One of the biggest challenges contractors, subcontractors, material suppliers and lenders, making the construction loans, usually face, following a project’s completion, is getting paid for services rendered. As a result, they look for different solutions to ensure they receive what they’re owed by developers or project owners.
One of the most popular solutions in the market is an Ecrow Agreement. Many contractors, material suppliers, and top-tier parties use construction escrow to ensure they’re paid as long as they meet all their contract conditions. When it comes to Lenders, who finance a construction project, they always have an Escrow Agreement that spells out the terms, amounts and funds control in an escrow bank account.
In this post, we’ll share a quick guide to construction escrow accounts and agreements for contractors and suppliers.
Construction Escrow Explained
In layperson’s terms, a construction escrow or funds control is a construction payment account made and maintained in a third-party financial institution, such as a bank, to hold all the funds of a specific project. By creating an escrow account and signing an escrow agreement, all parties can ensure they will have sufficient funds for the project’s scope,and get paid for services rendered. This escrow account is managed by the lender or the third party, like an escrow company or funds control, who is the business of managing escrow funds for different projects and different lenders.
However, while escrow accounts and agreements guarantee payment, they don’t guarantee on-time payments, as the third parties managing the account take much longer to process them. Depending on the state, these parties can be a bank, insurance company, escrow company, funds control company or law firm.
All of these entities must have licensed escrow agents that have no affiliation with any party to ensure they remain unbiased when managing transactions.
Payment Distribution Using Escrow Accounts
Before any project commences, it’s the lender’sresponsibility to add funds to the escrow account created. Once done, the account is controlled by the third party managing those funds. Any party that requires payment for different processes or for work completed must submit a payment request or voucher or withdrawal request to the third party for disbursement of funds. Those said funds must be maintained in a trust account that is designed to have subsidiary ledgers for each client or for each project. In many states in the USA, those trust accounts are being audited by the authority in charge of overseeing them, to insure proper management and avoiding any theft by the managing company. In addition, those bank accounts are FDIC insured.
Most contractors request draws from the escrow accounts as soon as they complete different phases of their projects to ensure they have sufficient capital for the future. For example, to pay subcontractors for their work, pay for new permitsand other expenses associated with the project.
Once they send in a request, the escrow company sends an onsite inspection team or person to audit the project and determine if the amount requested matches the work completed before the next phase of the disbursement is provided. Next, the inspector drafts a report and submits the payment request for processing and approval by the escrow company for releasing the funds.
Benefits of Using a Construction Escrow or Holder of Funds for Contractors, Developers, and Third Parties
Owners of self funded projects should have an escrow agreement in place and hire an escrow company/funds control company. Contractors signing an escrow agreement and having the owner opening an escrow account is an excellent way to reduce the uncertainty of funding and payment. Therefore, they can better focus on their job without being worried about getting paid for services rendered. Of course, they must submit the right paperwork and ensure their withdrawal requests match the completed work.
While every party that signs an escrow agreement is protected, the developers or owners receive the most protection. Although, they cannot delay their property taxes, since there certain due dates for them, and insurance premiums on their property, to insure proper coverage, in case there is a loss, they can protect themselves from non-project creditors and pay all parties without too much effort, as the escrow company will do most of the leg work.
However, to reap any additional benefits, the property owner must fund the account properly, if there is no bank financing involved. More importantly, proper funding can ensure every party is satisfied and can focus 100% on the project’s scope.
When a lender is involved in financing a construction project, they setup the escrow account for managing the construction project and releasing funds as the construction progresses.
The borrower of such funds, depending on the state in the USA, may or may not have to pay interest on the whole amount of the loan. For example if the construction loan is for $2,000,000, the appraisal on the property, in order to justify the lender providing a loan for $2M, is based on the completed value of the property under construction. In addition, the borrower may only pay interest on the loan for the amount of each disbursement and based on the completed phase of the project. i.e. if the first disbursement is for $200,000, the interest is based on the funding of the first $200,000 as of a certain effective date. Next disbursement can be 2 months later, and the accruing interest on the next disbursement can start on a different date. So, the completion of each phase of the project is also tied in with the starting date of the next phase and when interest starts accruing for the following phase. As a side note, the parent company of i-Lien Software, Golden Omega also specializes in software for the mortgage industry. https://www.i-lie.net. Use the i-Lien Software to Create Joint Check Agreements.
