Bill Text: MS HB1283 | 2013 | Regular Session | Introduced
Bill Title: Liens; provide for the enforceability of mechanic's and materialmen's liens.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2013-02-05 - Died In Committee [HB1283 Detail]
Download: Mississippi-2013-HB1283-Introduced.html
MISSISSIPPI LEGISLATURE
2013 Regular Session
To: Judiciary A
By: Representative Busby
House Bill 1283
AN ACT TO PROVIDE FOR THE ENFORCEABILITY OF MECHANIC'S AND MATERIALMEN'S LIENS; TO REQUIRE THE FILING OF A STATEMENT REGARDING A LIEN; TO REQUIRE WRITTEN NOTICE TO OWNERS THAT A LIEN MAY BE INSTITUTED IF PAYMENT IS NOT MADE; TO SPECIFY PERSONS DEEMED NOT TO BE AN ORIGINAL CONTRACTOR; TO REQUIRE A PRE-LIEN NOTICE AND PROVIDE FOR THE CONTENTS OF SUCH NOTICE; TO AMEND SECTIONS 85-7-131, 85-7-133 AND 85-7-135, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Any person who shall, under oral or written contract with the owner of any tract or piece of land, or who shall as a claimant as defined under Section 5 of this act perform labor, furnish material or lease or rent equipment used on such land for the erection, alteration or repair of any building, improvement or structure thereon or perform labor in putting up any fixtures, machinery in, or attachment to any such building, structure or improvements; or who shall plant any tree, vines, plants or hedge in or upon such land; or who shall build, alter, repair or furnish labor, material or lease or rent equipment used on said land for buildings, altering or repairing any fence or footwalk in or upon such land, or any sidewalk in any street abutting such land, shall have a lien upon the whole of said tract or piece of land, the buildings and appurtenances. Such liens shall be preferred to all other liens or encumbrances which may attach to or upon such land, buildings or improvements or either of them subsequent to the commencement of such building, the furnishing or putting up of such fixtures or machinery, the planting of such trees, vines, plants or hedges, the building of such fence, footwalk or sidewalks, or the making of any such repairs or improvements and according to the time of their filing; and such lien shall follow said property and each and every part thereof, and be enforceable against the property wherever the same may be found, and compliance with the provisions of this act shall constitute constructive notice of the claimant's lien to all purchasers and encumbrancers of such property or any part thereof, subsequent to the date of the furnishing of the first item of material or the date of the performance of the first labor or the first use of the rental equipment on such land.
SECTION 2. Any person claiming a lien as provided in this act shall file in the office of the chancery clerk of the county in which the land is situated a statement setting forth the amount claimed and the items thereof as nearly as practicable, the names of the owner, the contractor, the claimant and a legal description of the property subject to the lien, verified by affidavit. Such statement shall be filed within one hundred twenty (120) days after the date upon which material or equipment used on such land was last furnished or labor last performed under contract as aforesaid; and if the claim be for the planting of any trees, vines, plants, or hedge, such statement shall be filed within one hundred twenty (120) days from such planting. Immediately upon the receipt of such statement the chancery clerk shall enter a record of the same against the tract index and in a book kept for that purpose, along with Notices of Construction Liens pursuant to Section 85-7-133, which may be ruled off into separate columns, with headings as follows: "When Filed," "Name of Owner," "Name of Claimant," "Amount Claimed," "Legal Description of Property" and "Remarks," and the clerk shall make the proper entry in each column.
SECTION 3. No lien arising under the provisions of this act which affects property presently occupied as a dwelling by an owner shall be enforceable unless, prior to the first performance of labor or the first furnishing of materials or equipping by the lien claimant, the original contractor, subcontractor, laborer or materialman shall have provided to the owners a written notice which shall include substantially the following language:
"NOTICE TO OWNER
You are hereby notified that any person performing labor on your property or furnishing materials or equipment for the construction, repair or improvement of your property will be entitled to a lien against your property if he is not paid in full, even though you may have paid the full contract price to your contractor. This could result in your paying for labor and materials or equipment twice. This lien can be enforced by the sale of your property. To avoid this result, you may demand from your contractor lien waivers from all persons performing labor or furnishing materials or equipment for the work on your property. You may withhold payment to the contractor in the amount of any unpaid claims for labor or materials or equipment. You also have the right to demand from your contractor a complete list of all laborers and material or equipment suppliers under your contract, and the right to determine from them if they have been paid for labor performed and materials or equipment furnished."
