Tag Archives: Construction Lawyer

H-2B Nonimmigrant Program – Frequently Asked Questions

The H-2B Nonimmigrant Program can be greatly beneficial to employers around the United States, but it also has numerous regulations to ensure that employers provide U.S. workers and H-2B workers safeguards and an equal opportunity to work in a safe, healthy and respectable work environment. This post lays out the rules that an employer needs to know in order to comply with the federal laws and regulations governing the employment of nonimmigrant workers.

This website is not intended to serve as legal advice. It is always well-advised to seek the counsel of an experienced attorney to assist you in achieving your desired outcome. No attorney-client relationship is created by viewing or taking information from this website. The choice of an attorney is an important decision and should not be based solely off advertisement. 

General information regarding H-2B Nonimmigrant Employment Program

What is the H-2B Nonimmigrant Employment Program?

This program consists of the hiring of employees outside of the United States by U.S.-based businesses to satisfy workforce needs outside of agricultural work. The Department of Labor describes the H-2B workers as: The temporary employment of foreign workers for seasonal skills in areas other than agriculture

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What is the Purpose of the H-2B Nonimmigrant Program?

The goal is to find a balance between providing opportunities to U.S. Workers and satisfying the workforce needs of U.S. Employers. The program seeks to give U.S. employees a fair opportunity to find and apply for jobs for which employers are seeking H-2B workers, and at the same time, giving employers the opportunity to hire foreign workers on a temporary basis in the event that U.S. workers are not available.

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What are the Objectives of the Rules Surrounding the H-2B Program?

The Rules surrounding the H-2B program look to enhance and expand the real-time recruitment efforts of U.S. Workers. This means that employers must first offer U.S. employees job opportunities in certain instances. The rules also establish a national electronic job registry to give U.S. workers better access to job searching tools/facilities. Further, the rules look to fortify worker protections regarding: (a) wages, (b) working conditions, and (c) benefits to all workers, including H-2B and U.S. workers alike, which fall under the protections of the applicable federal regulations. They also establish the prevailing wage methodology for the H-2B program, reinstating the use of employer-provided surveys to set the prevailing wage in certain limited situations

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What are the Requirements for the U.S. Department of Labor to Issue an H-2B Certification to an Employer?

The U.S. Department of Labor must make certain determinations and findings prior to issuing an H-2B Certification to employers.  The following are some of the requirements:

  1. The Department of Labor must determine that there are not sufficient workers to fulfill the temporary service or labor needs in the area in which the employer is looking to hire; and
  2. The wages and working conditions of U.S. workers cannot be adversely affected by the hiring of H-2B workers.

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How are the Rules for Employer Requirements and Worker Protections Established?

The U.S. Department of Homeland Security, the Immigration and Nationality Act and Federal regulations relating thereto set forth the Employer requirements and worker protections. In addition to the foregoing bodies of law, the Department of Labor’s Wage and Hour Division controls contracts with employees and the enforcement of laws regarding worker wages.

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Which Governmental Entity Controls the Issuance of the H-2B Certifications?

The U.S. Department of Homeland Security (DHS) oversees the issuance of H-2B Certifications. Specifically, the U.S. Citizenship and Immigration Services (USCIS) division controls the specifics of the application and certification process.

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What are the Requirements of an Employer Applicant to Obtain H-2B Certification?

There are a number of requirements an employer must satisfy to be eligible to obtain H-2B Certification. The following are a number of the requirements:

  1. The employer must have a Federal Employer Identification Number (FEIN);
  2. The employer must have a physical location (address—not just a PO Box);
  3. The employer must have contact information through which workers and other can contact the employer regarding employment information/possibilities.

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What are the Job Categories for H-2B Certification?

There are several types of job categories that an employer seeking to hire under the H-2B certification program, including the following:

  1. Full-Time (this category is for employment of 35 or more hours per week);
  2. Temporary (this category is for employment for a time period of nine months or less, with the exception of one-time occurrences);
  3. Non-Agricultural Employment (within specified areas of intended employment only).

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What does the Employer have to Establish to Hire for Non-Agricultural Services?

In order to hire for non-agricultural services, the employer must first establish that the need for labor is temporary in nature. This requirement applies whether or not the position is temporary or permanent.

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How is Temporary Need Established?

An employer can establish temporary need by showing that there is a need for any of the following:

  1. One-Time Occurrence;
  2. Seasonal Need;
  3. Peakload Need; or
  4. Intermittent Need.

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What is the Maximum Length of Time that a Temporary Need H-2B Employee will be approved?

The maximum amount of time that DHS will approve a temporary need employee is 9 months. There is an exception, however, for One-time occurrence needs, which could be approved for up to 3 years.

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Where does the Employer submit the H-2B Application?

The employer should submit the H-2B Application (Form ETA-9142B and Appendices) with supporting documentation and a copy of the job order filed with the SWA to the Chicago National Processing Center.

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Timing

When Should the Employer Begin Registering for the H-2B Application?

The employer seeking to hire under the H-2B visa program should register 120 to 150 days prior to the date that the employer will need the workers. There is a lead time for processing applications, and a number of requirements that must be satisfied prior to approval. Thus, an employer is advised to begin the process as soon as possible to ensure that the workers will be approved in a timely manner.

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Prevailing Wage Determination

How does an Employer make a Prevailing Wage Determination?

At least 60 days prior to the time the prevailing wage determination is required, an employer can obtain a prevailing wage determination (“PWD”) from the National Prevailing Wage Center (“NPWC”) by submitting an Application for Prevailing Wage Determination (Form ETA-9141).

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Job Order

When Should the Employer File a Job Order and Submit the H-2B Application?

Approximately 75 to 90 days prior to the date the workers are needed, the employer should file a job order with the State Workforce Agency (“SWA”).

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What Must be Included in the Job Order?

The Job Order has numerous requirements and must be strictly followed in order for the Employer to obtain the issuance of certification under the H-2B program, including, but not limited to the following:

  1. The qualifications and requirements for the job
  2. The qualifications and requirements must be consistent with the normal and accepted qualifications and requirements imposed by non-H-2B employers in the same occupation and geographic area;
  3. Any minimum productivity standard which the workers must meet in order to retain the job (such standard must be normal and reasonable for non-H-2B employers for the same occupation and geographic area);
  4. Employer is required to offer employment for at least 75% of the workdays for a 12-week period—this requirement is known as the “three-fourths guarantee.”

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Employment Requirements, Three-Fourths Guarantee, & Termination

When does the “Three-Fourths Guarantee” Work Period Begin?

The period begins on the later of: (a) the first workday after the worker arrives, or (b) the advertised first day of need.

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When does the “Three-Fourths Guarantee” Work Period End?

The three-fourths guarantee work period ends on the last day of the job order.

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What Happens if the Employer does not Offer Sufficient Hours to Satisfy the “Three-Fourths Guarantee?”

Regardless of whether the employer offers the worker the sufficient number of hours to satisfy the “three-fourths guarantee,” the employer is still responsible for paying for the time period as if the worker had worked such minimal number of workdays/hours.

