodily receipt, or want of receipt,..is immaterial to the right[due south].
In this particular case, the Georgia Supreme Courtroom was considering a statute that actually did require certified mail with render receipt requested (Ga. Code Ann. § 44-14-162.2). Yet, despite the explicit requirement in Georgia that "return receipt requested" exist attempted, proving bodily delivery was unnecessary.
When return receipt is unnecessary, the fact that you lot accept i will almost never positively change the outcome of the case. Every bit the Georgia Supreme Court case states, this is considering the mode yous deliver is typically irrelevant to whether or non you lot met the requirement.
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The Burden of Proof to meet Notice to Owner Requirements
The NTO is a precautionary certificate, and you'll never need it until you need information technology. Nevertheless, you'll need to prove you lot sent the discover sooner or afterwards. In fact, if you aren't taking measures to prove that you met the requirement, so yous might as well not send the notice at all. Without such proof, any sent notices will ultimately be worthless.
This begs the questions, notwithstanding, of what exactly y'all'll demand to prove a state'southward notice requirement was met.
Since you lot need to send nearly Notice to Owner documents by certified mail, the required "proof" usually centers around whether the sender has the brunt of evidence that they mailed the document correctly, or whether or not the the recipient actually received it. This area of structure law is pretty well developed. Courts across the country accept very anticipated rules nearly what a sender must testify when delivering a find through mail. These rules are sometimes referred to as a "presumption of delivery" or a "mailbox dominion."
The typical manner courts volition prove compliance with a mailing requirement was nicely explained by a Minnesota appeals court in a case analyzing the sufficiency of a lien notice:
Generally, service is complete when the newspaper is properly mailed…The adventure of failure of the post is on the person to whom it is addressed. Certified mail is a service that provides a mailing receipt to the sender and a tape of delivery at the office of address. The utilise of certified mail fills the office of ensuring receipt by a person of suitable age or discretion at the person's last known address and is thus reasonably calculated to provide detect to the affected person. While service by certified mail raises a presumption of actual notice, such detect may be found where the certified mailing is properly directed to the intended recipient, even though not really received by them. Due procedure requires merely that observe be reasonably calculated to reach interested parties.
The Courts use this aforementioned phrase over and over once more when they analyze a statutory mailing required. "The vast bulk of states and courts adhere to this interpretation of any observe mailing requirement, and the reasoning behind the rule is farther explained by a 1981 Maine case, Cummings v. Oakland, 430 A.2nd 825, 829 (Me. 1981):
The words "shall notify" taken by themselves, may in some contexts import a requirement of actual detect or receipt of notice past the person to whom notice is to exist given. Such import is negatived, however, where other language specifies the mode in which the notice is to be given. In such context, the clear intent of the language is that utilization of the detect mechanism provided for in the statute satisfies the statutory requirement of the giving of observe. In short, if the municipality sends the discover past one of the methods prescribed by the statute, it has given notice within the contemplation of the statute.
This construction is supported past the fact that the statutory language at no point refers to receipt of the discover past the property owner or to acquisition of "actual knowledge" past the property owner.
When sending a Notice to Owner document, companies should concern themselves less with taking an "affluence of caution" approach. They should as well look to the statute and case law to make up one's mind the virtually critical question: Is there annihilation to suggest that the default rule, above explained, would be over-ruled by something specifically requiring proof that the observe was really received. If bodily receipt must be proved, adding return receipt service, as well as restricted delivery service, is a good idea. Otherwise, still, the best practice is to send the document past standard certified mail merely.
Examples: When You Must Simply Prove A Notice Was Sent
In nearly states, you but demand to prove that you sent the documents correctly if you sent an NTO or a preliminary find.
California
This is ofttimes made clear within the statutory requirement itself, every bit is the case in California, where California Code § 8116 explicitly provides that preliminary notice is "deemed to have been given…when deposited in the mail" in the appropriate fashion. If the statute isn't explicit similar this, the courts will interpret whether the sender has a burden to testify the sending or receipt of the discover by analyzing the statutory language in a way similar to the above examples in Maine (Cummings v. Oakland) and Minnesota (Har-Ned Lumber Co. v. Amagineers, Inc.).
