The Missouri preliminary notice rules can be overwhelming. While there is no “traditional” preliminary notice required, a notice of intent to lien is required for all subcontractors. Not to mention a number of other notices that may be required depending on the situation. Navigating all of these notice requirements is important, as each one can affect a contractor’s ability to file a mechanics lien. This guide will tell you all you need to know about Missouri preliminary notices.
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Missouri preliminary notices
There are no “traditional” Missouri preliminary notice requirements, but there are a number of different notices that are required to be sent before filing a mechanics lien. Nearly every project participant needs to send or file a notice at some point in order to secure their lien rights. Missouri lien laws grant heavy protection to owners by requiring notices from direct contractors informing them of the possibility of liens filed, and requiring subs to get consent from the owner. Failure to send any of these notices will extinguish all rights to file a mechanics lien. Let’s break down each one of these individually.
Notice to Owner
This first type of notice is required by any original contractor that has a direct construction contract with the property owner. This Notice to Owner is required to be sent to the owner prior to receiving any payments under the contract. This can be done either: (1) during the execution of the contract, (2) when the first materials are delivered; (3) when the work is commenced, or (4) delivered along with the first invoice.
There is no specific way that this notice should be sent. However, best practice is through personal service or certified mail. As long as you keep some sort of evidence that service was made. In addition to service, the notice must contain the following statutory required language in 10pt, bold font:
Notice to Owner
Failure of this contractor to pay those persons supplying materials or services to complete this contract can result in the filing of a mechancis lien on the property which is the subject of this contract pursuant to Chapter 429, R.S.M.O. To avoid this result you may ask this contractor for lien waivers from all persons supplying material or services for the work described in this contract. Failure to secure lien waivers may result in your paying for labor and materials twice.
Failure to send this notice is fatal to the direct contractor’s mechanics lien rights. Furthermore, any direct contractor who fails to send this notice with an intent to defraud can be found guilty of a class B misdemeanor; which could be punishable by up to 6 months in jail and a fine of $1,000.
Consent of Owner
This is another unique requirement of Missouri’s mechanics lien laws. On owner-occupied residential property, only the prime contractor has mechanics lien rights. Therefore, any contractor or material supplier that didn’t contract directly with the owner on an owner-occupied, residential project must obtain consent from the owner in order to have mechanics lien rights. This consent must contain the following words:
CONSENT OF OWNER
CONSENT IS HEREBY GIVEN FOR FILING OF MECHANICS LIEN BY ANY PERSON WHO SUPPLIES MATERIALS OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT ON THE PROPERTY ON WHICH IT IS LOCATED IF HE IS NOT PAID.
Obviously, there’s no guarantee that the owner will actually sign it. If this consent is not given, and the owner paid the general contractor in full, that will act as a complete defense to any mechanics liens filed. Missouri law takes this consent very seriously. So much so that any contractor who is caught forging an owner’s signature on this form is in BIG trouble. Falsifying an owner’s signature with the intent to defraud is considered a Class-C felony; which is punishable by 3-10 years in prison, and the court can impose a fine of up to $10,000 or twice the amount of the financial gain to the offender.
Notice of Use of Equipment
A Notice of Use of Equipment is a Missouri preliminary notice that’s strictly required for equipment lessors on commercial projects. Also, keep in mind that a mechanics lien is not available to equipment lessors unless the contract is for over $5,000. If all of these conditions are present, then the equipment lessor needs to provide notice within 15 days of the commencement of the use of the rental equipment or machinery. Failure to provide this notice is fatal to an equipment lessor’s mechanics lien rights.
Notice of Intent to Lien
Every potential lien claimant must first serve a Notice of Intent to Lien in Missouri before they can file a claim of lien. A Notice of Intent to Lien should contain all of the following information:
- Property owner’s information;
- Claimant’s information;
- Hiring party’s information;
- Amount of the claim;
- A description of the labor/materials provided;
- Legal property description; &
A Notice of Intent to Lien must be served at least 10 days before filing a mechanics lien on the property. This can be served via personal service, or by certified mail with return receipt requested. However, if the owner can’t be served by mail, or doesn’t live in the county where the project is located; there’s another option. Notice can be served by filing this notice in the recorder of deeds for the county where the property is located.
Although this seems clear, there are always issues that can arise. Take for example this question from our Ask an Expert Center: We did work for a project in Kansas City, MO that included four units with different addresses, but we billed them all as one. Do I have to file a notice of intent to lien on each separate address?
Notice of Rights
This type of Missouri preliminary notice will rarely be used but is an important one nonetheless. A Notice of Rights is used when the property owner plans to have the property sold during a construction project. The property owner is required to post a Notice of Intended Sale that will indicate a closing date. If this is posted on a project, everyone on the project must file a Notice of Rights at least 5 days before the designated closing date in order to preserve their right to lien the property.
As you can see, the Missouri preliminary notice process is a complicated one. Depending on the project type, role, and other circumstances, one or more of these must be used in order to fully maximize the protection offered by mechanics liens. Also, missing one of these requirements and filing a lien without proper preliminary notices in Missouri could also lead to some trouble.
Besides the effect on lien rights, preliminary notices offer a number of other benefits as well, they promote visibility on the project, open the channels of communication, and help contractors get paid quickly. Which is why we always recommend sending a preliminary notice even if it isn’t required.