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What are the Employer’s Options if the Services of a Worker are No Longer Required (before the end date listed on the job order)?

The answer of this depends on the reason the employer no longer requires the services of the laborer. If the basis for no longer needing the worker’s services is due to unforeseeable reasons that are beyond the control of the employer, such as those that may fall under a force majeure clause (i.e., Acts of God, fire, weather, riot, man-made catastrophic event, etc.), then the employer may terminate the job order with approval of the Certifying Officer.

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What if a Termination is Approved?

If termination is approved, the employer must still:

  • Fulfill the three-fourths guarantee up to the time of termination; and
  • Make reasonable efforts to assist the worker in transferring to comparable employment by taking steps such as searching the State Workforce Agencies and/or national job registry.

If the worker is not transferred, the employer must provide the worker return transportation back to the place where the worker came from (which does not include interim employment by the worker). Typically, this would be the country from where the worker came.

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Payment, Expenses, and Wages

What type of Wages does an Employer have to Offer to H-2B Workers?

The H-2B Program requires employers to promise to offer workers a wage that equals or exceeds the prevailing wage rate, the federal, state, or local minimum wage for the occupation in the area of intended employment during the period of the approved H-2B labor certification.

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How Frequently does the H-2B Worker Need to Be Paid?

The H-2B workers need to be paid at least every 2 weeks or in accordance with the normal practice in the area of intended employment.

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What are Reasonable Deductions from a H-2B Worker’s Paycheck?

See 29 CFR Part 531

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What Costs is the Employer Responsible for with Respect to H-2B Workers?

Employers are responsible for paying for numerous costs and expenses, including the following:

  1. All visa, border crossing, and visa-related expenses to H-2B workers. The employer must pay for these in advance or within the worker’s first workweek.
  2. Inbound transportation and subsistence costs to workers traveling to the employer’s worksite;
  3. Return transportation and daily subsistence.

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Who is Responsible for Providing the Workers with Equipment and Tools?

The employer is responsible for providing the workers with all equipment, tools, supplies, and materials necessary for the work. Employer is not allowed to charge the workers or require a deposit for such equipment, tools, supplies, or materials.

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What Types of Payments are Employers Prohibited from taking from Workers?

Employers and their agents are prohibited from any taking any money from workers for activities related to obtaining employment certification. This includes attorney’s or agent’s fees, application fees, DHS petition fees, or recruitment costs. Payment includes, but is not limited to, monetary payments, wage concessions (including deductions from wages, salary, or benefits), kickbacks, bribes, tributes, in-kind payments, and free labor.

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What are some other Restrictions Regarding Employers Seeking H-2B Certification?

Employers seeking to hire workers under the H-2B certification program have certain limitations on the job that they are offering. The following are some of the Restrictions imposed upon employers seeking H-2B certification:

  1. The job opportunity cannot discriminate based on race, color, national origin, age, sex, religion, handicap, or citizenship.
  2. There cannot be a lockout or strike at any of the employer’s worksites within the area of intended employment.
  3. Employer may not lay off any similarly-employed U.S. employee in the job and intended area of employment within 120 days prior to the end of the job order, unless all H-2B workers are laid off first.
  4. H-2B workers are only permitted to work in the area of employment that is listed on the approved application, unless a new, revised application is obtained from the Department of Labor.
  5. Employers must notify the Department of Labor and Division of Homeland Security of any separation of a worker from a job within 2 days of such separation.
  6. Employer is prohibited from knowingly holding, destroying, or confistcating workers’ passports, visa, or other immigration documents.

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Documentation Retention by Employer

What Type of Documentation does the Employer have to Keep for the Workers?

Given that this is a federal program, the employer would be wise to keep all documentation related to the worker’s employment. This includes: (a) accurate records of the worker’s earnings, (b) hours of work offered to the worker, (c) hours actually worked by the worker. Each worker must receive a paystub showing hours offered, hours actually worked, hourly rate, and/or piece-rate of pay, and if piece-rate pay, the number of units produced. The paystub must also include total earnings for the pay period and any deductions from the wages.

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How Long does an Employer have to Retain Documentation Relating to an H-2B Worker?

Employers must retain documentation relating to the H-2B worker, including application and registration documentation, recruitment-related documents, payroll records, and related documents for a period of no less than 3 years.

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Corresponding Employment

What is a Corresponding Worker?

A corresponding worker is a non-H-2B worker who works for the employer during the period of a job order and who performs substantially the same work included in a job order or substantially the same work as the H-2B workers.

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What Workers are not Included Under the Definition of Corresponding Workers?

There are two categories of workers who do not fall under the definition of Corresponding Worker:

  1. Incumbent Employees who meet the following requirements:
    1. Had continuous employment with the employer during the 52 weeks prior to the time set forth in the job order; and
    2. Who worked for at least 35 hours per week in at least the last 48 out of 52 workweeks; and
    3. Whose terms and working conditions have been significantly reduced by the employer during the period of the job order.

 

  1. Incumbent Employees covered by a collective bargaining agreement or employment agreement that contains a promise to provide a minimum of 35 hours per week of work and falls under the period of the job order.

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Recruit Requirements Under the H-2B Program

What are the Requirements for Recruiting Employees under the H-2B Program?

Employers are required to conduct certain recruitment to verify that there are no U.S. workers who are qualified for the position listed in the Application for H-2B Certification. Employers are required to accept referrals from The Office of Foreign Labor Certification (“OFLC”) and the State Workforce Agency (“SWA”) up to and including 21 days prior to the date of need. Both of said organizations will maintain the job posting on their registries, websites, or databases to provide U.S. workers the opportunity to apply for the position with the employer.

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On what grounds can an Employer Reject the hiring of a Qualified U.S. Worker Applicant?

The employer must hire qualified U.S. applicant workers who are available during the period of the job order, unless the employer has lawful, job-related reasons.

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What types of Interviews Can the Employer Conduct?

The Employer wishing to interview U.S. workers must conduct interviews by phone or provide a procedure for interviews to be conducted in the location where the worker is being recruited. The idea is to prevent the worker from incurring costs associated with the interview. The employer is not allowed to give preferential treatment to any H-2B worker as compared to any U.S. worker.

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How does the Employer Demonstrate Compliance with Recruitment Requirements?

At the conclusion of the recruitment process, the employer must prepare a document called a recruitment report. The document will outline several items, in accordance with 20 CFR § 655.48, including the following:

  1. The names and contact information of all U.S. applicants, whether they were offered a position or rejected, and
  2. The lawful, job-related reasons for any rejections.

The employer must continue to supplement the report and maintain an updated version up to and including 21 days from the date of the need. Further, employers are responsible for advertising the position as described in further detail below.

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What Advertising is required for Employer’s Seeking Workers through the H-2B Program?

The employer is required to obtain an advertisement on two separate days, which may be consecutive, one of which must be a Sunday, in a newspaper of general circulation. The advertisement must be located in the area where the employment is intended and must be appropriate to the occupation and the workers that are likely to apply for the position. Newspaper advertisements must satisfy requirements described in 20 CFR § 655.41.