SECTION 4. Any person who performs labor directly for or furnishes material or equipment directly to an owner of property used by the owner or a co-owner as a dwelling, under circumstances which an owner is liable directly to a laborer or supplier, shall not be deemed an original contractor, laborer or materialman or equipment supplier for purposes of this act.
SECTION 5. (1) For the purposes of this act:
(a) "Claimant" means a person, other than an original contractor, that is entitled or may be entitled to a lien.
(b) "Person" means any individual, corporation, partnership, unincorporated association or other entity.
(2) (a) Prior to the filing of a lien statement pursuant to this act, but no later than seventy-five (75) days after the date of supply of material, services, labor or equipment in which the claimant is entitled or may be entitled to lien rights, the claimant shall send to the last known address of the original contractor and owner of the property a pre-lien notice pursuant to the provisions of this section.
(b) The provisions of this section shall not be construed to require:
(i) A pre-lien notice with respect to any retainage held by agreement between an owner, contractor or subcontractor; or
(ii) More than one (1) pre-lien notice during the course of a construction project in which material, services, labor or equipment is furnished.
A pre-lien notice sent in compliance with this section for the supply of material, services, labor or equipment that entitles or may entitle a claimant to lien rights shall protect the claimant's lien rights for any subsequent supply of material, services, labor or equipment furnished during the course of a construction project.
(c) The pre-lien notice requirements shall not apply to a claimant:
(i) Whose claim relates to the supply of material, services, labor or equipment furnished in connection with a residential project. For the purposes of this subparagraph, the term "residential" shall mean a single family or multifamily project of four (4) or fewer dwelling units; or
(ii) Whose aggregate claim is less than Two Thousand Five Hundred Dollars ($2,500.00).
(d) The pre-lien notice shall be in writing and shall contain, but not be limited to, the following:
(i) A statement that the notice is a pre-lien notice;
(ii) The complete name, address and telephone number of the claimant or the claimant's representative;
(iii) The date of supply of material, services, labor or equipment;
(iv) A description of the material, services, labor or equipment;
(v) The name and last known address of the person who requested that the claimant provide the material, services, labor or equipment;
(vi) The address, legal description or location of the property to which the material, services, labor or equipment has been supplied;
(vii) A statement that the dollar amount of the material, services, labor or equipment furnished or to be furnished exceeds Two Thousand Five Hundred Dollars ($2,500.00); and
(viii) The signature of the claimant or the claimant's representative.
(e) The pre-lien notice requirements shall not apply to a claimant whose claim relates to the supply of material, services, labor or equipment furnished in connection with a residential project. For the purposes of this paragraph, the term "residential" shall mean a single family or multifamily project of four (4) or fewer dwelling units.
(f) A rebuttable presumption of compliance with paragraph (a) of this subsection shall be created if the pre-lien notice is sent as follows:
(i) Hand delivery supported by a delivery confirmation receipt;
(ii) Certified mail, return receipt requested. Notice by certified mail, return receipt requested, shall be effective on the date mailed.
(g) The claimant may request in writing that the request to be sent in the manner as provided in paragraph (f) of this subsection and that the original contractor provide to the claimant the name and last known address of the owner of the property. Failure of the original contractor to provide the claimant with the information requested within five (5) days from the date of receipt of the request shall render the pre-lien notice requirement to the owner of the property unenforceable.
(h) At the time of the filing of the lien statement, the claimant shall furnish to the chancery clerk a notarized affidavit verifying compliance with the pre-lien notice requirements of this section. Any claimant who falsifies the affidavit shall be guilty of a misdemeanor, and upon conviction thereof may be punished by a fine of not more than Five Thousand Dollars ($5,000.00), or by imprisonment in the county jail for not more than thirty (30) days, or by both such fine and imprisonment.
