Mississippi State Lien Law Summary

REAL PROPERTY:

Registered architects, engineers, and surveyors; licensed con­tractors, and subcontractors; and laborers, material suppliers (includes suppliers of tools, appliances, machinery or equipment as well), and suppliers of rental or lease equipment; as long as they are providing labor, materials, etc. to the owner, general contractor or first-tier subcontractor. In addition, contractors and subcontractors must not be contracting with an unlicensed contractor or sub. NOTE ALSO that where a contractor or sub fails to pay their subs and supplier as required by their contract or purchase order, that contractor or sub loses their lien rights. [85-7-131, 85-7-403, 85-7-407; Schor at §25.01, 25.03[B]]

RESIDENTIAL PROPERTY:

A residential builder or remodeler must have a license in order to enforce any contract for building or remodeling, or to enforce a sales contract. Note that the term “residential builder” applies to a corporation, partnership or individual constructing or superintending construction of a residence for sale that is not more than 3 floors high and that the total cost exceeds $50,000. A “remodeler” is a corporation, partnership or individual who constructs or superintends the construction of improvements to an existing residence where the total cost of the improvements exceeds $10,000. NOTE that the Mississippi Supreme Court has ruled that, as long as the contractor is licensed at the time he or she brings the action to enforce the contract or lien, the claim or lien will not be barred. It is not recommended that one rely on this case, however, as there are other facts that may have led to that outcome. [73-59-9; Lutz Homes, Inc. v. Weston, 19 So.3d 60 (Miss. 2009)]

All laborers, subs, sub-subs and suppliers of materials to general or 1^st tier subs. Suppliers to suppliers are not covered. [31-5-51 and case law.]

NOTE that in order to even bid on a project, a contractor must have a certificate of responsibility. Any contract issued or awarded to a contractor without one is null and void. This also means that a subcontractor without a certificate will not be able to bring a claim on a public project or bond. The court has also ruled that a claimant who cleans sewer pipes is considered a subcontractor for purposes of the project, as it is considered ‘reconstruction, repair, maintenance or related work’ on the project and the claimant is therefore required to have a certificate of responsibility. One performing TV inspection of sewer pipes must have a certificate. If, however, more than half of the project is for work that does not require a certificate, then one is not required for the project. If the claimant does not have a certificate when one is required, then all obligations under the contract – including payment – are void. This also means that the payment bond will not cover the claim. A claim in quantum meruit may be allowed, however, and if successful, the bond may be required to cover it. [31-3-15; Ace Pipe Cleaning, Inc. v. Hemphill Const. Co., Inc., 134 So.3d 799 (Miss. 2014)]

Real property and the contract funds

The general contractor’s payment bond

All claimants who contract with someone other than the owner or general contractor, on all projects other than single-family residential construction. NOTE that on single-family residential construction projects, an owner will be protected against a lien to the extent the owner has paid the general contractor or design professional, but only to the extent of the payment actually made to the contractor or design professional, and only to the extent the owner has not received a pre-lien notice before the payment. [85-7-407]

A preliminary notice is not required.

To the contractor, or if there is no contractor, to the owner. Recommend giving it to both. Failing to provide the notice forfeits lien rights. [85-7-407]

Not applicable.

Within 30 days after the claimant’s first delivery of labor, services or materials to the property. [85-7-407]

Not applicable.

-Name, address and telephone number of the claimant;

-Name and address of each person at whose instance the labor, services or materials are being furnished;

-Name and location of the project;

-Description of the labor, services or materials being provided and, if known, the contract price or anticipated value of the labor, services or materials to be provided. [85-7-407, 85-7-433]

Not applicable.

Either by email with a confirmed receipt, registered or certified mail, or by statutory overnight delivery. [85-7-407]

Not applicable.

It is only required on single-family residential construction projects, and only by subcontractors, material suppliers and design professionals not in privity with the owner. [85-7-409]

An interim notice is not required.

Please contact Levy von Beck and Associates for information.

Not applicable.

At least ten days before filing a lien. [85-7-409]

Not applicable.

All claimants. Note that where payments are made in reliance on either lien waivers or sworn written statements of the contractor, the total of the liens will be limited to the unpaid contract price at the time the first notice of lien is filed.

NOTE that where the owner gives the contractor a written request by certified or registered mail or statutory overnight delivery, the contractor must furnish the owner a complete list of all subs and materials “within a reasonable time,” or the contractor will lose his or her lien rights. Upon written request from the contractor, the subcontractor also must provide a list of subs and suppliers to the contractor, or forfeit lien rights. (Note, however, that this does not apply to single-family residential construction.) [85-7-405; 85-7-407]

All claimants having con­t­ract with sub and not with gene­ral. [31-5-51]

(1) Clerk of chancery court in the county where the property is located.

(2) Owner, or if the owner’s address cannot be found, then to the contractor as agent of the owner. If the owner is an entity on file with the Secretary of State’s office, sending a copy of the claim of lien to the entity’s address or the registered agent’s address shall satisfy this requirement.