The employer is required to keep copies of the newspaper pages (with date of publication and full copy of the advertisement), or other proof of publication furnished by the newspaper, which is consistent with the document retention requirements set forth in 29 CFR 503.17.

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What Does the Employer’s advertising for the H-2B Program have to Include?

All advertising by the employer regarding the open position must include:

  1. The employer’s name and contact information;
  2. The geographic area of intended employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job;
  3. A description of the job sufficient to apprise workers of the services that will be performed, as well as minimum education requirements, work hours/days, and anticipated start and end dates;
  4. A statement that the position is temporary or full-time, including total number of openings the employer intends to fill;
  5. A statement as to overtime pay, if applicable, and the amount of such pay;
  6. A statement that on-the-job training will be provided, if applicable;
  7. The wage the employer is offering;
  8. Any board or lodging provided by the employer or employer will assist in securing, if applicable;
  9. A list of all deductions from worker’s paycheck that are not required by law;
  10. A statement that transportation and subsistence from the place where the worker has come to work for the employer to the place where the worker will work for the employer will be provided;
  11. A statement that work tools, supplies, and equipment will be provided to the worker free of charge, if applicable;
  12. A statement that daily transportation will be provided to and from the worksite by the employer, if applicable;
  13. A statement summarizing the three-fourths work guarantee; and
  14. A statement directing applicants to apply at the nearest office of the SWA, SWA’s contact information, and job order number, if applicable.

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Construction Law Litigation

Are you involved in a dispute on a construction project? Do you need an attorney to assist you with the litigation process?

Our attorneys handle a wide array of construction disputes, and we can probably help you with your case. We have represented owners, general contractors, subcontractors, sureties, design professionals, and a variety of other participants on a construction project.

The litigation process can be quite complex. When combined with construction, it is easy to imagine how incredibly complex certain issues in construction litigation can be. Some disputes have many moving wheels, which poses a heavy task for the lawyers who have to wade through all of the facts and the law.

As part of their tasks, our lawyers participate in all phases of litigation from preventative measures such as contract negotiations and drafting to project execution and advising mid-project to post-project litigation such as collection work and bond claims.

It is imperative for limited liability companies and corporations involved in the construction industry to have a lawyer who specializes in construction litigation as Missouri courts require that construction companies, if they are incorporated, must be represented by a lawyer.

Why can an individual not represent an entity in court?
An individual, even a member or manager of the limited liability company (“LLC”) is not permitted to represent the LLC because it would constitute the unauthorized practice of law by a non-attorney.

Accordingly, construction companies that are incorporated, or held by an entity, must retain counsel in order to present a defense. If counsel is not retained, the construction company will have a default judgment taken against it and would then have to hire an attorney to file a motion to set aside the default judgment.

This is not an outcome that you want to face as a business owner because additional work means additional billing by the attorney. The most economical solution in dealing with a construction law dispute is to nip the problem in the bud by addressing it head on. That does not suggest that it should be addressed with a hard head.

Instead, the mantra should be an ounce of prevention is worth a pound of cure. Get your attorney involved from the beginning of the project, so you can avoid failing into the litigation sandpit.

St. Louis, MO Mechanic’s Lien Law

Cracked Sidewalk & Bulldozer

Missouri Mechanic’s Lien Law Questions

What is a Mechanic’s Lien?

A mechanic’s lien is a means, created by statute, for suppliers of labor and/or materials to put a security interest onto real property in order to ensure payment of the work performed or materials provided.

A mechanic’s lien is a hammer for general contractors and subcontractors that need to collect payment on a construction project.

In Missouri, a lien is a way for the unpaid contractor or supplier to put an encumbrance on the real property without having to request an order from the court.

The contractor or supplier can simply file a mechanic’s lien statement with the Circuit Court in the county in which the property is located.

The interesting part about a mechanic’s lien is that the owner may have paid the general contractor, but an unpaid subcontractor or supplier can still encumber the property.

This means that the owner may ultimately pay twice for the work performed on the project.

Because there are strict requirements for filing a mechanic’s lien, contractors should contact an experienced construction law lawyer to assist them in preparing the same.

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How does a Mechanic’s Lien Work?

A mechanic’s lien is a statutorily created means for a contractor to take a security interest in property upon which the contractor has performed work.

This is a safeguard chiseled out by the legislature for the benefit of contractors and subcontractors performing on construction projects.

Once a mechanic’s lien is properly filed in the Circuit Court of the county in which the subject property is located, the lien sits idly on the property.

Look under the: “How does filing a mechanic’s lien get me paid” section for an explanation as to how an idle mechanic’s lien may still be working for you (at least from a practical standpoint).

After six months of sitting idly, the mechanic’s lien can be vitiated and cleared from the title.  However, during the six months, a good construction law attorney will fully utilize the power of the lien and foreclose on the same.

The foreclosure of the lien is effectuated by the attorney’s filing of a petition.  This will institute the lawsuit that forecloses on the property (sells the property) in order to pay the lien off as well as any other encumbrances that exist at the time of the sale of the property.

As far as pecking order on the payout after the foreclosure sale, the encumbrances that have priority will be paid first. The remaining funds left over after the most senior encumbrance is paid off would then trickle down to the next party in line.

Because a mechanic’s lien can be rendered invalid if too much time passes, you should immediately consult with a construction lawyer to find out your timeline and how to best proceed in collecting for work performed on the construction project.

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How does filing a Mechanic’s Lien get me Paid?

A mechanic’s lien is a hammer in the construction law realm.  It attaches to an owner’s property, and if properly filed, cannot be vitiated unless 6 months pass without the contractor foreclosing upon the lien.

Often times property is not paid off by the owner and rather there is a mortgage & note on the property which is given by some lender, whether that be a financial institution, bank, or credit union.  The property and structures thereon are typically used as collateral to secure the note.  The mortgage, or in Missouri, more properly termed deed of trust, reflect the fact that the lender has a security interest in the property.

A mechanic’s lien is also a form of security interest in the property.  Thus, when a mechanic’s lien is filed, and a lender has a security interest in the property in question, there may be some issues as to who has priority in the collateral (property/buildings).

Because property is usually not paid off and is subject to the note that was used to purchase the same, the lender includes a provision in the deed of trust (or mortgage), which allows acceleration of the note in the event that there is a competing security interest.  The mechanic’s lien, in this case, would be the competing security interest.

Therefore, from a practical standpoint, the owner faces incredible pressure from a few things: (1) there is an encumbrance on his/her property, (2) the note, which may be an exorbitant amount (and was originally intended to be paid over the course of 30 years or some other term), may be immediately due in full upon the filing of the mechanic’s lien–this is a result of the lender invoking the acceleration clause.

As soon as the lender invokes the acceleration clause, there is extreme pressure on the owner of the property to either get the lien off the property (which usually means payment), or to pay the note in full, which is often impossible or impracticable for the owner. This may force the owner to simply pay off the lien.

For the foregoing reasons, a mechanic’s lien is a very powerful tool for a contractor to force payment on a project where he has not yet received payment.

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What are the costs to file a Mechanic’s Lien in St. Louis?

A mechanic’s lien in St. Louis can be a relatively costly endeavor (depending on the project size).