(i) Failure of the claimant to comply with the pre-lien notice requirements of this section shall render that portion of the lien claim for which no notice was sent invalid and unenforceable.
(3) (a) Ten (10) days prior to the filing of a lien statement pursuant to this act for a residential property, the claimant shall send to the last known address of the original contractor and owner of a residential property a pre-lien notice pursuant to the provisions of this section. For the purposes of this paragraph, the term "residential" shall mean a single family or multifamily project of four (4) or fewer dwelling units.
(b) The provisions of this section shall not be construed to require:
(i) A pre-lien notice with respect to any retainage held by agreement between an owner, contractor or subcontractor; or
(ii) More than one (1) pre-lien notice during the course of a construction project in which material, services, labor or equipment is furnished.
A pre-lien notice sent in compliance with this section for the supply of material, services, labor or equipment that entitles or may entitle a claimant to lien rights shall protect the claimant's lien rights for any subsequent supply of material, services, labor or equipment furnished during the course of a construction project.
(c) The pre-lien notice requirements shall not apply to a claimant whose aggregate claim is less than Two Thousand Five Hundred Dollars ($2,500.00).
(d) The pre-lien notice shall be in writing and shall contain, but not be limited to, the following:
(i) A statement that the notice is a pre-lien notice;
(ii) The complete name, address and telephone number of the claimant or the claimant's representative;
(iii) The date of supply of material, services, labor or equipment;
(iv) A description of the material, services, labor or equipment;
(v) The name and last known address of the person who requested that the claimant provide the material, services, labor or equipment;
(vi) The address, legal description or location of the property to which the material, services, labor or equipment has been supplied;
(vii) A statement that the dollar amount of the material, services, labor or equipment furnished or to be furnished exceeds Two Thousand Five Hundred Dollars ($2,500.00); and
(viii) The signature of the claimant or the claimant's representative.
(e) A rebuttable presumption of compliance with paragraph (a) of this subsection shall be created if the pre-lien notice is sent as follows:
(i) Hand delivery supported by a delivery confirmation receipt;
(ii) Certified mail, return receipt requested. Notice by certified mail, return receipt requested, shall be effective on the date mailed.
(f) The claimant may request in writing that the request to be sent in the manner as provided in paragraph (e) of this subsection and that the original contractor provide to the claimant the name and last known address of the owner of the property. Failure of the original contractor to provide the claimant with the information requested within five (5) days from the date of receipt of the request shall render the pre-lien notice requirement to the owner of the property unenforceable.
(g) At the time of the filing of the lien statement, the claimant shall furnish to the chancery clerk a notarized affidavit verifying compliance with the pre-lien notice requirements of this section. Any claimant who falsifies the affidavit shall be guilty of a misdemeanor, and upon conviction thereof, may be punished by a fine of not more than Five Thousand Dollars ($5,000.00), or by imprisonment in the county jail for not more than thirty (30) days, or by both such fine and imprisonment.
(h) Failure of the claimant to comply with the pre-lien notice requirements of this section shall render that portion of the lien claim for which no notice was sent invalid and unenforceable.
SECTION 6. The written notice required in Section 5 of this act shall be satisfied by furnishing one (1) notice during the course of construction or during the course of the business transaction in which the labor or materials or equipment are furnished.
