Massachusetts Notice of Identification (c. 254, Section 4)

Introduction

Key Things to Know

1. 1

   The recipient is the original contractor, nobody else. Section 4 has the notice of identification given to the general contractor who holds the contract with the owner. Massachusetts does not route it to the owner, to the construction lender, to a surety, or to the subcontractor who hired the claimant.

2. 2

   It is a cap-lifter, not a lien-saver. A claimant with no direct contractual relationship with the original contractor keeps its lien either way, but without a timely notice that lien cannot exceed the amount due or to become due under the subcontract between the original contractor plus the subcontractor whose work includes the claimant's work.

3. 3

   Thirty days, counted from commencement of his performance. The clock starts on the claimant's own first day of performance, not on the project's start, not on a recording, not on an unpaid invoice.

4. 4

   One delivery method is prescribed: certified mail, return receipt requested. Section 4 offers no alternative of hand delivery, ordinary mail, courier, fax or email, so the returned card is both the service proof plus the only evidence that the thirty days were met.

5. 5

   Section 4 prints the form, headed Notice of Identification. It names the contractor as contractor, names the claimant as subcontractor, vendor or design professional, identifies the party the claimant signed a written contract with, states what is being furnished, gives the street address with the town or city in Massachusetts, then states the amount or estimated amount of the contract. No amount need be stated for contracts for the rental of equipment, appliances or tools.

6. 6

   Two saving clauses make this forgiving once sent. The amount stated in the notice shall not limit the amount of the lien. Any inaccuracy in the naming of the contractor or other information shall not affect its validity provided there shall be actual notice.

7. 7

   A written contract is the threshold question, before any date. Section 4 reaches whoever furnishes labor, including subcontractor construction management services, or material, or rental equipment, appliances or tools, or professional services, under a written contract with a contractor or with a subcontractor of such contractor. Personal labor claimants under Section 1 are excepted from the cap this notice relieves.

Massachusetts Requirements for Preliminary Notice

• The Original Contractor Is the Only Recipient

  Section 4 has the notice of identification given to the original contractor, meaning the firm holding the contract with the owner. The owner receives no copy of this document, nor does the subcontractor that hired the claimant, nor a construction lender or surety. The recipient follows the remedy, because the ceiling this notice lifts is measured against the general contractor's own subcontract balance.

• Thirty Days From Commencement of Your Performance

  The statutory words are within thirty days of commencement of his performance, so the clock starts on the claimant's own first day on the project rather than on the project's commencement or on a recorded document. Section 4 states this as an outer limit; it says nothing about sending the notice before performance begins.

• Only Claimants Remote From the General Contractor Need It

  The notice matters to a claimant under Section 4 who has no direct contractual relationship with the original contractor, which in practice is the second tier and below: sub-subcontractors, suppliers to a subcontractor, equipment lessors renting to a trade, design professionals engaged below the general contractor. A first-tier subcontractor is not inside the cap. Section 4 also excepts liens for labor by persons defined in section one of the chapter.

• Certified Mail, Return Receipt Requested, and Nothing Else

  Section 4 requires the notice to be given by certified mail return receipt requested to the original contractor. No alternative of personal delivery, ordinary mail, courier, fax or email appears in the subsection. The signed return card is the service proof, plus the evidence of actual notice that the statute's saving clause depends on.

• The Printed Notice of Identification Form

  Section 4 prints the form, asking for substantial compliance. It names the general contractor as contractor; names the claimant with its role as subcontractor, vendor or design professional; identifies the party the claimant entered a written contract with; states what is to be furnished, being labor, materials, labor and materials, rental equipment, appliances or tools, or professional services; gives the street address plus town or city in Massachusetts; then states the amount or estimated amount of the contract. No amount need be stated for contracts for the rental of equipment, appliances or tools.

• Skipping It Caps the Lien by the Subcontract Above You

  Without a timely notice, a claimant with no direct contractual relationship with the original contractor has a lien that shall not exceed the amount due or to become due under the subcontract between the original contractor and the subcontractor whose work includes that claimant's work, measured as of the date the claimant files his notice of contract. The lien is not lost; it is measured against somebody else's contract balance, which can be zero.

• Two Saving Clauses: the Stated Amount, and an Inaccuracy

  Section 4 provides that the amount stated in any such notice of identification shall not limit the amount of the lien, so an early estimate does not become a ceiling. It also provides that any inaccuracy in the naming of the contractor or other information in the notice shall not affect its validity provided there shall be actual notice. Neither clause forgives lateness or the wrong delivery method.

• A Written Contract Is the Threshold

  Section 4 reaches whoever furnishes labor, including subcontractor construction management services, or material, or rental equipment, appliances or tools, or who performs professional services, under a written contract with a contractor, or with a subcontractor of such contractor. A verbal arrangement or an uncountersigned quote leaves a claimant outside the section, so the signed subcontract or purchase order is the first document to locate.