Any construction lawyer that is diligently performing his/her work will most likely, prior to preparing the lien, run a title report, or what we call an O&E report (Ownership & Encumbrance report), that traces the chain of title.  This is important because it also locates all parties that have an interest in the real property upon which the lien is to be filed.

Because one of the requirements of filing a mechanic’s lien includes notice to all parties with an interest in the property, it is critical to know who has an interest in such property. These title reports range from $100 to $500 or more depending on the complexity of the property, legal description, and depending on the title company that is preparing the O&E report.

In addition to the O&E report, there will be a small cost of filing a mechanic’s lien in the Circuit Court of St. Louis County.

The website of the 21st Judicial Circuit Court of St. Louis County, Missouri has a filing fee listed as $5.00. See https://www.stlouisco.com/Portals/8/docs/document%20library/circuit%20court/circuit%20court%20pages/CirClerkFees2015.pdf for other filing fees at the St. Louis County Circuit Court.

Further, each mechanic’s lien must be served in a specific manner that is in accordance with the statutes of Missouri.  Thus, there will also be service fees depending on whether the sheriff or a special process server is used.

On top of the foregoing costs, a construction lawyer will be preparing the mechanic’s lien and depending on the lien, could spend several hours preparing the same. Accordingly, you will also incur a fair amount of attorney’s fees.

Keep in mind that some construction lawyers are flexible and will agree to a non-hourly fee  arrangement. For example, the lawyer may be willing to take the case on a contingency basis.

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What are the Costs to File a Mechanic’s Lien in St. Charles County Circuit Court?

The filing fees for a mechanic’s lien in St. Charles County Circuit Court, or what is sometimes referred to as the 11th Judicial Circuit Court, are $5. The filing fees for other cases in St. Charles can be found here.

Keep in mind that the total fees will not only be $5.  You will have service fees and attorneys fees as well.

Any time you are filing a mechanic’s liens, you need to be sure to serve the proper parties. This requires a title search to ensure that you are informing all parties with an interest in the property. A title search may be another expense incurred in the mechanic’s lien filing process.

Additionally, if you hire an attorney, you will incur attorney’s fees.

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What are the 4 Mechanic’s Lien Requirements in St. Louis?

In addition to any notice required, the applicable statute, Section 429.080 of the Missouri Revised Statutes, generally sets out four requirements to properly file a mechanic’s lien statement:

(a) a just and true account of the demand;

(b) a true description of the property, or so near as to identify the same;

(c) the name of the owner or contractor, or both if known to the person filing the lien; and

(d) verification by the oath of himself or some credible person for him

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Who Must be Made a Party in the Mechanic’s Lien Lawsuit?

Missouri Revised Statutes section 429.190 states

  • all persons who were parties to the contract must be parties
  • all persons who are “interested in the matter in controversy” or in the property charged with the lien may be parties
    • If the interested persons are not made parties, however, then the Court will not be able to bind them with the rulings in the proceeding

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Do I have to have a written agreement to file a Missouri Mechanic’s Lien?

No. However, there are certain notice requirements that have to be provided to the owner prior to the filing of a lien.  If these notices are not provided, the lien could have deficiencies and ultimately be rendered invalid (vitiated).

The FAQs throughout this website discuss the importance of the various lien notices that need to be given on construction projects.

The notice of intent to file a mechanic’s lien statement as well as the 429 notice that needs to be provided to the owner (warning of the danger of double payment if lien waivers are not secured) are two examples of required notice that subcontractors and contractors have to give, respectively.

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What is a general contractor’s duty when a mechanic’s lien is filed in Missouri?

R.S.Mo. section 429.140 states the following, generally:

If anyone other than the general contractor files a lien, the general contractor has the duty of defending any action brought to foreclose on the lien.  The general contractor shall defend such suit, at his own expense.

The owner has the right to withhold the amount of money that the lien was filed for and in the event that the plaintiff foreclosing on the lien takes judgment, the owner is allowed to deduct the amount of the judgment and costs from any amount owed to the contractor.

The owner then has rights to indemnification from the general contractor for amounts for which the general contractor was originally liable.

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What Statute Creates Missouri Mechanic’s Liens?

Chapter 429 of the Missouri Revised Statutes governs mechanic’s liens.  Specifically, section 429.010 of the Revised Missouri Statutes sets forth the rights of persons providing work, labor or supplies on a building, erection, or improvement, and grants them lien rights.

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How Long Do you Have to File a Mechanic’s Lien in Missouri?

Section 429.080 of the Missouri Revised Statutes governs the amount of time that a claimant has to file a mechanic’s lien.  The specific language of the statute says the mechanic’s lien must be filed “within six months after the indebtedness shall have accrued.” The indebtedness is typically deemed to be accrued on the last day the work is performed.

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I know I have 6 months to file a Mechanic’s Lien, but when does the clock start ticking?

Generally, a contractor has 6 months from the date the work was last performed on the project or from the date that materials were last supplied to the project. The actual language is: the lien must be filed: “[w]ithin six months after the indebtedness shall have accrued …” R.S.Mo. § 429.080.

“The date the ‘indebtedness has accrued’ is the last day work was performed or material incorporated.” Midwest Floor Co. v. Miceli Dev. Co., 304 S.W.3d 247.

This makes the last day work performed or material incorporated an important date for contractors to pay attention to when performing construction work.

This date is strictly measured by work performed pursuant to the contract.

After the owner accepts the work as substantially complete on the project, any further labor provided by the contractor is not lienable. Brown v. Davis, 249 S.W. 696, 698 (Mo.App.St.L.1923).

The foregoing statement, thus, means that a contractor does not have lien rights for work that is performed pursuant to a warranty or for repairs performed as the result of a callback from the owner.

Here’s an excerpt of applicable case law: “A subcontractor cannot, after the termination of an account, extend the mechanic’s lien filing time by rectifying some fault of his in performing the contract.” S & R Builders & Suppliers, Inc. v. Marler, 610 S.W.2d 690, 693 (Mo. Ct. App. 1980).

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Does my work have to improve the property to be able to file a Mechanic’s Lien?

In the case of Brownstein, the Missouri Supreme Court addressed the issue of improvements in the context of an architect’s lien, stating the following: “To hold that § 429.015.1 allows an architectural lien to attach where the services of an architect are not employed in “erection or repair of any building or other improvement” would fly against the plain meaning of the statute’s terms.” Brownstein v. Rhomberg-Haglin and Associates, Inc., 824 S.W.2d 13, 16 (Mo., 1992).

The Court goes further to state: “[t]o qualify, the person seeking the lien must have provided in his professional capacity either labor or materials used for improving the land.” Id. This extended to the work performed by the architect, if the contractor generally used the plans to perform improvements on the construction project.

“The legislature did not intend a mechanic’s lien to attach where none of the labor or materials of the builder were used in the improvement of the property. To qualify (for a lien) the person seeking the lien must have provided in his professional capacity either labor or materials used for improving the land.” Space Plan. Arch. v. Frontier Town-Missouri, 107 S.W.3d 398 (Mo. App., 2003).

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When is Machinery Lienable?