(3) General contractor or contractor’s registered agent, by all claimants who are not general contractors on the project. [85-7-131, 85-7-143, 85-7-405]

To the contractor and surety. [31-5-51]

Filed within 90 days after claimant’s last work, delivery, etc.; and sent to the owner and contractor within two business days after filing. [85-7-405]

Received within 90 days after last delivery. [31-5-51] NOTE that it must not be given before final delivery. [Younge Mechanical, Inc. v. Max Foote Const. Co., Inc., 869 So.2d 1079 (2004)]

Filed with chancery clerk, and sent by registered or certified mail or statutory overnight delivery to the owner and contractor. [85-7-405]

Personal service or by cer­tified mail, return receipt requested. Though the consequences of refusal of delivery are not clear, it is strongly recommended that the claimant ensures that the recipient actually and timely receives the notice. [31-5-51]

The Lien should be prepared for the client signature, printed on the Client Letterhead and mailed by the client per local counsel advice. (Note – this advice predates the revisions to the statutes, and may no longer be necessary.)

Note that there is also a form for amending a lien.  Please contact Levy von Beck and Associates for form information.

Copy of con­tract or notice of contract or commencing lawsuit. [85-7-131]

Contract or Notice of Con­tract must include:

-Description of property

-Name of Lienor(s)

-Date of filing

-If and where suit is fil­ed

-If and where contract is filed or recorded. Neither the statute nor case law requires a verification on the notice, nor is a specific person’s signature required. [85-7-133]

Petition commencing lawsuit must contain:

-Description with reasona­ble certainty of the pro­perty

-Nature of contract and indebtedness

-Amount of debt (Note that lien is limited to the amount due and owing claimant under the terms of the express or oral contract, subcontract, or purchase order, and shall include interest on the principal.) [85-7-403]

-Bill of particulars show­ing amount and kind of la­bor/materials furnished, prices, and time of deliv­ery. [85-7-141]

Neither the statute nor case law requires a verification on the notice, nor is a specific person’s signature required.

-Amount claimed

-Name of party to whom mate­­rial or labor furnished. [31-5-51]

Neither the statute nor case law requires a verification on the notice, nor is a specific person’s signa85-7-405ture required.

REAL PROPERTY:

Within the earlier of 180 days from the date of filing the lien, or 90 days after filing (by the owner, contractor, or their agent or attorney) of a Notice of Contest of Lien. This can be a payment action against the owner or, in certain circumstances, a lien action against the property alone. Note that if a different claimant begins a suit, all other claimants must join it, as only one foreclosure suit is allowed. Note also that claimant need not commence suit if the owner has not made payment to the contractor and the claimant cannot obtain final judgment against the party with whom the claimant contracted because the party has been adjudicated a bankrupt, the party is an individual who is deceased, or payment is not due to the claimant because of an enforceable contractual pay-if-paid clause. The lien claimant may, however, still file suit against the owner, though the judgment would attach only to the real property, and would not impose personal liability on the owner. [85-7-141, 85-7-405, 85-7-423]; Schor at §25.03[D]] NOTE, that the owner or contractor (or their agent or attorney) must send the notice of contest of lien to the claimant within 7 days of filing, and must send it by registered or certified mail or statutory overnight. Please contact Levy von Beck and Associates for information regarding the form for the Notice of Contest of Lien.  NOTE ALSO that an owner, contractor or sub may file a lien release bond, which will discharge the lien from the real property. The deadline for filing suit on the bond is the same as for foreclosing the lien. [85-7-415, 85-7-433]

LEASED PROPERTY:

Where the construction is done via contract with a lessee in possession, and the construction is consistent with the terms of the lease, the lien claimant can avoid forfeiture by paying the rent as it becomes due, and can choose to take over the lease for the terms of the lease, or, within 60 days of sale may remove the building if it is detachable. There are other special provisions for projects pertaining to leaseholds. [85-7-411]

BOND:

If only a performance bond is given, then a first-tier subcontractor or supplier can bring a suit against it, but only if no obligee has brought suit within 6 months from the earlier of final completion or actual use and occupancy. If a suit has been commenced, apparently the claimant may intervene, as long as it is within the six-month time period. If the obligee on the performance bond is the owner, then the obligee must bring suit within one year after the earlier of final completion or use and occupancy. If a suit has been timely brought, the later claimants must intervene in that suit; only one action is allowed against a bond. If the obligee is not the owner, then he or she must bring suit within one year after the obligee receives final payment on the project. [85-7-187; 85-7-189; 85-7-191]

Where a payment bond has been provided in addition to a performance bond, the claimant must bring suit within one year after the claimant’s last work or delivery. If a suit has been timely brought, the later claimants must intervene in that suit; only one action is allowed against a bond. [85-7-189; 85-7-191]

More than 90 days but less than 1 year after the claimant last performed labor or last supplied material. [31-5-51, 31-5-53]