Bill Text: MO HB2058 | 2010 | Regular Session | Introduced
Bill Title: Establishes procedures for asserting a mechanic's lien against certain residential real property
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2010-07-12 - Delivered to Secretary of State (G) [HB2058 Detail]
Download: Missouri-2010-HB2058-Introduced.html
SECOND REGULAR SESSION
95TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE DIEHL.
4976L.01I D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To amend chapter 429, RSMo, by adding thereto three new sections relating to mechanic's liens, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Chapter 429, RSMo, is amended by adding thereto three new sections, to be known as sections 429.021, 429.022, and 429.023, to read as follows:
429.021. 1. All persons providing labor, materials, or services for the construction or improvement of residential real property, other than the repair, remodeling, or similar improvement of an existing, owner-occupied residential property of four units or less under section 429.013 who seek to retain the right to assert a mechanic's lien against such residential real property shall record, or be accurately identified in, a public notice as provided in this section which shall be recorded with the recorder of deeds for each county in which the residential real property is located.
2. As used in this section and in section 429.022, the term "residential real property" means any parcel of real estate, improved or unimproved, that is intended to be or is used for the construction of residential structures and related improvements or improvements which support the residential use of the land and which residential structures are intended to be owned by the inhabitant, including any residential dwelling of four units or less and residential condominiums, townhouses, and cooperatives regardless of the number of units and including mixed-use or planned unit developments regardless of the ratio of residential structures to other uses. Residential real property also includes any streets, sidewalks, utility services, improved common areas, or other facilities which are or will be constructed for the use or benefit of the inhabitants of residential real property.
3. Every original contractor or person identified in subsection 1 of section 429.015 who seeks to retain the right to assert a mechanic's lien against such residential real property shall record, or be accurately identified in, a notice of intent to perform which will be effective to initiate lien rights for any person identified in such notice as of the later of the date such notice is recorded or the date such person identified in the notice commences performing or providing labor, materials, or services intended for the improvement of the property. Any person recording a notice of intent to perform shall also post a copy of such notice on or immediately adjacent to the residential real property and shall provide a copy of, or reasonable access to, such notice to every person identified in such notice, provided, however, that the failure to post such notice or provide such notice to each person identified therein shall not defeat the lien rights of any person identified in such notice and it shall not relieve any person from the requirement to record notice or be identified in a recorded notice.
4. Every subcontractor or supplier who is not an original contractor who seeks to retain the right to assert a mechanic's lien against such residential real property and who is not accurately identified in a previously recorded notice of intent to perform shall record, or be accurately identified in, a notice of commencement which will be effective to initiate lien rights for any person identified in such notice as of the later of ten days prior to the recording of such notice or the date such person identified in the notice commences performing or providing labor, materials, or services intended for the improvement of the property. Any person recording a notice of commencement shall provide a copy of, or reasonable access to, such notice to every person identified in such notice, provided, however, that the failure to provide such notice to each person identified therein shall not defeat the lien rights of any person identified in such notice and shall not relieve any person from the requirement to record notice or be identified in a recorded notice.
5. Notwithstanding any provision of this chapter, a notice of commencement recorded after a conveyance of the residential real property to a third party acting in good faith who provides fair value to the seller will be not effective to preserve lien rights as to that residential real property, but such person recording such notice of commencement will not waive any right to recover the charges for such labor, materials, or services from the seller of the residential real property and will, further, be entitled to recover treble the charges for such labor, materials, or services from such seller upon proving that the seller had actual knowledge that labor, materials, or services were provided by such person, that such labor, materials, or services enhanced the value of the property, and that the seller acted in bad faith and for the purpose of not paying such charges.
6. Any recorded notice shall comply with section 59.310 and shall contain the following information:
(1) The name and, if known, the address of the owner of the residential real property, who shall be designated as the grantor;
(2) The name, address, telephone number, email address, if any, and the facsimile number, if any, of the person recording the notice, who shall be designated as the grantee;
(3) The legal description of the residential real property; and
(4) The name, address, telephone number, email address, if known, and facsimile, if known, of every person with whom the grantee has contracted to provide labor, materials, or services for the improvements to the residential real property.