Every construction project requires a steady flow of funds to ensure all parties have sufficient capital for their processes. Construction escrow accounts are among the most popular tools used by developers, contractors, and other top-tier parties to ensure fair and timely distribution of funds at every phase.
Use Joint Checks, in order to insure payments made to sub-contractors are guaranteed with it.
However, payments can be delayed due to the slow pace of payment processes from escrow companies or other third parties managing the transactions. So, make sure you double down on the protection by issuing a Preliminary Notice to the Owner, in order to establish your lien rights.
Using the i-Lien software, You can prepare a Preliminary Notice to Owner following your state’s construction laws to accelerate to protect your income. In regards to an Escrow Agreement, if you don’t have a lender involved, you can contact us and we can provide you with one to use. It is the same one included in our mortgage software for construction loans.
So, get in touch immediately with our team and explore what our innovative Mechanic’s Lien solution offers.READ MORE
You are not alone if you have never heard of a Mechanic’s Lien or if you have heard the word but are still determining its meaning.
Take the time to properly understand the mechanic’s lien laws in your State or any other State you do business in, when you are a general contractor, sub-contractor, building material suppliers, a professional in the construction industry or even a labor provider. By being aware of the mechanic’s lien laws in the State where you do with you can ensure that following procedure, protects your income.
A mechanic’s lien is a formal claim against real estate that aids in securing payment. A Mechanic’s Lien is a lien filed on the Owner’s property by the general contractor, sub-contractor, building material suppliers, a professional in the construction industry and labor provider for monies owed to them. It imposes a claim on a property until full payment is received. The claim is a lien on the property, and it only gets distinguished when the claim is paid off via a property refinance, sale or by perfecting it in court by filing a law suit against the property owner, or simply paying it off directly to the party who filed the claim/lien.
Every State has construction lien laws, which allow contractors and suppliers to place a lien on the property where work was performed if they aren’t paid. Due to the lien’s attachment to the property title and owner-created hassles, it is the last option but a very effective instrument for helping construction businesses get paid.
The process of submitting a lien is not overly complicated at first glance. It only takes a few minutes to fill out a construction Mechanic’s lLen form, especially with the i-Lien software, that simplifies the process, and submit it to the recording office of the jurisdiction where the property is located. Depending on the State, the party filing the claim has sixty days to two years (on average) to negotiate payment with the property owner after filing a claim.
However, rather than seeing a Mechanics Lien as a single document, it’s wiser to view it as a process. It is because, in most situations, a contractor must issue specific notices at the start or throughout a project to safeguard their right to file a lien eventually if they don’t get paid. You can find that you don’t genuinely have lien rights when you need them, if you skip a step or miss a deadline.
Even the most minor errors in the Mechanic’s Lien process may invalidate your payment claim. The devil is in the details, and American Mechanics Lien rules demand unprecedented specificity. Additionally, the regulations vary based on the real estate’s location and the project’s type.
Despite the challenges, a Mechanics Lien is the most powerful payment guarantee for construction companies. It may be more effective than taking legal action to execute a construction contract (which ultimately depends on a judgment lien). Contrarily, a construction lien frequently enables a contractor to receive payment without needing to retain legal counsel or appear in court.
You must first be aware of the urgency to submit a mechanic’s lien. You risk having your request rejected if you wait too long to file and only do so when a mechanics lien is required. You must provide clear notices in advance, usually at the start of the project, to maintain your right to file your lien. These notices are generally known as “Preliminary Notices to Owner” and “Notices of Intent to Lien (NOI).” The following are three main steps before even filing a mechanic’s lien:
The procedure for filing a lien shouldbegin with sending a preliminary notification with proof of mailing or via Certified Mail where required. It is the Preliminary Notice to Owner that establishes the Lien Rights to get paid. Preliminary notifications, also known as “Pre-Lien Notices to Owner” or “Preliminary Notices to the Owner,” are written communications given by the construction party to the project ‘s property owner to let them know who is involved in the project. In order to prove that the Notice was sent, you must “Proof of Service, such as US Post Office Certified Mail with return receipt or a stamp on the PS3877 form
Besides having the legal requirement in most States to provide a Preliminary Notice to Owner even on small jobs, consider these notices a form of inexpensive insurance for your construction business. Even though everything might go without a hitch, this is only to ensure that you have established your Prelien Rights and you are prepared to protect your income and get paid, if there is an issue.