Every bit long as the statute doesn't specifically require an "actual receipt", you lot'll but need to prove information technology was properly sent.
Washington
In the state of Washington, for instance, the court inBaker v. Altmayer, lxx Wn. App. 188 (1993), review denied, explained that the states preliminary discover to owner laws did not infer a requirement for "bodily observe" or receipt of notice by the owner. The sending party was "not required to show actual receipt of the discover," but instead needed to prove only that the item was deposited in the mail service in the way required past the statute.
Florida
In Florida, anyone with a directly contract with the owner (known every bit "persons in privity") does not need to send an NTO in order to retain lien rights. Additionally, groups on the chore site like mural architects, interior designers, and engineers demand non send NTOs because they only have lien rights when they have a direct contract.
If you lot're a materialman, sub-subcontractor, or whatever other political party who doesn't have a straight contract with the owner, you need to send a notice to owner in the Country of Florida. You tin can either do so by certified postal service or personal delivery. At that place is no mention in the Florida statutes that require y'all to include the "render receipt requested" service. For a deeper swoop into Florida police force, run across our page about the Florida Notice of First.
Georgia
Yous tin can notice another example in Georgia where the statutory Discover to Owner and Find to Contractor but requires that you transport the discover by standard certified mail. There are other Georgia statutes that crave y'all to transport notices by certified mail with return receipt requested (i.e. Real holding sale fabricated on foreclosure § 44-fourteen-162.two, Tort claims against the state § 50-21-26, Enforcing mandatory didactics on parents of children § xx-two-690.1, etc). Yet, even when "render receipt requested" service is necessary in Georgia, the Supreme Court yet held that successful delivery is "immaterial." Run across, for case, Parks v. Bank of Northward.Y., 279 Ga. 418, 420 (2005), come across also McCollum v. Pope, 261 Ga. 835 (1992).
Minnesota
Finally, an interesting Minnesota case highlights how much more important information technology is to follow the sending requirements than to prove actual receipt. In Pella Products, Inc. v. Arvig Tel. Co., 488 N.Westward.second 316, 318 (Minn. Ct. App. 1992), a Minnesota court determined that even though a party acknowledged a beginning-form mechanics lien argument, they didn't meet the requirement because the sender didn't use certified postal service exactly! As stated by the Georgia court in the Parks case…actual receipt is immaterial. The requirement is to send the document according to statutory specifications.
Examples: When You lot Must Prove A Notice Was Really Received
There are some exceptions to the general rule that you must merely send a notice in gild to be effective. Even so, as you lot'll see from the below examples, these exceptions only apply when there is statutory language within the notice law explicitly excepting the notice from the full general rule and mandating bodily receipt.
Y'all can find statutory examples of this in Kansas and Ohio.
Kansas
In Kansas, Chiliad.S.A. § sixty-103 specifically enumerates that: "[t]he term 'restricted mail' equally used in this affiliate means mail, sent postage or other delivery fees prepaid, that is endorsed on its face up pursuant to applicable postal regulations then that the sender will receive a return receipt notification with the date and accost of delivery, and, if the addressee is a natural person, but the addressee or an authorized agent will receive the mail." In interpreting this statute, a Kansas court in Owen Lumber Company v. Chartland (2007) rejected the "presumption of delivery" main since the legal provision in the construction lien police explicitly required render receipt. Specifically, the court stated that "[w]ith respect to mechanic'south liens, the restricted find requirement of Kan. Stat. Ann. § lx-103 replaces the presumption of delivery with the sureness of proof by the return receipt."
Ohio
In Ohio, Ohio Revised Code § 1311.xix (A)(2) has language similar to the Kansas example, whereby information technology implies a requirement for use of "return receipt requested" with the requirement for delivery by "[c]ertified or registered mail, overnight commitment service, hand commitment, or any other method which includes a written show of receipt." Reviewing this language, an Ohio court has adamant that it is sufficient to overrule the "mailbox dominion" or "presumption of commitment dominion" that would otherwise apply. In Hanson Aggregates Davon, LLC v. J & H Reinforcing & Structural Erectors, Inc., 2014-Ohio-4832, ¶ 18 (Ct. App.) the court stated that "[t]he statute clearly contemplates that mailing a certificate by certified mail will provide written evidence of receipt. Thus, we cannot conclude that requiring Appellant to provide written evidence of receipt is reverse to a obviously reading of the statute, when actual receipt is disputed by Appellees."
