How do I challenge a notice of a special lien?

2 weeks ago

I solicited a contractor in Mississippi to paint the interior and exterior of a vacant rental property . The contractor emailed me an estimate that we later discussed and verbally settled on a negotiated lower price. However, the initial contract or the revised contract, was ever signed and the contractor did not show up the day the work was to commence so I assumed because I did not sign and return the contract the contractor had not expected to do the work quoted. A couple days later the contractor showed up at the vacant property to begin working. I didn’t know the contractor had begun the work for a couple days because the property was vacant. The contractor completed the work on 10/28 and filed a lien on 1/29. I understand this may be outside of the 90-day filing guidelines, but I would like to verify if a pre-lien notice is required and how do I challenge a notice of a special lien.

Senior Legal Associate Levelset
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Contractors hired directly by the property owner do not need to send preliminary notice in order to preserve their right to lien. So, a contractor’s failure to send preliminary notice won’t affect their right to lien. And, you can learn more about the state’s notice requirements here: Mississippi Preliminary Notice Guide and FAQs.

Mississippi mechanics lien rules and deadline

Regarding the validity of the lien – there are some interesting considerations that will come into play here.

For one, Mississippi doesn’t require a written contract in order for lien rights to arise (as laid out by  § 85-7-403(3) of the state’s mechanics lien statute. So, if a verbal agreement was made, then a contractor’s work under that verbal agreement could give rise to a completely valid mechanics lien. And, a contractor is only entitled to file a lien to the extent that payment is due and owing under the terms of that contract.

As for the deadline, a Mississippi mechanics lien must be filed within 90 days of last furnishing labor or materials to the project. So, a mechanics lien filed more than 90 days after last furnishing will likely end up invalid and unenforceable due to being untimely. For background on how last furnishing is determined: What’s the ‘Date Labor or Materials Last Delivered’ and How Can I Prove It?

Challenging a Mississippi mechanics lien

There are a few different ways to challenge a Mississippi mechanics lien filing. For one, sending a demand letter which requests the lien claimant release their lien could be effective. This is especially true when the letter identifies flaws in the lien claim, threatens legal action, and comes from an attorney. And, § 85-7-429(1) of the Mississippi mechanics lien statute sets out harsh penalties for those who file false mechanics liens. Though, keep in mind that honest mistakes might not always give rise to a false or fraudulent lien.

Further, an owner can always officially challenge a filed lien claim via legal action. Under § 85-7-429(2), an owner can apply to the court to have a lien claim vacated from the property title. Though, to proceed with suit, it’d be wise – if not required – to utilize an attorney’s services.

Yet another option might be to file a Notice of Contest of Lien pursuant to § 85-7-423(1). And, if that Notice of Contest is properly filed with the chancery clerk’s office, then the lien will be dissolved at the shorter of the following two dates if the claimant doesn’t file a lien enforcement suit: (1) 90 days after the Notice of Contest is filed; or (2) 180 days of the date of the lien filing.

Finally, note that Mississippi property owners may also bond off mechanics liens filed against their property. Though, that might be an expensive and unappealing option, particularly if there are obvious flaws with the lien. Further discussion on bonding off liens here: Primer on Mechanics Lien Bonds and Bonding Off a Mechanics Lien.

Disclaimer: The information presented here is not legal advice and should not be construed as such. Rather, this content is provided for informational purposes. Do not act on this information as if it is advice. Further, this post does not create any attorney-client relationship. If you do need legal advice, seek the help of a local attorney.
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