The next stage in the procedure is to submit an NOI, “Notice of Intent”, also known as a “Lien Warning Notice” or “Notice of Intent to Lien.” You will deliver this notice as a final reminder if you have been working on the propertybut have yet to receive payment. Doing this will offer the paying party one last opportunity to pay the cost before you place a Mechanic’s Lien on their property.
Before filing a Mechanic’s Lien, some States may require claimants to send a Notice of Intent; nevertheless, even if this is not a requirement in some States, it is still advisable to provide a Notice of Intent. Delivering an NOI lets the parties know that you’re genuinely concerned about it and gives them a chance to work out a payment solution.
The parties making the payments will want to avoid having liens, so doing so will help everyone involved resolved the unpaid balance. The notice is always delivered following a Preliminary Notice to Owner and before the filing of a lien. States that require NOIs have different deadlines. Inform yourself with those different requirements for the States you do business in.
Construction businesses may formally file a Mechanic’s Lien form sign and notirized with the county where the property they performed work is located,if payment is not made by the conclusion of the 20–30-day notice period.
Mechanic’s Liens are the best strategy for recovering payments for unpaid suppliers and contractors. The job site becomes collateral for a contractor’s debt when a mechanics lien is filed. It encourages the party with a lien to make restitution and put the dispute to rest.
State-specific deadlines vary, but generally speaking, a Mechanics Len needs to be filed within a certain amount of time from the final day that labor or supplies were provided. A Mechanics Lien must then be enforced within a certain time from the day it was filed and at that point a lawyer will have to be involved in order to perfect the lien.
Preparing your Mechanic’s Liens involves more than downloading a form, filling it out, and submitting it. Lien laws are complex, so you must take care and provide the necessary details in your construction Mechanic’s Lien forms. And you need to be attentive to use the proper form.
The good news is that i-Lien Software makes the mechanic’s lien process a breeze. You no longer need to spend hours getting your construction mechanic’s lien forms right. The i-Lien software automates and streamlines the process of creating Construction Lien notices & Mechanic’s Lien documents to save time, safeguard your rights, and help you get paid quickly! Call us Today!READ MORE
As a contractor, building material supplier, professional architect, designer or construction labor provider you count on getting paid quickly for your hard work, so it may be stressful (and very frustrating) when it doesn’t. Customers may refuse to send money for a building project until contractors threaten legal action, whether because of a shortage of funds, displeasure with the job, or another reason.
Fortunately, contractors have preventive legal measures at their disposal to guarantee that they are paid for their job; the two we’re concentrating on today are the Preliminary Notice to Owner and the Notice of Intent to Lien (NOI) or Lien Warning Notice.
There is a clear distinction between “sending notices of intent to lien” and “sending preliminary notices to owners,” even though the terms are frequently incorrectly used interchangeably plus to make even more confusing the necessary legal paperwork for both has various title names based on the State.
A Preliminary Notice to Owner or Notice to Owner is a standard legal form informing the property owner who the parties are involved in his/her project, with the proper language required under each State of the project work; an NOI is a more serious warning document indicating an intent to file a lien. The differences between a preliminary notice and an NOI are found in the ramifications of each document.
To safeguard your legal right to payment for the services you provided, if you’re a contractor who likes to get paid for your job, you must understand the distinction between a Notice of Intent to Lien and a Preliminary Notice. And in this post, we’ll help you in doing just that.
What Is a Preliminary Notice to Owner in Construction?
The first step in establishing lien rights on a construction project is sending Construction Preliminary Notices to Owner. Missing the deadline or failing to give the required Preliminary Notice typically results in the loss of Lien Rights and the inability to file a Mechanic’s Lien in the case of non-payment.
Even though it may not be mandatory in a particular State, sending a preliminary notice is very beneficial. These notices emphasize your invoice by keeping the property owner, general contractor (GC), and other top-of-chain stakeholders informed about your work. Additionally, it fosters strong working relationships by making the project transparent.