“The intention of [Missouri] law is to give a lien where the machinery furnished is intended by the owner to become a part of the building, manufactory, or plant; and it is immaterial whether this occurs when the building was originally constructed, or when the owner converts an existing building into a manufacturing.” plant.  Bush Machinery v. Kansas City Factory, 81 S.W.3d 121 (Mo. App., 2002) (citing Progress Press-Brick Machine Co. v. Gratiot Brick & Quarry Co., 151 Mo. 501, 52 S.W. 401, 402 (1899)).

“The Supreme Court of Missouri held that the meaning behind the mechanic’s lien statute: indicates that that machinery must be such as is used in the erection of a building, and which will, when placed in the building, erection or improvement on the land, become a fixture, and become a part of the realty, or at least such as is necessary in the erection of the improvement to be made.” Bush Machinery v. Kansas City Factory, 81 S.W.3d 121 (Mo. App., 2002)(citing Springfield Foundry & Machine Co. v. Cole, 130 Mo. 1, 31 S.W. 922, 924 (1895)(quoting Graves v. Pierce, 53 Mo. 423, 428-29 (Mo.1873)).

“Further, because the machinery in that case was not placed in the building, it: became no part of the realty, and no improvement thereon; and inasmuch as the machinery placed in said building was not placed therein in the erection of said building or as an improvement thereto, but was placed there solely for mining…, it formed no part of said building, but remained personalty, and plaintiff was not entitled to a mechanic’s lien.” Bush Machinery v. Kansas City Factory, 81 S.W.3d 121 (Mo. App., 2002).

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Does Every Piece of Material have to go into the Structure to have a Valid Missouri Mechanic’s Lien?

“In order to maintain a lien for materials furnished, it is not necessary in all cases that such materials should actually have gone into the structure and form a part thereof. It is sufficient that their use was necessary, and they were, in fact, used or consumed in the building.” Oliver L. Taetz, Inc. v. Groff, 253 S.W.2d 824, 363 Mo. 825 (Mo., 1953)(citing Rapauno Chem. Co. v. Greenfield & N. Ry. Co., 59 Mo.App. 6.

The Court went on to find that heating oil was lienable. It also stated that other minor items which were necessary for use on the construction project like brushes and steel wool were also found to be lienable items. Oliver L. Taetz, Inc. v. Groff, 253 S.W.2d 824, 363 Mo. 825 (Mo., 1953).

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What happens if My Mechanic’s Lien Accounting is Inaccurate? What is a Just and True Account?

A lien statement may be regarded as just and true if it contains mistakes or errors of omission, as long as those inaccuracies are unintentional and are the result of honest inadvertence, accident, or oversight, and do not result from deliberate intention or design. Dave Kolb Grading, Inc. v. Lieberman Corp., 837 S.W.2d 924 (Mo. App. E.D., 1992)(citing Putnam v. Heathman, 367 S.W.2d 823, 829 (Mo.App.1963)).

Another case states: “`A lien statement may be regarded as just and true, so as not to vitiate the entire lien, if the inclusion of a nonlienable item is the result of honest mistake or inadvertence without intent to defraud and if the nonlienable items can be separated from the lienable items.'” Glenstone Block Co. v. Pebworth, 264 S.W.3d 703 (Mo. App., 2008)(citing Am. Prop. Maint. v. Monia, 59 S.W.3d at 643)(quoting Dave Kolb Grading, Inc. v. Lieberman Corp., 837 S.W.2d 924, 941 (Mo. App. E.D., 1992)).

Although there is no precise definition of “just and true,” whether a lien statement meets those requirements depends upon the facts of each particular case. Dave Kolb Grading, Inc. v. Lieberman Corp., 837 S.W.2d 924 (Mo. App. E.D., 1992)(citing Sears, Roebuck & Co. v. Seven Palms Motor Inn, Inc., 530 S.W.2d 695, 698 (Mo. banc 1975)).

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Can General Contractors Include Work Performed by Subcontractors in their Mechanic’s Liens?

Generally yes.  As long as the general contractors are not attempting to “double dip,” Missouri courts, citing the remedial purpose of the mechanic’s liens statutes, will allow a general contractor to include the work of a subcontractor in its lien:

We are to construe the statute “as favorably to the materialman as its terms permit.” Midwest Floor Co. v. Miceli Dev. Co., 304 S.W.3d 243, 248 (Mo. Ct. App. 2009).
“Therefore, we hold that lien claimants may include the work performed by subcontractors in their mechanics’ lien.” Id. 

Missouri Mechanic’s Lien Notice

What is 429 Notice Pursuant to Missouri Mechanic’s Lien Law?

429 Notice is the typical lingo used by construction law lawyers that refers to the notice that contractors need to provide to preserve the right to file a lien on property. R.S.Mo section 429.012 lays out the requirements for 429 lien notice.

The statutory language needs to be given to the owner to preserve the lien rights and requires that the following language be used:

NOTICE TO OWNER

FAILURE OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL OR SERVICES TO COMPLETE THIS CONTRACT CAN RESULT IN THE FILING OF A MECHANIC’S LIEN ON THE PROPERTY WHICH IS THE SUBJECT OF THIS CONTRACT PURSUANT TO CHAPTER 429, RSMO. 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 MATERIAL TWICE.

A good construction law attorney will ensure that this language is contained in your contract, your invoices, and any estimates provided to the owner.

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When does 429 Mechanic’s Lien Notice Need to Be Given by the Contractor?

R.S.Mo Section 429.012 requires that the lien claimant provide notice to the owner or to the person with whom the contractor has a contract, “prior to receiving payment in any form of any kind from such person.”

The applicable statute continues by enumerating several times when the notice should be provided:

(a) at the time of the execution of the contract

(b) when the materials are delivered

(c) when the work is commenced, or

(d) delivered with the first invoice

A good construction law lawyer will insert the above language into most of your documentation, including the construction contract, the invoices, estimates, and any correspondence that you send to the owner.  This will remove all doubt as to whether the proper notice was required.  For that reason, it is important to contact a construction law attorney to make sure that you are in compliance with not only the 429 mechanic’s lien notice, but all statutory requirements.

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Who needs to give 429 Mechanic’s Lien Notice and to whom does it need to be given?

Every original contractor has to give the notice. The notice needs to be given to the person with whom the contract is made, or if there is no contract, then notice needs to be given to the owner.

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What Happens if You Fail to Provide the 429 Mechanic’s Lien Notice?

The lien will be invalid and the owner’s title will be free of any such liens.  The applicable statutory section is R.S.Mo. section 429.012.2, which states “[c]ompliance with [429 mechanic’s lien notice] shall be a condition precedent to the creation, existence or validity of any mechanic’s lien in favor of such original contractor.”

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What Notice Does a Subcontractor Have to Provide Before Filing a Missouri Mechanic’s Lien?

The notice depends on whether the subcontractor is performing work on a residential or commercial project.  It also depends on whether the project is owner-occupied and whether the property contains four units or less. R.S.Mo. § 429.013.1. The definitions of owner-occupied, residential property, and other terms that are relevant to subcontractors’ lien notice requirements are set forth throughout these FAQs.  R.S.Mo. § 429.013.1.