SECTION 7. Section 85-7-131, Mississippi Code of 1972, is amended as follows:
85-7-131. Except as
otherwise provided in Sections 1 through 6 of House Bill No._____, 2013 Regular
Session, every house, building, water well or structure of any kind, and
any fixed machinery, gearing or other fixture that may or may not be used or
connected therewith, railroad embankment, erected, constructed, altered or
repaired, and every subdivision of property or subdivided property which
required services, designs or construction in designing or laying out of
streets or subdividing or construction of streets, sewerage, water or other
utilities to be furnished by the said subdivision or by the various owners or
holders or creators of said subdivision or subdivided property or individual
lot or lots in connection therewith, whether inside of a municipality or
outside thereof, shall be liable for the debt contracted and owing, for labor
done or materials furnished or equipment rented or leased, or architectural
engineers' and surveyors' or contractors' service rendered about the erection,
construction, alteration or repairs thereof; and debt for such services or
construction shall be a lien thereon. The architects, engineers, surveyors,
laborers, rental or lease equipment suppliers and materialmen and/or
contractors who rendered services and constructed the improvements shall have a
lien therefor. Further, as to oil and gas wells, the operator thereof shall
have such a lien upon the interest of each nonoperator owner of an interest in
the mineral leasehold estate for such nonoperator's proportionate part of such
labor, material and services rendered by the operator or for the operator's
account * * * on
behalf of each nonoperator in the drilling, completion, recompletion, reworking
or other operations of such oil and gas well. If such house, building,
structure, or fixture be in a city, town or village, the lien shall extend to
and cover the entire lot of land on which it stands and the entire curtilage thereto
belonging; or, if not in a city, town or village, the lien shall extend to and
cover one (1) acre of land on which the same may stand, if there be so much, to
be selected by the holder of the lien. If the structure be a water well, the
lien shall extend only to all pumps, pipes, equipment therein and all water
well appurtenances. If the structure be an oil or gas well, the lien shall
extend to the nonoperator's interest in the mineral estate and the fixtures and
equipment in the producing unit assigned such well by the State Oil and Gas
Board. If the structure be a railroad or railroad embankment, the lien shall
extend to and cover the entire roadbed and right-of-way, depots and other
buildings used or connected therewith. If the services of the architect,
surveyor, engineer, laborers, materialmen, rental or lease equipment suppliers
or of the contractors shall be upon the whole subdivision, the lien shall
extend to and cover the entire subdivision; but if a part only of the land is
subdivided and laborers', materialmen's, rental or lease equipment suppliers',
architects', surveyors' or engineers' services are required and contractors are
employed, then the lien shall extend to only that portion of said property upon
which the services were required or upon which or in connection with which the
work was done or the materials or rental or lease equipment were furnished.
Such lien shall take effect as to purchasers or encumbrancers for a valuable
consideration without notice thereof, only from the time of commencing suit to
enforce the lien, or from the time of filing the contract under which the lien
arose, or notice thereof, in the office of the clerk of the chancery court, as
hereinafter stated; delivery of material to the job is prima facie evidence of
its use therein, and use of water from a water well is prima facie evidence of
acceptability of the well. In the case of oil and gas wells, such lien shall
take effect as to purchasers or encumbrancers for a valuable consideration
without notice thereof, only from the time of filing notice of such lien as
provided by Section 85-7-133.
SECTION 8. Section 85-7-133, Mississippi Code of 1972, is amended as follows:
85-7-133. Each of the several chancery clerks of this state shall provide in his office, as a part of the land records of his county, a record entitled "Notice of Construction Liens" wherein notices under Section 85-7-131 and Sections 1 through 6 of House Bill No._____, 2013 Regular Session, shall be filed and recorded, and such liens, as provided hereunder, shall not take effect unless and until some notation thereof shall be filed and recorded in said record showing a description of the property involved, the name of the lienor or lienors, the date of filing, if and where suit is filed, and if and where contract is filed or recorded.
SECTION 9. Section 85-7-135, Mississippi Code of 1972, is amended as follows:
85-7-135. Except as otherwise provided in Sections 1 through 6 of House Bill No._____, 2013 Regular Session, the lien declared in Section 85-7-131 shall exist only in favor of the person employed, or with whom the contract is made to perform such labor or furnish such materials or furnish such rental or lease of equipment or render such architectural service, and his assigns, and when the contract or employment is made by the owner, or by his agent, representative, guardian or tenant authorized, either expressly or impliedly, by the owner.
SECTION 10. This act shall take effect and be in force from and after July 1, 2013.
