Furnishers of labor, materials or rental equipment to owner, general or sub, apparently of any tier. [42 §141, 42 §143; Schor at §37.03[B]] NOTE, HOWEVER, that lessors of equipment may not have a lien against a homestead or agricultural property. Architects do not have lien rights where their work does not involve or result in any improvement to the property. [42 §143.3; Stillwater Nat. Bank & Trust Co. v. Cook, 257 P.3d 427 (Okla.Civ.App. Div. 3,2011) aff’d 297 P.3d 401 (2012)]
1. Who May Have A Lien?
Private:
Public:
Any furnisher of labor, materials, or rental equipment to general or sub, of any tier. [61 §§1 and 2]
2. What Is The Lien Against?
Private:
The land, buildings and appurtenances. If, however, the general contractor’s contract is not with the owner, then the lien only attaches to the building or improvement, but not to the land itself. NOTE that the lien amount is limited to the price of the contract between the owner and the general contractor. [42 §141, 42 §143]
Public:
Contractor’s payment bond or irrevocable letter of credit. [61 §1]
Per Schor, claimants have an equitable right to any part of the contract funds held by the government after completion of the project, i.e., the retainage, but there are no specific provisions for collecting it. [Schor at §37.02[D][1]]
3. Who Must Give The Preliminary Notice?
Private:
ALL PROJECTS:
-All unpaid claimants supplying the general contractor or a subcontractor, whose total claim exceeds $10,000. Notice is not necessary when the only debt is the retainage. [42 §142.6]
-NOTE that no notice is required where the project is a single-family dwelling or a multi-family dwelling of up to four units, where none is occupied by an owner. [42 §142.6] Though note the requirements for owner-occupied dwellings, below.
NOTE, however, that if the claimant gives the general contractor a written request, delivered in the same manner set out for a preliminary notice, asking for the name and last known address of the property owner, and if the contractor does not provide the information within 5 days after receiving the request, then the claimant does not need to give the owner the preliminary notice. [42 §142.6]
On an owner-occupied dwelling, all claimants need to give notice, except that a laborer who works directly for the owner, or a supplier of materials directly to the owner, does not need to give preliminary notice. [42 §142.6]
Public:
A preliminary notice is not required.
4. To Whom Is The Preliminary Notice Given?
Private:
ALL PROJECTS:
Last known address of the owner and general contractor. If the claimant gives a written request to the general contractor asking for the owner’s name and last known address, and the contractor fails to provide the information within five days of receiving the request, then the claimant will not be required to give the owner a copy of the preliminary notice. [42 §142.6, 42 §143.1]
NOTE that on with an owner-occupied dwelling, where the owner has vacated the property while it is being rebuilt to repair fire damage, the owner is to be treated as occupying the dwelling, and must be given the preliminary notice. [42 §142.6; Mel Stevenson & Associates, Inc. v. Giles, 103 P.3d 631 (Okla.Civ.App. Div. 2, 2004)] An owner who resided in the residence at the time of damage, and only temporarily vacated the property during the repairs, is considered to be occupying the property and is entitled to notice. [Mel Stevenson & Associates, Inc. v. Giles, 103 P.3d 631 (Okla.Civ.App. Div. 2) (2004); C & C Tile and Carpet Co., Inc. v. Aday, 697 P.2d 175 (Okla.App. Div. 2) (1985)]
Public:
Not applicable.
5. When Must Preliminary Notice Be Given?
Private:
ALL PROJECTS:
Notice must be sent not later than 75 days after claimant’s last delivery. If it is personally served, it must be delivered by that time. [42 §§142.6; Jones v. Purcell Investments, LLC, 231 P.3d 706 (Okla.Civ.App. Div. 1,2009)]
Public:
Not applicable.
6. Contents of Preliminary Notice.
Private:
ALL PROJECTS:
-A statement that the notice is a pre-lien notice
-The complete name, address, and telephone number of the claimant, or the claimant’s representative
-The date of supply of material, services, labor, or equipment
-A description of the material, services, labor, or equipment
-The name and last-known address of the person who requested that the claimant provide the material, services, labor, or equipment
-The address, legal description, or location of the property to which the material, services, labor, or equipment has been supplied
-A statement of the dollar amount of the material, services, labor, or equipment furnished or to be furnished, and
-The signature of the claimant, or the claimant’s representative. Neither the statute nor the case law offers any guidance as to whether the claimant’s attorney can sign the claim, but presumably the attorney would qualify as the claimant’s representative. [42 §142.6]
Public:
Not applicable.