If the subcontractor is filing on residential property of four units or less that is owner-occupied, then the subcontractor must have a consent of owner, which states the following:

CONSENT OF OWNER

CONSENT IS HEREBY GIVEN FOR FILING OF MECHANIC’S LIENS 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. R.S.Mo. § 429.013.2.

The owner must also sign a document containing the above notice, and such notice and signature must be attached to the lien.  If there are multiple owners, the signature of one of the owners will be satisfactory to represent that of all of the owners. R.S.Mo. § 429.013.3.

If the subcontractor does not have the above-described notice signed by the owner of residential property of four units or less and said residential property is owner-occupied, then the subcontractor does not have lien rights on the property, despite providing notice of intent to lien or any other notice.

In any case, if the subcontractor complies with the rigorous standards of 429.013 or does not fall within the purview of said statute, the subcontractor will still have to provide the Notice of Intent to file a Mechanic’s Lien, regardless of whether the project is residential or commercial.

A fuller description of the notice of intent requirements are set forth below.

What does “Owner” mean under Missouri’s Subcontractor Lien Statutes?

Owner means “the owner of record at the time any contractor, laborer or materialman agrees or is requested to furnish any work, labor, material, fixture, engine, boiler or machinery.” R.S.Mo. § 429.013.1

What does Owner-Occupied Mean in the context of a Subcontractor Lien Filing on Residential Property?

Owner-occupied is the “property which the owner currently occupies, or intends to occupy and does occupy as a residence within a reasonable time after the completion of the repair, remodeling or addition which is the basis for the lien sought, pursuant to this section.” R.S.Mo. § 429.013.1.

What is considered Residential Property in the context of a Subcontractor’s Lien Filing in Missouri?

“[P]roperty consisting of four or less existing units to which repairs, remodeling or additions are undertaken. This section shall not apply to the building, construction or erection of any improvements constituting the initial or original residential unit or units or other improvements or appurtenances forming a part of the original development of the property.” R.S.Mo. § 429.013.1.

What is a Notice of Intent to File a Mechanic’s Lien?

Section 429.100 of the Missouri Revised Statutes states that all persons except the original contractor, who wish to file a mechanic’s lien, must provide 10 days’ written notice before filing the lien.  Lawyers in the construction law industry call this 10 day notice the “notice of intent” to file a mechanic’s lien statement.

If you need help filing a notice of intent to file a mechanic’s lien contact one of our lawyers here.

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What language is required in the Notice of Intent to File a Mechanic’s Lien?

Pursuant to R.S.Mo. section 429.100, the notice of intent to file a mechanic’s lien must include information regarding the subcontractor and must state that said subcontractor holds a claim against the building or improvement (which will be the subject of the lien), and it must set forth the amount and from whom the same is due.

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How is proper service made regarding the Notice of Intent to File a Mechanic’s Lien?

Pursuant to R.S.Mo. section 429.100, the notice of the intent to file a mechanic’s lien should be served by any police officer authorized by Missouri law to serve process in civil actions, or by anyone who would be a competent witness.

In the event the notice of intent to file a mechanic’s lien is served by a police officer, the official return with an endorsement on it will be sufficient proof. However, when the notice of intent is served by any other person, the proof of service must be verified by affidavit of the person serving the same.

These service rules are an important part of properly serving the notice of intent and thus preserving one’s rights to file a subsequent mechanic’s lien.

However, Missouri courts have taken a more lenient approach on the basis of equitable principles, stating “the manner of service is immaterial where it clearly appears that the owner actually received adequate written notice not less than ten days prior to the filing of the lien claim.” Kingston Elec., Inc. v. Wal-Mart Properties, Inc., 901 S.W.2d 260 (Mo. App. E.D., 1995).

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Missouri Mechanic’s Liens Miscellaneous Laws

Who needs to be a party to a Mechanic’s Lien Foreclosure Action?

In all suits to foreclose on a Missouri Mechanic’s lien, the person foreclosing on such lien shall bring all other persons interested in the matter in controversy or in the property charged with the mechanic’s lien. R.S.Mo. 429.190

If the individuals/persons/entities are not made a party to the lien foreclosure action, then the parties will not be bound by such proceedings. R.S.Mo. 429.190

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When do I need to File a Release of a Mechanic’s Lien?

This is a very fact specific question better left for your attorney.  Your attorney knows the specific facts, dealings between the parties, as well as whether payment has been received from the owner or general contractor on the project.

Typically, a lawyer would be well-advised to instruct his client to refrain from filing a release of mechanic’s lien until payment in full has been received and has cleared the bank.  The release of mechanic’s lien is then filed which clears up the title.

It’s similar to what a bank or financial institution would file after a note is paid off.  The mortgage or deed of trust (in Missouri) is then released by filing a release of deed of trust.

Releases of Mechanic’s liens should be treated similarly.  Please note, however, that releasing a mechanic’s lien constitutes a release of an important substantive right to collect on the project.  It is a big decision to release a lien, so you should always consult with an experienced construction lawyer before taking such drastic measures.

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Can I put a lien on City Hall if the Government fails to pay me on a Project?

No. When the government owns property, Missouri law forbids a lien because Missouri has a strong public policy against liens on public property.  Not only would it be embarrassing for the governmental entity, but it would call into question the sovereignty of the state, city, or respective governmental entity.

The example above is City Hall, but this public policy applies to all buildings and/or property owned by governmental entities, whether that entity be a state, city, municipality, or even some quasi-private actor, who has a public purpose or is progressing the government’s objectives by protecting or serving the public interests.

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What Missouri Law Prevents me from Liening a Building Owned by a Public Entity?

Pursuant to Missouri Revised Statutes section 513.455, buildings owned by a governmental entity are protected from the attachment of a lien.

R.S.Mo. 513.455 states the following: “All courthouses, jails, clerks’ offices and other buildings owned by any county or municipality, and the lots on which they stand, and all burial grounds, shall be exempt from attachment and execution.”

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Can I put a Mechanic’s Lien on Property if Title is Held by Husband and Wife?

In Missouri, there is special protection carved out for a husband and wife who jointly own property.  Typically a co-tenancy between a husband and wife would create a joint tenancy in many states, like Kansas for example.

In Missouri, however, a tenancy by the entirety is created when a husband and wife co-own a property. This type of co-ownership (tenancy by the entirety) creates a protection or shield on the property from creditors’ liens, unless both the husband and wife are debtors of the creditor filing the lien.

From a practical standpoint, this means that one of the spouses acting individually cannot subject the property to a mechanic’s lien.  The contractor would have to have a contract with both the husband and wife.

In some Missouri cases, however, one of the spouses may act on behalf of the other (as their agent) and subject their property to a lien.

In such a case, the issue as to whether the non-participating spouse had sufficient participation in the transaction as to make them a responsible party will determine the validity of the lien.