Other Notable Courts
Other courts that accept exempted certain lien statutory notices from the general presumption of delivery rule include Maryland, which requires actual receipt pursuant to a 1991 case, Mardirossian Family unit Enterprises five. Clearail, Inc.. It likewise includes Illinois, where the burden is on the sending party to show receipt of a discover whenever a statute calls for the use of "return receipt requested" service. Nat'l City Mortg. v. Hillside Lumber, Inc., 2012 IL App (second) 101292, ¶ ane, 359 Sick. Dec. 388, 389, 966 North.E.second 1076, 1077.
In fact, a goodgeneral dominion of pollex is that if the statute specifically calls for the use of "render receipt requested" service, then the courts volition exempt the notice from the general presumption of commitment dominion and crave proof of actual receipt. Conversely, if the statute does non phone call for "return receipt requested" service, the general presumption of delivery rule will apply.
Notwithstanding, the presumption of commitment rule is so strong in American jurisprudence that many courts will utilize information technology even when a statute explicitly calls for the use of return receipt requested service. Such is the case in Georgia, where the Georgia Supreme Court calls the bodily delivery of a legal notice "immaterial" so long the sender mailed information technology pursuant to statutory requirements (i.e. Park). It is also the example in Colorado, where a mechanics lien statement must exist sent past certified mail, return receipt requested; merely even then, proof that the mail piece was sent according to the requirement is enough because, otherwise, "calculation the implied requirement of actual receipt to this statutory scheme would likely have the paradoxical effect of creating dubiety and controversy, if not rendering meaningless the alternative to personal service which the statute expressly authorizes." 6S Corp. v. Martinez, 831 P.2d 509, 511 (Colo. App. 1992).
More Sophistication Near How You Ship and Track Observe To Owners Overall Will Best Protect Your Lien Rights
A successful Notice to Owner program is just a microcosm of a successful security right program. A company should strive to always be in control of their security position, such that when an account starts to age, leveraging the security right will exist bachelor.
In regards to delivering the Notice to Owner, this means yous need to have certainty that the correct document was sent in the correct manner to the correct parties, and ultimately, that you have the proof yous'll demand to meet your brunt in court. Still, as demonstrated in this article, having this type of certainty near a Notice to Owner commitment is not simple. You cannot satisfy this requirement with an "abundance of circumspection" approach. The best approach is a tailored, intelligent, and managed arroyo.
This all boils down to the importance of sophistication near how you track and transport your Notice to Owners.
Decision
Sending a Detect to Owner is a complicated procedure. On a case-by-case basis, yous must make up one's mind what type of notice document to transport, who to send information technology to, when to send it, and how to send information technology. Each of these determinations can present complexities, and that is especially true for the concluding determination: how to send the NTO.
You lot may ship Notices to Owner with different mail types like certified mail, registered mail, or mail with "render receipt requested service" or restricted delivery service. Yous may also deliver Notices to Owner past hand, with overnight delivery, the sheriff, or other service methods.
Too often, the different options in how you tin can deliver a detect will confuse senders, and you run into this most usually when parties decide whether to send a mail service piece by standard certified mail or certified postal service with "return receipt requested". Too, an "affluence of caution" approach that includes the "render receipt requested" service, however, may be more than than unnecessary; it may likewise add together unnecessary burdens and legal obligations on the sender.
Companies should exist familiar with the necessary brunt of proof to transport a notice, and should use a sophisticated applied science product, like Levelset'splatform, to handle all of the nuances and to maintain the entire process with a loftier degree of system integrity.
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Ship A Observe To Owner - Certified Mail or Certified Mail Render Receipt
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Scott Wolfe Jr
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