7. How Must Preliminary Notice Be Given?
Private:
ALL PROJECTS:
A rebuttable presumption of compliance is created if the notice is sent as follows:
-Hand delivered with a delivery confirmation receipt, or
-Automated transfer, i.e., email or fax, or
-Certified mail, return receipt requested. Notice sent by certified or registered mail is deemed effective on the date it is mailed.
NOTE that proof of service by one of these methods is required to be attached to the lien, when it is filed. [42 §142.6; 12A §15-115]
Public:
Not applicable.
8. Who Must Give Interim Notice?
Private:
An interim notice is not required.
Public:
An interim notice is not required.
9. Who Must Give Final Notice?
Private:
All claimants. [42 §142,42 §143]
Public:
Supplier of labor or materials who is contracting with a subcontractor, and not with the general contractor. [61 §2]
10. To Whom Is Final Notice Given?
Private:
-Clerk of county where land is situated
-Owner. This notice is required to be given by the county clerk, but it is recommended that claimant send it as well.
[42 §142, 42 §143, 42 §143.1]
-NOTE that it is a felony for a general contractor to falsify a statement regarding liens on labor or material to the owner of a dwelling. [42 §142.4]
Public:
-Contractor
-Surety. [61 §2]
11. When Is Final Notice Given?
Private:
GENERAL CONTRACTOR:
Filed within 4 months after last work or delivery. [42 §142]
ALL OTHER CLAIMANTS:
-To county clerk: Within 90 days after claimant’s last delivery.
-To owner: Notice is mailed by county clerk within five business days after notice is given to clerk. [42 §143] If the owner cannot be found, then within 60 days of filing with the county clerk the claimant may file an affidavit showing due diligence in trying to locate the owner, and then serve notice on the occupant of the property, or post the notice if the property is unoccupied. [Schor at §37.03[C]] NOTE that in all cases, the clerk must mail a copy of the lien to the owner within 1 business day of filing the lien. [42 §143.1]
Public:
Received within 90 days from claimant’s last work or delivery. [61 §2]
12. How Is Final Notice Given?
Private:
Filed with county clerk, and sent to the owner by the county clerk at least, via certified mail, return receipt requested, to owner. County clerk is required to do this, but claimant could also do it, just to be safe. According to case law, a lien can be perfected by EITHER giving notice OR filing a lawsuit within 4 months of claimant’s last work or delivery. In re Strother, 328 B.R. 818 (2005), citing Palmer v. Crouch, 298 P.2d 1041 (Okla. 1956).
NOTE: If claimant has no address for the owner of the property, and the owner cannot be found, claimant must file an affidavit stating this within 60 days of filing lien, and serve a copy of notice on occupant of premises or post in a conspicuous place on property. [42 §142, 42 §143, 42 §143.1]
Public:
Registered or certified mail. [61 §2]
13. Contents of Final Notice
Private:
-Amount due, and may include all applicable profit and overhead. A sub’s lien will be limited to the amount that the general contractor would be able to claim. [42 §141, 42 §143])
-Description of labor or items of material furnished (this description is not required in a claim filed by the general contractor)
-Name of owner
-Name of contractor
-Name of claimant
-Legal description of property
-Claim must be verified by affidavit. Note that neither the statute nor the case law clarifies whether anyone other than the claimant can sign the claim.
-Claimant must also attach a notarized affidavit verifying compliance with the prelien notice requirements.
-Claimant must provide clerk with the last known mailing address of the owner and the person against whom the claim is made, but the addresses need not be in the body of the notice.
-As to rented or leased equipment, must attach to the lien a certificate of service of the prelien. [42 §141, 42 §142, 42 §143, 42 §143.1]
OR, file a lawsuit. In re Strother, 328 B.R. 818 (2005), citing Palmer v. Crouch, 298 P.2d 1041 (Okla. 1956).
Public:
-Amount claimed
-Name of party to whom labor or material was furnished. [61 §2]
14. Time to Start Suit / Foreclose?
Private:
More than 90 days but less than one year after claim is filed. [42 §14.1, 42 §172, 42 §177]
NOTE, however, that according to case law a lawsuit can be filed within 4 months of the last delivery or work performed, instead of giving a final notice. In re Strother, 328 B.R. 818 (2005), citing Palmer v. Crouch, 298 P.2d 1041 (Okla. 1956).
Public:
Within one year from claimant’s last delivery. [61 §2]
