This guest post comes from friend of the blog, Robert Wise, a construction law attorney in Mississippi (Sharpe & Wise PLLC). Robert was influential in the drafting and passing of Mississippi’s 2014 mechanics lien law re-write, which made substantial changes to the state’s mechanics lien scheme. As this article title indicates, this post provides 4 key important things that Subcontractors & Material Suppliers — who previously did not have traditional notice requirements or lien rights in the state – must know to get protection under the new law. This is part of a series of 3 articles about the Mississippi Lien Law Changes written by Robert Wise that will appear on this blog. Read them all here.
The new April 2014 Mississippi construction lien law requires that a lien claimant meet seven (7) strict procedural requirements. The failure of the lien claimant to follow the enumerated requirements set forth in MISS. CODE ANN. § 85-7-405(1) renders the lien to “not be effective or enforceable.”
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Courts strictly construe the requirements because lien statutes are in derogation of the common law. As Justice Jimmy Robertson has written, “[t]here is no natural law of materialman’s liens” since claimants have lien rights “only to the extent that they have brought themselves within the terms of the statute.” Riley Blg. Suppliers, Inc. v. First Citizens Nat’l Bank, 510 So.2d 506, 508 (Miss.1987).
The procedural requirements apply regardless whether the job is commercial or residential. The seven prerequisites are that the claimant:
- Be in substantial compliance with the contract or purchase order;
- File claim of lien within 90 days;
- Include in the lien a statement of amount due and due date of the claim;
- Notice the filing of claim of lien within 2 days to contractor and owner;
- File a payment/lien action within 180 days or 90 days if owner contests;
- File a lis pendens with commencement of the payment action; and
- Be licensed if required with Board of Contractors or other licensing board.
In addition there are two starting gate requirements before a Mississippi subcontractor or materialman can qualify for a construction lien under Mississippi’s new construction lien law:
- 1) A written Notice of Commencement of addition of labor or materials sent to the general contractor within 30 days of the first supply on commercial and multi-family jobs (MISS. CODE ANN. § 85-7-407(2)), and
- 2) On single family residential jobs a written Pre-Lien Notice to the owner sent at least 10 days before the filing of any lien on a single family residence. (MISS. CODE ANN. § 85-7-409(2)).