One Missouri Court generally addresses these circumstances:

[I]t is now definitely established that the husband alone has no such interest in an estate by the entirety as can be subjected to a mechanic’s lien…nor will mere knowledge on the part of the wife that a building or other improvement is being erected on her real estate, and passive acquiescence therein on her part, be sufficient in and of itself to show that the husband acted as her agent in making the contract, so as to bind her personally, or warrant the charging of a lien against her property for the cost of materials entering into the construction of the building or improvement. [Citations omitted] Kurtz v. Field et al., 14 S.W.2d 9, 223 Mo.App. 270 (Mo. App., 1929).

In Boeckeler Lumber Co. v. Wahlbrink, the Court held that because the wife signed the deed of trust, note, and other documents to obtain financing, the Court said the wife was charged with acquiescing in the work.  Consequently the property was lienable despite the tenancy by the entirety.  Boeckeler Lumber Co. v. Wahlbrink, 177 S.W. 741, 191 Mo. App. 334 (Mo. App., 1915).

This is one reason why a contractor should always gather the appropriate information before beginning a project.  Specifically, a contractor should at least ask the marital status of the party with whom the contractor is interacting or some other appropriate questions to determine the true legal owner of the property.  In the event that any questions are raised, the contractor should pull the deed from the county’s recorder of deeds office.

Contractors should always consult with a construction lawyer as the lawyer can properly advise the contractor regarding his/her/its legal rights.

Contact one of our construction law attorneys to ensure that your contract is properly structured and the right parties are joined thereto in order to preserve your mechanic’s lien rights.

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What Happens if You Falsify a Mechanic’s Lien?

First off, a lien has to be notarized, which means you’ve publicly filed a false, sworn statement.

This type of conduct could have criminal ramifications, as the prosecution could try to make a perjury argument.

Additionally, you may face civil claims such as slander of title, which is the malicious publication of false words concerning title which result in damages for the plaintiff.

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What is a Slander of Title Claim in Relation to a Mechanic’s Lien?

The filing of a Mechanic’s lien with the wrong intentions, or abusing the process, can give rise to a slander of title claim.

“Slander of title has three essential elements: (1) false words concerning title to property; (2) malice in the publication of such; and (3) injury to the party whose title was slandered.” Arbors At Sugar Creek Homeowners Ass’n, Inc. v. Jefferson Bank & Trust Co. (Mo. App., 2014) (quoting Tongay v. Franklin Cnty. Mercantile Bank, 735 S.W.2d 766, 770 (Mo.App. E.D. 1987)).

Proof of falsity, alone, is not proof of malice. First Nat. Bank of St. Louis v. Ricon, Inc., 311 S.W.3d 857, 867 (Mo. Ct. App. 2010).

“To support an action for slander of title, there must be false words that are maliciously published, causing the plaintiff to suffer a pecuniary loss or injury.” First Nat. Bank of St. Louis v. Ricon, Inc., 311 S.W.3d 857 (Mo. App., 2010) (quoting V.J.M. Assoc., Inc. v. Gilmore,44 S.W.3d 440, 441 (Mo.App. E.D.2001)).

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What are the Damages Permitted in a Missouri Slander of Title Claim?

Compensatory damages, punitive damages, and attorneys fees may be recovered in a slander of title claim.  See First Nat. Bank of St. Louis v. Ricon, Inc., 311 S.W.3d 857, 868 (Mo. Ct. App. 2010).

“[A]ttorney’s fees and other legal expenses incurred in clearing the disparaged title are recoverable as damages in the common law action of slander of title. Lau v. Pugh, 299 S.W.3d 740, 748 (Mo. Ct. App. 2009)(citing Rorvig v. Douglas, 123 Wash.2d 854, 873 P.2d 492 (1994)).

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Can I file a mechanic’s lien if I don’t have a contract with the owner?

Yes. Subcontractors, suppliers, and other persons or entities who provided labor or supplies on a construction project generally have the right to assert mechanic’s liens in Missouri, even if they do not have a direct contract with the owner.

However, the person or entity asserting the lien has to show a contractual chain or basically contractual privity between all the parties leading from the person or entity asserting the lien to the owner. Additionally, the lien claimant must comply with any remaining statutory requirements such as notice to interested parties, notarizing the lien, stating the amounts due and owing, and other applicable provisions discussed herein.

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What does it mean to be tiered out in the construction law context?

In the construction law context, attorneys refer to being “tiered out” as being too many tiers removed on a construction project.  Each contractual relationship between two parties constitutes the creation of a tier.  Some courts refer to a tier as the amount of contractual separation between the entity and the contractor.

So the example would be a second-tier contractor deals with a party that has a contractual relationship with the contractor.

When a party is too far removed, contractually, on certain projects, depending on the state and/or whether federal law is applicable, that party may not have lien rights on the property.

In Kansas, for example, in order to have valid lien rights, the entity must have at least had a contract with a subcontractor.  If an entity has a contract with a subsubcontractor, then that entity will not have valid lien rights as it will be too far removed, or what is typically termed “tiered out” of its lien rights.

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Can I be tiered out of Mechanic’s Lien rights in Missouri?

In Missouri, a claimant is limited to a limited number of contractual tiers in which the contractor can be removed from the owner and still have valid lien rights.

Essentially this means that if a contractor if further removed than the supplier to a subcontractor, then that lien claimant’s right to file a mechanic’s lien no longer exists.  In addition to falling into the limited tier requirement,  the claimant must also prove that there’s a chain of contracts that leads back to the owner, then assuming all other statutory requirements are met, the claimant will have valid lien rights.

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Missouri Mechanic’s Liens Priority

Priority of Mechanic’s Liens in Missouri

The priority of a mechanic’s lien and a deed of trust in the construction law context is governed by when the document is recorded.  However, there are special rules that are particular to construction that affect which encumbrance is senior to the other.

Let’s look at the specific rules.

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Does a Mechanic’s Lien take Priority over a Deed of Trust (Mortgage) in Missouri?

As noted above, this depends on the timing of the filing in either the recorder of deeds office (deed of trust) or with the circuit court (mechanic’s lien).

However, just because a deed of trust is filed before a mechanic’s lien is filed does not mean that the deed of trust has priority over the lien.

One reason the deed of trust may be junior to the mechanic’s lien is due to a doctrine in construction law called the first spade rule.

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What is the First Spade Rule?

“All mechanics’ liens commence at the date of the first stroke of the axe or spade, and continue in the erection of [a structure] without regard to the time of their being filed, or of the doing of the work or furnishing the materials.” Grau Contracting, Inc. v. Captiva Lake Invs., LLC (Mo App. 2014)(quoting Schroeter Bros. Hardware Co. v. Croatian “Sokol” Gymnastic Ass’n, 58 S.W.2d 995, 1003 (Mo. 1932)).

This benefit to contractors comes from the powers granted in section 429.060 of the Missouri Revised Statutes and states the following, in relevant part:

The lien for work and materials as aforesaid shall be preferred to all other encumbrances which may be attached to or upon such buildings, bridges or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.

http://www.moga.mo.gov/mostatutes/stathtml/42900000601.html

This statute gives a mechanic’s lien priority over other encumbrances that attach after the work has begun.

However, there is a distinction between whether deeds of trust or mechanics’ liens have priority over the land and/or building. There is another statute that governs deeds on the building, structure, or improvements.