Consider a preliminary warning as a preventative measure rather than a response. Contractors often file preliminary notices at the outset of a project, perhaps even before project work has started, and almost always far before any payment issues surface. It is a low-cost insurance product created specifically for the construction sector.
There are a few things to keep in mind about preliminary notices:
● Every construction company in the country should use a preliminary notice, but in some places, it’s necessary to protect your lien rights.
● Depending on the State a project is in, a preliminary notification may go by various titles like Notice of Furnishing in Michigan, Notice to Owner in Florida, etc.
Who Files It?
The Preliminary Notice is often sent by material suppliers, contractors, and subcontractors. All or any of them may issue a preliminary notification to the responsible party in contractual arrangements, which is often the construction lender, the general contractor, or the property owner.
Second-tier and lower-material suppliers and subcontractors may submit the form for public contracts. However, it is just the general contractor who needs to deliver the document for projects sponsored by a lender.
Which States Require It?
Nearly all states mandate the Preliminary Notice. The contractors’ and subcontractors’ rights to file a mechanical lien and pursue unpaid clients will be essentially worthless in nearly all states if a preliminary notice is not submitted.
In all but Texas and Mississippi, prime or direct contractors are obligated to file a preliminary notice. Only upon demand or delivery of other non-lien-related documents triggers the requirement for the notice in these two states.
What Is a Notice of Intent to Lien?
Now that we have discussed preliminary notice, let’s look at the Notice of Intent.
An official demand letter is what the Intent to Lien letter or Notice of Intent to Lien is. It must be prepared after giving preliminary notice but before submitting a mechanic’s lien claim. Compared to the first document, which is typically given as a precaution, this one carries much more legal weight.
It usually occurs after mailing the preliminary notice and before submitting a lien claim as the second stage in the lien rights procedure.
Although they pack a powerful legal impact, Notice of Intent to Lien documents alert property owners to your intentions. Consequently, they often provide better and faster outcomes, with contractors receiving payments an average of twenty days sooner.
NOIs also have the advantage of being pertinent to parties besides the debtor and carrying more weight. As a result, more attention is required, and more success is generated. After delivering an NOI to an overdue customer, most of the time, payments are made within twenty days.
Who Files It?
The party that wishes to collect money from a customer who hasn’t paid on time files the Notice of Intent to Lien. To make the client aware that they still owe you money, you can serve a Notice of Intent to Lien whether you’re a material supplier, a contractor, or a subcontractor.
Which States Require It?
The following states demand that suppliers, subcontractors, and contractors file a Notice of Intent to Lien:
● North Dakota
In Florida and the other states that remain, sending a notice of intent to lien is optional. Even though they are not required to do so, contractors who reside in these states should still strongly consider submitting a notice of intent to lien to safeguard the right to payment.
Preparing Construction Preliminary Notices to Owner and NOI Is a Breeze with the i-Lien Software
Even if your state doesn’t mandate it, the general legal advice is to file both a preliminary notice to the owner and an NOI with a construction notice. It gives the property owner ample notice that you intend to use every legal method to recoup the debt.
You must provide the proper paperwork in the correct format to avoid losing your legal right to make a mechanic’s claim.
The good news is that i-Lien Software Golden Omega makes it a breeze to prepare Construction Preliminary Notices to Owner and Notice of Intent to Lien.
You no longer need to spend hours getting your construction mechanic’s lien forms right. The i-Lien Software automates and streamlines the process of creating construction lien notices & mechanic’s lien documents to save time, safeguard your rights, and help you get paid quickly!
Mechanic’s lien rights have become a popular jargon in the construction industry. They’re powerful tools that contractors, subcontractors, labor/material suppliers, and other project participants can use to protect themselves from the risk of not being paid for services rendered.
However, many persons in the construction industry remain unaware of how construction liens work or how to enforce their lien rights in a worst-case scenario.
Hence, in this article, we’ll walk readers through the basics of lien rights and factors you need to consider before the construction begins, during, and after it ends. Moreover, we’ll share how to establish your lien rights and five valuable tips to preserve them.
Lien rights refer to a contractor’s, subcontractor’s, or supplier’s authority to file a mechanic’s lien against property owners legally. It’s a means of enforcing payment for work performed or rendered services in the event of prolonged delays or reluctance to pay.
