Preliminary notices serve many purposes in a construction project. Among construction professionals, a preliminary notice preserves their lien rights and informs the property owner of their participation in a project. Among property owners, it is a document that lets them know of the possibility of having a mechanics lien recorded against their property.
In Kansas, just like in most states, there are strict rules and requirements for serving a valid preliminary notice. This guide will discuss the procedures for sending the two preliminary notices in Kansas, the Warning Notice and the Notice of Intent to Perform.
Who must serve the preliminary notices in Kansas?
Parties with no direct contract with the property owner of a residential property are required to serve a preliminary notice in Kansas. The specific type of preliminary notice that applies to you depends on the type of residential property that you are working on.
General contractors, parties with a direct contract with the owner, and parties working on non-residential projects are not required to serve any Kansas preliminary notice.
Warning Statement
A Kansas Warning Statement is required for projects in which you are doing improvements or remodels on an existing residential property. You have to serve this Kansas preliminary notice on at least one property owner if the property has multiple owners.
If your services’ worth does not exceed $250, you do not need to serve a Kansas Warning Statement.
Notice of Intent to Perform
A Kansas Notice of Intent to Perform is required in projects where participants are doing work on a “new residential property.” This means that a project is a new structure that is for non-commercial and residential use.
Note that the Kansas preliminary notice must be mailed to one of the property owners and filed in the office of the district court of the county where the property is located.
When do you serve the Kansas preliminary notices?
Warning Statement
The Kansas Warning Statement must be served before recording a mechanics lien. There is no specific deadline as long as you serve this preliminary notice prior to filing your Kansas mechanics lien.
Notice of Intent to Perform
Like the Kansas Warning Statement, the Kansas Notice of Intent to Perform must be served and filed before recording your mechanics lien.
What happens if you fail to serve a Kansas preliminary notice?
Failing to comply with the applicable preliminary notice requirements in Kansas will prohibit you from exercising your lien rights by filing a mechanics lien to recover your payment. To ensure that you can successfully recover your payment through a lien, make sure to serve the required preliminary notices.
How to serve the Kansas preliminary notices
1. Prepare the Kansas preliminary notice form
Warning Statement
According to the Kansas Statutes, you need the following details on your Warning Statement:
- Your name
- The job number
- The residence address
The Kansas Warning Statement must also substantially contain the following statement in order for it to be valid:
“Notice to owner: (name of supplier or subcontractor) is a supplier or subcontractor providing materials or labor on Job No. ______ at (residence address) under an agreement with (name of contractor). Kansas law will allow this supplier or subcontractor to file a lien against your property for materials or labor not paid for by your contractor unless you have a waiver of lien signed by this supplier or subcontractor. If you receive a notice of filing of a lien statement by this supplier or subcontractor, you may withhold from your contractor the amount claimed until the dispute is settled.”
Notice of Intent to Perform
The Notice of Intent to Perform template is provided by the Kansas Judicial Council:
K.S.A. 60-1103b
Notice of Intent to Perform
(7/1/05)NOTICE OF INTENT TO PERFORM
I, (name of supplier, subcontractor or contractor) , (address of supplier, subcontractor or contractor)
do hereby give public notice that I am a supplier, subcontractor or contractor or other person providing materials or labor on property owned by (name of property owner and having the legal description as follows:(Legal description of property)
Authority
K.S.A. 60-1103b
Notes on Use
The notice of intent to perform provided for in K.S.A. 60-1103b is limited to “new residential property” which is defined as “a new structure which is constructed for use as a residence and which is not used or intended for use as a residence for more than two families or for commercial purposes. ‘New residential property’ does not include any improvement of a preexisting structure or construction of any addition, garage or outbuilding appurtenant to a preexisting structure.” K.S.A. 60-1103b(a).
The lien for furnishing labor, equipment, materials or supplies for the construction of new residential property may be claimed pursuant to K.S.A. 60-1103 after the passage of title to such new residential property to a good faith purchaser for value only if the claimant has filed a notice of intent to perform prior to the recording of the deed effecting passage of title to such new residential property. K.S.A. 60-1103b(b).
Comments
For history of the litigation giving rise to this provision, see Owen Lumber Co. v. Arthur Chartrand, 27 Kan.App.2d 72, 998 P.2d 509, judgment aff’d, 270 Kan. 215, 14 P.3d 395 (2000) and Owen Lumber Co. v. Chartrand, 276 Kan. 218, 73 P.3d 753 (2003).
Based on the form above, you need to gather the following information to file a Kansas Notice of Intent to Perform:
- Your name and address
- The job number
- The name of the property owner
- The legal description of the property
- The value of your services
- The name of the county where the property is located
- Your signature
Also, note that you need to include all the statements provided in the template above. You may download the Notice of Intent to Perform template from the Kansas Judicial Council website.
2. Serve (and file) the preliminary notice form
Warning Statement
The Warning Statement is simply mailed to the property owner, or at least one of the property owners. There is no specific method for how you can mail this Kansas preliminary notice, but the best practice is to serve it via certified mail with return receipt requested.
There is no deadline too for filing this preliminary notice as long as you serve it prior to filing your Kansas mechanics lien.
Notice of Intent to Perform
The Notice of Intent to Perform is filed in the office of the district court of the county where the property is located. Filing comes with fees so be ready to shoulder them.
You should also mail a copy of this Kansas preliminary notice via certified mail with return receipt requested.
There is no hard-and-fast deadline for filing this preliminary notice, but you need to do so before you record a mechanics lien. Also note that once the lien has been satisfied, usually through payment of the outstanding debt, you need to file a release of this notice in the same district court where you recorded the Notice of Intent to Perform.
Best practices for serving a Kansas preliminary notice
1. Prepare the preliminary notice forms early
The tricky thing about Kansas preliminary notice is that they have no hard-and-fast deadlines. You may serve them at any time before recording a mechanics lien, but it doesn’t mean that you should wait until the last minute before you prepare your preliminary notice templates. Make sure that you have collected the required information and that the preliminary notice form is ready in case you need to record a Kansas mechanics lien.
2. Remember to gather the correct and accurate details
The details that you need to put in your Kansas preliminary notice depends on the type of preliminary notice that you have to serve. For example, the Warning Statement only needs a residence address while the Notice of Intent to Perform needs a legal property description. Be sure to gather the correct details; otherwise, your preliminary notice may be deemed invalid.
3. Do not forget to file a mechanics lien
Serving a Warning Statement or filing a Notice of Intent to Perform does not count as recording a mechanics lien itself. If payment issues come up, you need to file a Kansas mechanics lien to have stronger leverage during payment negotiations. Do not forget to record your mechanics lien on top of serving a Kansas preliminary notice to ensure that you can successfully recover your payment.
Further reading