Michigan Notice of Furnishing (MCL 570.1109)
A late Michigan notice of furnishing shaves the construction lien rather than destroying it, except for a laborer, whose lien is defeated outright. MCL 570.1109 sets the recipients, the method and the printed form. Attorney review available.
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Introduction
Serve a Michigan notice of furnishing late, as a subcontractor or supplier, and the construction lien is not destroyed. It is shaved. MCL 570.1109(5) keeps the lien for everything furnished after service, then subsection (6) keeps it for everything furnished before service too, with one exception that does all the damage: the part the owner or lessee had already paid the contractor against a contractor's sworn statement or a waiver of lien covering your work. So the real cost of a late notice in Michigan is measured in progress payments already gone, not in a lost remedy. A laborer sits under a harsher rule. Subsections (7) and (8) say that failing to give the notice to the designee defeats the laborer's lien for the wages, fringe benefits or withholdings it was required for, with no partial recovery. Subsection (9) then softens one piece of it: a laborer who reached the designee but missed the general contractor keeps the lien, yet is liable for any actual damages the general contractor sustains. Subsection (6), the provision that saves a late subcontractor, expressly does not apply to a laborer. Who gets served is decided for you by the notice of commencement. The notice of furnishing goes to the designee plus the general contractor, if any, as named in the notice of commencement, at the address shown in it, with service on the owner or lessee named there if no designee was named or the designee has died. That document is also where Michigan puts the blank form: a copy of a notice of commencement must have a blank notice of furnishing attached, easily detachable. DocDraft builds your Michigan notice of furnishing from your facts, with attorney review available before you serve it.
Key Things to Know
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A late notice of furnishing costs a Michigan subcontractor or supplier only one slice of the lien. Under MCL 570.1109(6) the lien survives for work or materials furnished before service, except to the extent payments were made by or on behalf of the owner or lessee to the contractor pursuant to a contractor's sworn statement or a waiver of lien for work performed or material delivered by that claimant.
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A Michigan laborer faces a harder rule. MCL 570.1109(7) and (8) defeat the laborer's lien for the wages, or for the fringe benefits and withholdings, that a missed notice to the designee was required for. Subsection (6), the rule that saves a late subcontractor's earlier work, states that it does not apply to a laborer.
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Two parties are served, both named in one document: the designee plus the general contractor, if any, as named in the notice of commencement, at the address shown in the notice of commencement. Where no designee was named, or the designee has died, service must be made on the owner or lessee named there instead.
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The windows differ by claimant. A subcontractor or supplier has 20 days after furnishing the first labor or material. A laborer has 30 days after wages were contractually due but were not paid. For fringe benefits or withholdings a laborer has until the fifth day of the second month following the month they were contractually due but unpaid.
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Service is complete on mailing, which puts the date under your control. A subcontractor or supplier serves personally or by certified mail, complete on mailing. A laborer under subsection (2) may serve by mail, complete on mailing by first class mail with postage prepaid. A laborer under subsection (3) serves personally or by certified mail, complete on mailing.
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MCL 570.1109(4) prints the form, headed NOTICE OF FURNISHING, allowing instead the blank form attached to the notice of commencement. It closes with a prescribed all-capitals paragraph beginning WARNING TO OWNER: THIS NOTICE IS REQUIRED BY THE MICHIGAN CONSTRUCTION LIEN ACT, which goes on to warn the owner about the possibility of paying twice for the improvements.
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Somebody else's failure can buy you time. MCL 570.1108(10) and (11) extend a subcontractor's or supplier's window to 20 days after the notice of commencement has been recorded, or after it actually has been furnished, where the owner, lessee or designee failed to do either. The laborer equivalents in 108(12) and (13) run 30 days, or the section 109 time, whichever is later, with residential versions in 108a(9) and (10).
Key decisions before you file
Before you file a Preliminary Notice in Michigan, a few decisions shape the document: which option to choose and what each one means. The Preliminary Notice guide walks through them.
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Michigan Requirements for Preliminary Notice
A Late Notice Shaves the Lien, It Does Not Destroy It
MCL 570.1109(5) preserves a subcontractor's or supplier's construction lien for work performed or materials furnished after service of a late notice. Subsection (6) preserves it for work or materials furnished before service as well, except to the extent payments were made by or on behalf of the owner or lessee to the contractor pursuant to either a contractor's sworn statement or a waiver of lien for work performed or material delivered by that claimant. That exception is the real exposure.
For a Laborer the Lien Is Defeated Outright
MCL 570.1109(7) provides that a laborer's failure to give the notice to the designee as required by subsection (2) defeats the laborer's lien for those wages, and (8) does the same for the fringe benefits and withholdings under subsection (3). Subsection (6), which rescues a late subcontractor's earlier work, states that it does not apply to a laborer. Under (9), a laborer who reached the designee but missed the general contractor keeps the lien yet is liable for any actual damages the general contractor sustains.
Two Recipients, Both Named in the Notice of Commencement
The notice of furnishing goes to the designee and the general contractor, if any, as named in the notice of commencement, at the address shown in the notice of commencement. If a designee has not been named, or if the designee has died, service must be made on the owner or lessee named in the notice of commencement. No construction lender or surety is a named recipient.
Three Windows, by Claimant Type
A subcontractor or supplier: within 20 days after furnishing the first labor or material. A laborer, for wages: within 30 days after wages were contractually due but were not paid. A laborer, for fringe benefits or withholdings: by the fifth day of the second month following the month in which they were contractually due but were not paid. Each window opens with the words Except as otherwise provided in sections 108 and 108a.
Personal Service or Mail, With Service Complete on Mailing
A subcontractor or supplier serves either personally or by certified mail, with service complete on mailing. A laborer under subsection (2) serves personally or by mail, complete on mailing by first class mail with postage prepaid. A laborer under subsection (3) serves personally or by certified mail, complete on mailing. Because the statute fixes service at mailing, the dated mailing receipt is the proof rather than any return receipt or affidavit.
The Printed Form, With the WARNING TO OWNER Paragraph
MCL 570.1109(4) prints the form headed NOTICE OF FURNISHING, allowing instead the blank form attached to the notice of commencement. It calls for the designee or owner from the notice of commencement with that address, the other contracting party being furnished, the type of work, the property identified by liber and page of the recorded notice of commencement or by attaching a copy, the claimant's name and address, the name and capacity of the signer with that signer's address, plus the date. The all-capitals paragraph beginning WARNING TO OWNER: THIS NOTICE IS REQUIRED BY THE MICHIGAN CONSTRUCTION LIEN ACT must appear as the statute writes it.
The Owner Side's Failure Extends Your Window
On other real property, MCL 570.1108(10) extends a subcontractor's or supplier's time until 20 days after the notice of commencement has been recorded, where the owner, lessee or designee failed to record it, while (11) extends it until 20 days after that notice actually has been furnished, where they failed to provide it on written request. For a laborer, (12) and (13) give 30 days from the recording or the provision, or the section 109 time, whichever is later. MCL 570.1108a(9) and (10) carry the residential equivalents.
Residential Structures Run on a Request, Not a Recording
MCL 570.1108 applies to other real property and requires the notice of commencement to be recorded before the commencement of any improvements, then posted conspicuously on the property. MCL 570.1108a applies to an improvement to a residential structure, where nothing is recorded: the owner or lessee prepares and provides the notice of commencement to a contractor, subcontractor, supplier or laborer who made a written request, with posting only where the owner or lessee does not currently reside there. MCL 570.1106(4) defines a residential structure as a condominium unit or a building of not more than 2 residential units in which the contracting owner or lessee resides or will reside on completion.