In addition, any recorded notice may contain the name and, to the extent known by the grantee, the address, email address, telephone number, and facsimile number of every person who is providing or will provide labor, materials, or services for the improvement of the residential real property who do not have a contractual relationship with the grantee and who are not identified in a previously recorded notice to the knowledge of the grantee. An owner of residential real property, an agent thereof, or any person having a security interest in the property may record a notice of intent to perform for the purpose of complying with this section.
7. Any person failing to record a notice or any person whose name is not accurately identified in any recorded notice will be deemed to have waived any rights to assert a lien under this chapter. A recorded notice accurately identifies a person so long as the identifying information in the notice is neither deceptively similar to another person reasonably likely to provide labor, materials, or services for the improvement of residential real property nor so deficient in information as to make it unreasonably difficult to identify such person. Any person who provides labor, materials, or services prior to the effective date of a recorded notice accurately identifying himself or herself will be deemed to have waived any rights to assert a lien under this chapter only as to the labor, materials, or services provided prior to the effective date of the recorded notice accurately identifying himself or herself, but any original contractor or other person who is determined to be an original contractor shall have lien rights only for labor, materials, or services after a recorded notice accurately identifying such person is filed, regardless of the type of notice recorded. This section is only intended to limit what claims for labor, service, and materials may be enforced in an action under this chapter, and nothing herein shall affect any other remedies afforded by law, including, but not limited to, remedies available for an action on the contract for a claim of undue enrichment or for other common law or equitable actions.
8. A recorded notice shall expire two years after the date on which it is recorded unless extended by the recording, prior to the expiration of such two years, of a continuation notice which shall contain the information set forth in subsection 4 of this section and shall further include the book and page number of any prior recorded notice or continuation notice which is to be continued in effect. Notwithstanding any provision of this section, chapter, or any other enactment to the contrary, the failure to record a continuation notice prior to the expiration of any previously recorded notice will constitute the waiver of any liens rights as to any residential real property described in such continuation notice unless a lien statement under section 429.080 has been filed with respect to such residential real property.
429.022. 1. A person providing labor, services, or materials for the improvement of residential real property may waive his or her right to assert a mechanic's lien by executing a partial or full waiver of lien rights, whether conditioned upon receipt of payment or unconditional, provided that a waiver shall not be deemed or interpreted to waive or release lien rights in exchange for a payment of less than the amount claimed due or arising subsequent to the date on which the waiver of lien rights is executed unless such waiver is an unconditional, final lien waiver in compliance with this section.
2. An unconditional, final lien waiver is a complete and absolute waiver of any lien rights on the residential real property described in the lien waiver, including any rights which might otherwise arise from remedial or additional labor, services, or materials provided to the residential real property or which might benefit the residential real property under an initial agreement or a supplemental agreement entered into by the same parties prior to the execution of the unconditional, final lien waiver.
3. An unconditional, final lien waiver shall only be valid if it contains a heading, title, or label in at least twelve- point bold type stating "Unconditional Final Lien Waiver" and shall further include the following information, to the extent applicable:
(1) The name, address, and telephone number of the person executing the unconditional, final lien waiver;
(2) The legal description or address of the property for which the lien waiver applies;
(3) A statement that all work, other than remedial or additional work, has been completed or identifying what work must be completed, the cost or charges for that work, and the agreed means for paying such charges;
(4) An acknowledgment by the person executing the unconditional, final lien waiver that all rights granted under this chapter are waived as to the residential real property described in the unconditional, final lien waiver for all labor, services, or materials provided to such property prior to the date of such unconditional, final lien waiver and for such labor, services, and materials thereafter provided for remedial or additional work or work otherwise reasonably related to the work to be completed.
4. A person executing an unconditional, final lien waiver for less than full consideration shall still be bound by such waiver as it relates to any rights arising under this chapter, but such waiver shall not constitute a release of any other claim, remedy, or cause of action.
5. An unconditional, final lien waiver is valid under this chapter notwithstanding any nonperformance, failure of performance, or fraud not attributable to all persons relying on such unconditional, final lien waiver.
