Furnisher of labor or material under contract with owner or with agent, contractor or subcontractor of owner. [9 §1921]
1. Who May Have A Lien?
Private:
Public:
GENERALLY:
No statutory requirements. If a bond is provided, obtain a copy of it and find out the requirements. [Schor at §46.02]
HIGHWAY PROJECTS:
All laborers and suppliers of material, merchandise, labor, rent, hire of vehicles, power shovels, rollers, concrete mixers, tools and other appliances, professional services, premiums and other services used or employed in carrying out the terms of the contract between the contractor and the state of Vermont. There is no discussion as to what tier of claimant is covered. [Tit. 19, §10(9)]
2. What Is The Lien Against?
Private:
Improvements and lot. [9 §1921]
Public:
GENERALLY:
No statutory requirements. If a bond is provided, obtain a copy of it and find out the requirements. [Schor at §46.02]
HIGHWAY PROJECTS:
Contractor’s payment bond. [Tit. 19, §10(9)]
3. Who Must Give The Preliminary Notice?
Private:
Every claimant who does not contract directly with owner. [9 §1921]
Public:
GENERALLY:
No statutory requirements. If a bond is provided, obtain a copy of it and find out the requirements. [Schor at §46.02]
HIGHWAY PROJECTS:
No one.
4. To Whom Is The Preliminary Notice Given?
Private:
Owner or agent having charge of property, and mortgagee, where known. [9 §1921(b) and (d)]
Public:
GENERALLY:
No statutory requirements. If a bond is provided, obtain a copy of it and find out the requirements. [Schor at §46.02]
HIGHWAY PROJECTS:
No one.
5. When Must Preliminary Notice Be Given?
Private:
The notice must be received before the final notice is received, and less than 180 days after payment became due for final delivery of materials. The sooner the better, however, because the lien claim is limited to the amount of the general contract price still unpaid at the time the notice is received by the owner, or, where no notice is required, when claimant files its lien. [9 §1921]
Public:
GENERALLY:
No statutory requirements. If a bond is provided, obtain a copy of it and find out the requirements. [Schor at §46.02]
HIGHWAY PROJECTS:
No one.
6. Contents of Preliminary Notice.
Private:
-Notice that the claimant shall claim a lien for labor or material.
-The date the payment is due, if known.
-Recommend that claimant also include, at a minimum, the claimant’s name, address, and telephone number; the name, address and telephone number of the claimant’s customer; the identity of the project; and a general description of what the claimant is supplying, for example labor, the type of materials, etc. [9 §1921]
Public:
GENERALLY:
No statutory requirements. If a bond is provided, obtain a copy of it and find out the requirements. [Schor at §46.02]
HIGHWAY PROJECTS:
No one.
7. How Must Preliminary Notice Be Given?
Private:
No specific provision – personal service or certified or registered mail recommended. It is not effective until it is received.
Public:
GENERALLY:
No statutory requirements. If a bond is provided, obtain a copy of it and find out the requirements. [Schor at §46.02]
HIGHWAY PROJECTS:
No one.
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. [9 §1921]
Public:
GENERALLY:
No statutory requirements. If a bond is provided, obtain a copy of it and find out the requirements. [Schor at §46.02]
HIGHWAY PROJECTS:
All claimants. [Tit. 19, §10(9)]
10. To Whom Is Final Notice Given?
Private:
Clerk of town where real estate is situated. [9 §1923] It is also advisable to give the notice to all owners, mortgagees, and mortgage lenders of record. [Schor at §46.03]
Public:
GENERALLY:
No statutory requirements. If a bond is provided, obtain a copy of it and find out the requirements. [Schor at §46.02]
HIGHWAY PROJECTS:
The Secretary of Transportation. [Tit. 19, §10(9)]
11. When Is Final Notice Given?
Private:
Filed within 180 days after payment became due for claimant’s last labor performed or final delivery of materials. [9 §1923, 9 §1921]
Public:
GENERALLY:
No statutory requirements. If a bond is provided, obtain a copy of it and find out the requirements. [Schor at §46.02]
HIGHWAY PROJECTS:
Filed within ninety days after the final acceptance of the project by the state of
Vermont or within ninety days from the time the taxes or contributions to the Vermont commissioner of employment and training are due and payable. [Tit. 19, §10(9)]
12. How Is Final Notice Given?
Private:
Filed in town clerk’s office. [9 §1923]
Public:
GENERALLY:
No statutory requirements. If a bond is provided, obtain a copy of it and find out the requirements. [Schor at §46.02]
HIGHWAY PROJECTS:
File. [Tit. 19, §10(9)]
13. Contents of Final Notice
Private:
NOTE THAT THESE LISTED ITEMS ARE CUSTOMARY AND STRONGLY RECOMMENDED, BUT (EXCEPT FOR THE CLAIMANT’S SIGNATURE) NOT STATUTORILY REQUIRED.
-Statement of claim, including amount due and description of type of labor performed or materials supplied. (Note that the lien claim is ultimately limited to the amount of the general contract price still unpaid at the time the notice is received by the owner, or, where no notice is required, when claimant files its lien. [9 §1921])
-Identification of property
-Identification of claimant
-Identification of owner
-Statement that less than 180 days have elapsed since payment became due for claimant’s last labor performed or last materials supplied
-Signed by claimant. Neither the statute nor the case law suggests that anyone other than the claimant can sign the notice. [9 §1923; Schor at §46.03[E]]
Public:
GENERALLY:
No statutory requirements. If a bond is provided, obtain a copy of it and find out the requirements. [Schor at §46.02]
HIGHWAY PROJECTS:
A sworn statement of the claimant’s claim. Neither the statute nor the case law indicates whether anyone other than the claimant may sign the statement. [Tit. 19, §10(9)]
14. Time to Start Suit / Foreclose?
Private:
Within the later of 180 days after filing the lien, if payment was due at the time the lien was filed, or 180 days after payment becomes due, if payment was not due when the lien was filed. In either case, file it BEFORE the 180 days expire, because it is necessary to obtain an attachment against the property before that time, and sometimes this takes weeks. [9 §1924; Schor at §46.03[F]] NOTE that judgment must be recorded within five months of obtaining it, even if it isn’t final, or lien will expire. [In re Cusson, 412 B.R. 646 (D.Vt.,2009)]
Public:
GENERALLY:
No statutory requirements. If a bond is provided, obtain a copy of it and find out the requirements. [Schor at §46.02]
HIGHWAY PROJECTS:
Within one year after the filing of the claim. [Tit. 19, §10(9)]
