Tennessee notice of nonpayment, the one that has to go out every month

Remote contractor is a defined word and it decides whether this is yours

T.C.A. 66-11-101(14) says a remote contractor is a person, including a land surveyor and a person licensed to practice architecture or engineering, who provides work or labor or who furnishes material, services, equipment or machinery in furtherance of any improvement under a contract with a person other than an owner. The last seven words are the test. If your contract is with somebody who is not the owner, you are a remote contractor.

The other side of the line is 66-11-101(12). A prime contractor is a person other than a remote contractor who supervises or performs the work or furnishes the material, provided that the person is in direct privity of contract with an owner or the owner's agent. A prime contractor owes no notice of nonpayment, because 66-11-145 addresses remote contractors only.

So this is the subcontractor's and the supplier's sheet, and it reaches further down than people expect. A second tier sub is a remote contractor. A supplier selling to a sub is a remote contractor. An engineer engaged by the general rather than by the owner is a remote contractor by name in the definition.

The clock runs per month, which is the part that catches people

Read subsection (a) slowly. The notice is served within ninety days of the last day of each month within which work or labor was provided or materials, services, equipment, or machinery furnished and for which the remote contractor intends to claim a lien. Each month has its own last day and its own ninety days hanging off it.

That means a job that runs March, April and May unpaid does not have one deadline in the summer. It has three, and they expire one at a time. A notice served in July covers what July's ninety day window still reaches and does nothing for a month whose window has already closed.

The practical handling is to treat it as a monthly routine rather than a reaction. On the first working day of a month, look at what went unpaid last month, and if anything did, serve the notice for that month. Ninety days of slack is generous, and it is generous in a way that makes it very easy to let three months slide at once.

The condition on the whole duty is in the same sentence: the notice is owed if its account is, in fact, unpaid. A month you were paid for is not a month you owe a notice for.

Serve it on the owner and on the prime contractor

Subsection (a) names both: the owner and prime contractor in contractual privity with the remote contractor. The form itself is set as two columns for that reason, the prime contractor's block on the left under the bracketed words contractor contracting w slash owner, and the owner's block on the right.

This is where a notice most often falls short in practice. The person you talk to every day is the one who hired you, and sending it to that person alone leaves out whichever of the owner or the prime is not them. On a job where you are a second tier sub, the person who hired you may be neither.

The section says serve and does not prescribe a method inside its own text, so the sensible reading is to serve it in a way you can prove afterwards. What you keep is the proof, not the notice: a copy with a date on it and something showing it reached both addresses.

One to four family residential work is excepted, and here is why

Subsection (a) excepts one-family, two-family, three-family and four-family residential units from the notice duty. Read on its own that looks like a gift. It is not. It is a consequence of a different section.

T.C.A. 66-11-146(a)(2) says that notwithstanding any other law to the contrary, and except as provided in subsection (b), on contracts to improve residential real property a lien or right of lien on the property shall exist only in favor of a prime contractor. Residential real property there is defined in 66-11-146(a)(1) as an owner occupied building of one dwelling unit, or of two, three or four units where the owner lives in one of them as a principal residence.

So on that work a remote contractor has no lien to preserve, which is why there is no notice to serve to preserve it. The exception is not permission to skip the paperwork and keep the lien; it is the absence of the lien.

66-11-146(b)(2) carries the exception to the exception. Where the owner of residential real property and the general contractor are one and the same person, or a person controls entities owning the property and a general contracting business, a lien exists only in favor of the lienors in contractual privity with the owner or general contractor. On an owner builder job, the people in direct contract with that owner builder are back in.

This is not the notice of lien, and subsection (c) says so in one line

Subsection (c): a notice of nonpayment provided in accordance with this section shall not be considered notice required by section 66-11-115. One sentence, and it is there because the two documents look alike enough to be confused and are not interchangeable.

66-11-115(a) is the lien itself. Every remote contractor shall have the lien provided by this part, provided that the remote contractor satisfies all of the requirements set forth in 66-11-145, if applicable, and within the time provided for recording sworn statements set out in 66-11-112(a), serves a notice of lien in writing on the owner. So 145 is a precondition of 115, not a substitute for it.

The time in 66-11-112(a) is no later than ninety days after the date the improvement is complete or is abandoned. That is one deadline for the whole job, measured from the end of the work, and it sits on top of the monthly notices rather than replacing any of them. 66-11-115(b) then keeps the lien alive for ninety days from the date the notice of lien was served, and until the final termination of any enforcement suit properly brought under 66-11-126 inside that period.

Three different ninety day counts in one chapter, measured from three different things. That is the reason to write the dates down rather than carry them.

What the statute says the notice has to contain

Subsection (a) lists five things and the form prints all five. Your name and the address the owner and the prime contractor may send communications to. A general description of the work, labor, materials, services, equipment, or machinery provided. The amount owed as of the date of the notice.

Then a statement of the last date the claimant performed work and slash or provided labor or materials, services, equipment, or machinery in connection with the improvements. And last, a description sufficient to identify the real property against which a lien may be claimed.

Sufficient to identify is the phrase worth respecting on the fifth one. A street address is usually enough to identify a house and is often not enough on a subdivision or a multi building site where several parcels carry the same road name. The form has room for more than a street address and there is no penalty for using it.

The amount owed is stated as of the date of the notice, which is another consequence of the monthly rhythm. It is not a running total of the contract and it is not what you expect to be owed at the end.

One quiet benefit of having served it

66-11-112(a) carries a sentence that has nothing to do with your own filing and everything to do with being on a list. The owner shall serve thirty days' notice on prime contractors and on all of those lienors who have served notice in accordance with section 66-11-145, prior to the owner's transfer of any interest to a subsequent purchaser or encumbrancer for a valuable consideration.

Serving the notice of nonpayment therefore puts you among the people the owner has to warn before the property changes hands or gets encumbered. A remote contractor who never served one is not on that list and can find out about a sale afterwards.

That is a reason to serve the notice even in a month where you expect to be paid shortly. It costs a sheet of paper and it buys standing you cannot acquire retrospectively.

Where the words came from

Every word of the form on this page was sliced out of the statute text byte for byte. Nothing was retyped, because retyping is how a wrong word gets into a form and then stays there.

The build source is the Tennessee Code Annotated 66-11-145 published at codes.findlaw.com, current as of 2 January 2024. The key is the General Assembly's own enacting act, House Bill 1879 of the 105th General Assembly, the 2007 lien law rewrite, whose SECTION 44 deleted the old 66-11-145 and substituted the section that stands today. Across the prescribed form the two agree on 543 of 545 characters once blank lengths are collapsed.

The two differences are both punctuation and both belong to the code compiler rather than to the legislature: the current code cites Tennessee Code Annotated with a comma before the section number and the act does not, and the act ends the communications address blank with a full stop and the code does not. Outside the form, subsection (b) has moved one word in seventeen years, from performance of such remote contractor to performance of the remote contractor.

That key is stronger than the pairing of two commercial publishers used elsewhere on this site. A bill PDF filed in 2007 cannot have been copied from a 2024 code edition, and the code edition cannot have been copied from the bill, because it lost the two column layout the bill still shows. Both copies are parked in the repository beside each other so the comparison can be checked rather than taken on trust.

Tennessee publishes its own bills at capitol.tn.gov and that host does not answer this machine at all, so the act was read through the Internet Archive's copy of the same PDF. That is a network failure at the connection level rather than a block, and the archived bytes are the original ones.

Questions people ask

Once the job is running and you are getting paid on it, the paperwork that comes next is the waiver: see the Tennessee statutory lien waiver forms, and conditional vs unconditional lien waiver for which of the two to sign.