In other words, lien rights provide a form of security against financial risks as they provide a legal claim on the property title and revoke the owner’s right to sell it or refinance the property, until they are paid what they are owed for the job performed.
Unpaid parties providinglabor and materials for a private commercial or residential project can also file a mechanic’s lien to protect their interest and eventually receive payment from the property owner by perfecting their claim in court. In layman’s terms, enforcing your lien’s rights is equivalent to placing a wheel clamp on the property on which you’ve just completed work. .
Mechanic’s liens can also enforce a lawsuit that could prompt property owners to pay more than what they owe, depending on the damages caused to unpaid parties during the period, such as project losses, failed loan payments, etc.
However, to establish your lien rights, you must be highly proactive and do your due diligence to ensure you’re well prepared by providing the property owner and all parties involved in the project with a Preliminary Notice to Owner; without one being provided or filed, you cannot establish your Lien Rigts to begin with. Read further…
As with anything involving courts and legal proceedings, you must adhere to certain rules and regulations. In most states, you must provide the owner with a preliminary notice outlining all the parties involved in the job and the total amount owed for the project.
The Mechanic’s Lien will be filed with the county where the property is located if the property owner does not pay the full amount by the deadline, ranging from a few weeks to a whole year following completion, depending on the state.
The Preliminary Notice to Owner must be sent days so many days in advance or within the timeline provided by each State when providing labor or materials. The Preliminary Notice is to be sent to all the parties involved in the job besides the property owner.
Some states require Preliminary Notices to be sent during the project or following completion, such as Arizona (20 days after starting), Arkansas (75 days before completion), and Indiana (60/90 days after completion). Moreover, it’s also smart to send a Preliminary Notice to establish your Lien Rights even if your State doesn’t require one at all or requires one in certain circumstances. States with these conditions include Texas, Hawaii, Nebraska, Idaho, and Pennsylvania.
After sending the notice, you need to preserve your Lien Rights by following strict deadlines and not missing out on tasks or documentation. Otherwise, you could lose your Lien Rights.
The following are some valuable tips you can use to preserve your Lien Rights to ensure you’re paid what you’re owed for work performed or services rendered:
The last thing you want is to have relevant information missing from your Mechanic’s Lien. Remember, judges are instructed to review these documents carefully and identify, invalidate, and even scrutinize any inaccuracies. Hence, you need to ensure the Mechanic’s Lien contains precise information related to the project type, property owner, contractor, licensing information, lender, bond, if applicable, etc.
Preparing multiple contracts is among the best strategies you can use to preserve your Lien Rights. The process involves drafting separate purchase orders and labor contracts with one master contract so you can file multiple Mechanic’s Lien claims.
When filing a Mechanic’s Lien claim, make sure you pay attention to the property’s description and remove any bare land that may not be a part of your project to ensure the courts enforce your contract. This is one of many loopholes owners try to exploit to delay or refuse payment.
To preserve your Lien Rights before beginning work, make sure the owner is aware you’re the contractor working on the project, especially if you don’t have a direct contract. Ideally, you should send Notice to the Owner at least 45 days before procuring labor or materials for the job site.
Most Lien Release forms have through dates that free owners of any rights contractors, suppliers, or other unpaid parties have up over them during the lien period. So, before you sign it, make sure you check the amount on the form and ensure it matches your calculations. The last thing you want is to sign a document without reading the fine print first.
As mentioned earlier, you can’t establish and preserve your lien rights unless you issue a pre-lien notice to all responsible property owners. Moreover, you need to ensure your Preliminary Notice is drafted correctly as per your State’s laws and delivered timely.
Therefore, there’s little margin for error, as even the smallest mistakes could stop you from getting paid what you’re owed.
i-Lien is a game-changing software solution designed to help automate and authenticate the Preliminary Notice drafting process. The solution has been integrated with different State laws and regulations.
Hence, you can save hours of research and avoid any costly errors. i-Lien also enables you to create a wide array of other legally-binding documents, Lien Warning Notices, Waivers and Releases, , Commencement Notices, and more.
So, get in touch with our team and explore what our innovative mechanic’s liens solution has to offer.READ MORE