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Is there a difference in priority if the mechanic’s lien attaches to the structure instead of the land?

Yes.  A different statute governs priority with respect to the structure.

Under section 429.050 of the Missouri Revised Statutes, a mechanic’s lien claimant has better protection when the encumbrance relates to the building or structure:

The lien for the things aforesaid, or work, shall attach to the buildings, erections or improvements for which they were furnished or the work was done, in preference to any prior lien or encumbrance or mortgage upon the land upon which said buildings, erections, improvements or machinery have been erected or put; and any person enforcing such lien may have such buildings, erections or improvements sold under execution, and the purchaser may remove the same within a reasonable time thereafter; provided, that nothing contained in this section shall be so construed as to allow any such sidewalk as is mentioned in sections 429.010 to 429.340 to be so sold under execution or so removed.
http://www.moga.mo.gov/mostatutes/stathtml/42900000501.html
This statute basically says that a mechanic’s lien on a building, structure, or improvements takes priority over any other encumbrance.
That’s a big distinction from the priority a mechanic’s lien has on land (which is only on third party encumbrances that were filed after the construction work started).

For purposes of lien priority, does it matter if I have a purchase money mortgage or just an ordinary mortgage?

Generally it does not (there’s an exception discussed below).  When determining priority between liens and mortgages (deeds of trust), whether it be a purchase money mortgage or otherwise, typically all mortgages are treated the same.
Missouri mechanic’s lien statutes (specifically sections 429.050 & .060) govern the priority of a mechanic’s lien while the recording statutes govern the priority of a purchase money mortgage.
However, as noted regarding the building, structure, or improvements, the mechanic’s lien takes priority regardless of the type of mortgage.
Similarly, regardless of the type of mortgage/deed of trust, whether the work begins first or whether the mortgage is filed first determines which encumbrance takes precedence as to the land.
Below is an exception where the purchase money mortgage actually would take precedence on the real estate.

What is the Common Legal Learning Exception with respect to Lien and Mortgage Priority ?

In rare circumstances, a purchase money mortgage may take priority over the mechanic’s lien based on the common legal learning exception.  This is basically a concept set forth in section 7.2(b) of the Restatement (Third) of Property (Mortgages) and states the following:

A purchase money mortgage, whether or not recorded, has priority over any mortgage, lien, or other claim that attaches to the real estate but is created by or arises against the purchaser-mortgagor prior to the purchaser-mortgagor’s acquisition of title to the real estate.

The policy behind this is to protect the purchase-money mortgage from liens or claims that existed on the property prior to the closing and that would attach at the same time as the purchase-money mortgage.

One common situation where this might happen is if the contractor begins work on the property before the closing.

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Other Missouri Liens

What other liens are there besides Mechanic’s Liens?

As you may be aware, contractors, subcontractors, suppliers, and laborers have the ability to file a mechanic’s lien, which is set forth in section 429.010 of the Missouri Revised Statutes.  Chapter 429, however, does not only define mechanic’s liens but includes numerous other types of liens that may be filed by participants on a construction project in Missouri.

There is also something called a design professionals lien, which encompasses liens by architects, engineers, landscape architects, and surveyors.

Persons that perform work on railroads such as contractors, subcontractors, fuel and material suppliers, and/or laborers have lien rights on the property that is owned by the railroad company, but the requirements to perfect these liens are much more stringent than a mechanic’s lien.

One example of the stricter requirements lies in the amount of time the entity has to file the lien. Instead of having 6 months to file the lien (amount of time a contractor, subcontractor, or supplier has to file a mechanic’s lien in Missouri), the contractor, subcontractor, or supplier has 90 days.

In addition, commercial real estate brokers who sell commercial real estate may be able to file a lien on the property that was sold.

There are also certain types of liens called equitable liens, but these types of liens have an element that requires that no other remedy be available for the person or entity asserting the lien.

Because Chapter 429 sets forth numerous types of liens and remedies for contractors, subcontractors, suppliers, and laborers, rarely, will you see an equitable lien in the context of a construction project.

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Can Laborers individually file a lien for unpaid wages?

Yes. Section 429.010 grants lien rights to laborers who have unpaid wages on a construction project.  Pursuant to the statutes, laborers that have direct interaction with the owner are supposed to provide 429 notice that general contractors are required to provide for mechanic’s liens.

However, laborers may receive more lenient treatment when attempting to file liens.  For example, in the BCI Corp. v. Charlebois Constr. Co., the Missouri Supreme Court reviewed the case on appeal and held that the laborer did not have to provide the 429 notice required of general contractors, nor did the laborer have to provide the 10 day notice of intent to file a mechanic’s lien, which is required of subcontractors.  See BCI Corp. v. Charlebois Constr. Co., 673 S.W.2d 774 (Mo. Banc 1984).

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Mechanic’s Lien Law Attorney

If you need further information regarding the filing or defense of mechanic’s liens, please contact one of our mechanic’s lien law attorneys today.

St. Louis Construction Defect Lawyer

Demolition of Building

Litigating Construction Defect Claims

The Construction industry has numerous complexities and a lot of moving parts.  After performing hundreds a projects an experienced contractor will inevitably face defects in the work of one of the subcontractors on the project.

When the construction work is defective, someone will have to incur additional expenses.  As we all know, the likelihood that someone will voluntarily assume the expenses is low to non-existent.

Therefore, when a defect occurs on a construction project, the contractor has to immediately think that the dispute may result in litigation.

Consequently, the contractor should prepare the documentation and take any proper steps preparing to litigate the dispute, which usually should include the retention of an attorney.

While this cynical approach was not intended to encourage lawsuits, the reality is that contractors need to be precautious in order to protect themselves if the dispute proceeds to litigation.

One important tip is to maintain organized and thorough documentation. Maintaining proper documentation can greatly reduce attorney’s fees and expedite resolution of the matter.

First, and ideally before a construction defect claim arises, make sure to keep detailed records of the project, including all correspondence.

It is important to document all communications between the parties on a construction project because the contract and ultimately the parties’ intent may be determinative of the outcome in a construction defect case.

The documentation of the parties’ communications may be important because the communications may speak to the intent.

Additionally the communications may be fuel for the construction defect lawyer to use throughout the litigation.

Damaging statements by the opposing side can be your attorney’s sword to leverage you into a favorable settlement or assist you in collecting payment on the project

Even if you are unable to adequately prepare, we have construction lawyers who can help you fight through the process and either get you the compensation to which you are entitled or to require the subcontractor to make any and all necessary repairs to rectify the shoddy work.

Assistance with Your Construction Defect Claim

Construction can often be a complex process, and not all companies are suited to perform construction work.

Other companies are well-equipped to perform the same but still may find themselves dealing with construction defect claims.

Regardless of where your company falls, defect claims will arise in the construction context.

If/When that situation occurs, we have attorneys who are well-versed in handling construction defect claims from start to finish, and we would be glad to review your case.

If you need assistance with a matter, please contact a construction law attorney at our firm.

If you are need of a construction litigation attorney, please contact one of our lawyers.