Kansas Warning Statement (Early Construction Notice)

Introduction

Key Things to Know

1. 1

   Kansas calls this document a warning statement, not a preliminary notice. It is the letter a supplier or subcontractor mails to an owner on a residential job, and under K.S.A. 60-1103a(b) it is the condition on claiming a lien under K.S.A. 60-1103 for that work.

2. 2

   The service rule is unusually light. Section 60-1103a(b)(1) says the warning statement must be mailed to any one of the owners of the property, and names no class of mail. The only alternative is holding a copy of a statement signed and dated by any one owner that the general contractor or the claimant had already given that owner a conforming warning statement.

3. 3

   One recipient class, not three. Kansas names only an owner. Nothing in section 60-1103a requires a copy to the general contractor, to a construction lender or to a surety, and any one owner of the property is enough even where several people hold title.

4. 4

   Kansas sets no number of days. Section 60-1103a attaches no clock to the warning statement at all. What it attaches is a condition: the letter has to have been mailed, or the owner-signed substitute has to be in hand, before the lien is claimed, because section 60-1103(a)(2) requires an affidavit that the warning statement was properly given to be attached to the lien statement.

5. 5

   Section 60-1103a(c) prints the wording. The prescribed paragraph starts Notice to owner, tells the owner 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, and tells the owner it may withhold the amount claimed from the contractor until the dispute is settled. The standard is substantial compliance.

6. 6

   Two exemptions and a scope limit. No warning statement is required where the claimant's total claim does not exceed $250. The duty bites only on a lien for the improvement of residential property as section 60-1103a(a) defines it. And it sits on claimants furnishing under an agreement with the contractor, a subcontractor or an owner contractor, not on a person who contracted with the owner and claims under section 60-1101.

7. 7

   The letter does real work beyond preserving the lien. Section 60-1103(d) caps the owner's liability at what the owner contracted to pay the original contractor, except for payments the owner made to the contractor after the date the owner received the warning statement. Mailing it early widens the pool of payments the claim can reach.

Kansas Requirements for Preliminary Notice

• Mail It to Any One Owner, No Class of Mail Specified

  Section 60-1103a(b)(1) asks only that the warning statement be mailed to any one of the owners of the property. Kansas calls for no certified, registered or restricted mail, no return receipt, no personal delivery and no posting, which is in pointed contrast to section 60-1103(c) for the lien statement. The statutory alternative is holding a copy of a statement signed and dated by any one owner that the general contractor or the claimant had already given that owner a conforming warning statement.

• One Recipient Class: An Owner, and Any One Will Do

  Kansas names an owner and nobody else. Section 60-1103a requires no copy to the general contractor whose agreement the claimant furnishes under, none to a construction lender and none to a surety, and where several people hold title, any one of the owners is enough.

• No Number of Days, but It Must Precede the Claim

  Section 60-1103a attaches no clock and no trigger date to the warning statement. It is written as a condition: the lien may be claimed under section 60-1103 only if the claimant has mailed it or holds the owner-signed substitute. Section 60-1103(a)(2) fixes the practical limit by requiring the affidavit of proper giving to be attached to the lien statement. Attorney review available on this point, which is read from three sections together rather than from one deadline sentence.

• The Prescribed Notice To Owner Paragraph

  Section 60-1103a(c) prints the wording and says the warning statement shall contain substantially that statement to be effective. It names the supplier or subcontractor, a job number, the residence address and the contractor, warns that Kansas law will allow a lien against the property for materials or labor the contractor did not pay for unless the owner holds a signed waiver of lien from that claimant, and tells the owner it may withhold the amount claimed from the contractor until the dispute is settled.

• The $250 Claim Floor

  Section 60-1103a(d) provides that the warning statement is not required if the claimant's total claim does not exceed $250. It is a floor on the claim itself, not on the contract value and not on the size of the job.

• Residential Property Only, Defined Two Ways

  The duty bites only on a lien for the improvement of residential property. Section 60-1103a(a) defines that as an improvement to a preexisting structure the owner resides in when the claimant first furnishes, not used or intended for more than two families or for commercial purposes, including an appurtenant addition, garage, fence, swimming pool or outbuilding; or construction on land owned or acquired by an individual that is intended to become and does become that individual's principal personal residence. A commercial job carries no warning statement duty.

• An Affidavit of Proper Giving, Sworn Later

  Section 60-1103(a)(2) requires the affidavit of the supplier or subcontractor that the warning statement was properly given to be attached to the lien statement. Because no certified mail or return receipt is called for, the claimant's own file is the only evidence behind that affidavit. Record the mailing date, the address used, the owner named and the person who posted it on the day it goes out.

• New Residential Property: A Notice of Intent to Perform Instead

  On new residential property, meaning a new structure built as a residence for not more than two families, K.S.A. 60-1103b substitutes a notice of intent to perform, filed with the clerk of the district court of the county where the property is located before the deed effecting passage of title to a good faith purchaser is recorded. It is sufficient if in substantial compliance with the form set forth by the judicial council, it stops having effect 18 months after it is filed unless the claimant has by then claimed its lien, and a claimant paid in full must file a release of that notice with a waiver.