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MississippiConstruction ContractMechanics LienNotice of Intent to LienRight to Lien

I have concerns about a contract's language regarding my lien rights. The job is located in Mississippi. We are a business located in Wisconsin. We would be a sub to the General Contractor (who is also the owner). We have never seen language like this in any contract and I am uncertain as to what the language actually means. Is this language particular to the State of Mississippi? Is the notice the contract speaks of actually the notice of intent to lien? The language in the contract reads as follows: part (D) - For any lien right Subcontractor may claim or desire to assert against Contractor in accordance with the terms and conditions of the subcontract or otherwise, Subcontractor must first provide Contractor with written notice of a claimed legitimate dispute between the parties hereto by giving Contractor 45 days prior written notice of such claimed dispute, , which note shall set forth in particular detail the nature of the claim, the proposed amount of the claim and demonstrates that Subcontractor is not in default of any of the terms and conditions of this Subcontract. During said 45 day notice period, Subcontractor and Contractor shall use reasonable efforts to resolve any such claimed dispute, failing in which, Subcontractor shall provide 15 days prior written notice to Owner of the property and Contractor that satisfactory resolution of the claimed dispute has not occurred and that Subcontractor intends to file a lien against Owner's property in accordance with the terms and conditions of this Subcontract or otherwise. Failure to provide the notices required herein shall constitute a waiver of Subcontractor's rights to file any lien against the Owner's property. The provisions of this section are not intended to grant to Subcontractor any additional line rights other than those provided by statute. All such notices required by this Section 13 (d) shall be sent by certified mail, return receipt requested.

2 replies

Jun 16, 2020
Based on the information provided above, it sounds like the contract is purporting to create new notice and Notice of Intent to Lien rules outside of Mississippi's statutory mechanics lien scheme. Generally speaking, mechanics lien rights are a statutory right, not a contractual right. And, because Mississippi's mechanics lien scheme is created by statute (and not by contract), by and large, the scheme can't be altered via contractual agreements. Further, that section also states that lien rights are considered waived if the contractual mechanics lien requirements aren't followed. However, Mississippi's mechanics lien specifically prohibits the waiving of lien rights via contract at § 85-7-419(1). That section reads: "A right to claim a lien or to claim upon a bond may not be waived in advance of furnishing of labor, services or materials.  Any purported waiver or release of lien, bond claim or this article executed or made in advance of furnishing labor, services or materials is null, void and unenforceable." So, language in the contract that would potentially waive lien rights shouldn't actually waive any lien rights.

Consult a Mississippi lawyer for contract analysis

With all of that being said, my experience with Mississippi mechanics lien law is limited. So, if you're concerned with the language of your contract, it might be wise to either negotiate the questionable terms out of the contract or to consult with a Mississippi construction lawyer. They'll be able to review the contract and advise on the clause's potential impact - and their experience with MS law should be particularly valuable. For help finding a Mississippi lawyer: Find a Mississippi Construction Lawyer.
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Jun 17, 2020
I will most likely find a Mississippi construction lawyer to clarify. I agree that the language in the contract appears to try and negate MS lien law.
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