6. A person recording or identified in a recorded notice of intent to perform or a recorded notice of commencement who knowingly refuses, or who knowingly fails within ten business days following a written request therefor, to execute an unconditional, final lien waiver for such property and who either has provided no labor, materials, or services for or benefitting such property or has been paid in full for such labor, materials, or services for or benefitting such property commits the crime of lien fraud, punishable under this section as a class B misdemeanor. A person recording or identified in a recorded notice of intent to perform or a recorded notice of commencement who intentionally refuses, or who intentionally fails within ten business days following a written request therefor, to reasonably identify the labor, materials, or services provided for or benefitting such property and the amount claimed owed, less credit for any payments previously received, for such labor, materials, or services commits the crime of lien fraud, punishable under this section as a class C misdemeanor.
7. In the alternative to this section, a lien shall not attach to residential real property on behalf of any person recording or identified in a notice of intent to perform or a notice of commencement if, prior to the filing of a lien statement under section 429.080, the owner has procured from a surety company authorized to do business in this state a bond in an amount not less than one and one-half times the charges claimed by such person or persons to be due or to become due for labor, materials, or services provided or to be provided to the owner for the construction or improvement of the residential real property. Such bond shall obligate the surety company, to the extent of the sum of the bond, to pay all sums determined to be owed for the labor, materials, and services provided or to be provided by the persons claiming under the bond, which determination shall be made by either a written agreement of the owner and such person or persons or a final decision of a court. The owner shall furnish on request a true copy, at no more than actual cost of reproduction, to such person or persons and shall be liable to the requesting person for any damages caused by failure, without justification, to furnish a copy.
8. A person shall not recover under the bond provided for in this section unless such person:
(1) Institutes suit against both the surety and the party-in-privity from whom the payment was due within one year after the completion of the provision of labor, materials, and services for the construction or improvement of the residential real property or within such longer time permitted by the terms of the bond; and
(2) Pleads and proves in such suit that such person is identified in a recorded notice of intent to perform or a recorded notice of commencement describing the residential real property; and
(3) Pleads and proves in such suit that such person has not violated the provisions of subsection 6 of this section.
9. A person claiming under the bond may proceed directly against the surety and the party-in-privity without bringing a judicial proceeding against the owner or an original contractor, unless required by subdivision (1) of subsection 8 of this section, and without further complying with the notice and filing procedures of this chapter. In any judicial proceeding brought on the bond, the court may award to the prevailing party or parties such reasonable attorney's fees and court costs as the court determines appropriate, and may apportion such award, if any, among the nonprevailing parties in the discretion of the court. However, the total liability of the surety shall not exceed the amount of the bond.
429.023. 1. A lien does not attach to the real estate on behalf of any claimant claiming through a particular original contractor if the owner or the original contractor has procured from a surety company authorized to do business in this state a bond meeting the requirements of this section and has recorded a notice of surety bond.
2. The bond shall obligate the surety company, to the extent of the sum of the bond, to pay all sums due to construction lien claimants other than the original contractor for services and materials supplied under the contract under which the lien would otherwise arise.
3. The sum of the bond shall not be less than one hundred fifty percent of all mechanics' lien claims filed prior to the recorded notice of the bond and shall only substitute collateral as set out herein to those mechanics' liens filed prior to the recorded notice of the bond.
4. The person procuring the bond shall furnish on request a true copy at cost of reproduction to any claimant and is liable to the requesting claimant for any damages caused by failure, without justification, to furnish a copy.
5. A claimant shall not recover under the bond provided for in this section unless he or she:
(1) Institutes suit against the surety within one year after the completion of his or her performance or within any longer period of time permitted by the terms of the bond; and
(2) If he or she is a claimant not having a direct contract relationship with the original contractor, within ninety days after completion of his or her performance gives the original contractor written notice of the amount due.
6. A claimant having a claim under the bond may proceed directly against the surety. A judicial proceeding on the bond may be maintained separately from and without bringing a judicial proceeding against the original contractor and without complying with the notice and recoding procedures of sections 429.010 to 429.360.
7. The obligation of a surety under this section is not affected by any change or modification of the contract between the original contractor and the owner, but the total liability of the surety shall not exceed the sum of the bond.
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