St. Louis Attorney Discusses Mechanic’s Lien Notice
Notice is an important part of the lien process. In fact, it’s an indispensable part. Without notice, you cannot have a valid mechanic’s lien in Missouri.
This article aims at educating the reader on 5 different thoughts surrounding Missouri mechanic’s liens and a few facts you should probably know if you’re a construction company owner or contractor.
First, let’s look at the notice that general contractors need to provide.
1. General Contractors Must Provide 429 Lien Notice
A general contractor is required to provide notice for every mechanic’s lien. The statute, R.S.Mo. section 429.012, even states that provision of the 429 notice is a condition precedent “to the creation, existence or validity of any mechanic’s lien in favor of such original contractor.”
So, what is 429 notice? It is notice to the owner to alert them that they could pay for materials twice if they do not obtain lien waivers from the general contractor.
The 429 lien notice must state the following in ten-point bold type font:
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.
2. Subcontractors Must Provide Notice of Intent
In order to have valid lien rights on a Missouri construction project, a subcontractor has to give a notice of intent 10 days prior to filing the mechanic’s lien.
As you may be aware, the lien law in Missouri is six months from the last day worked or materials were supplied. As such, you must provide notice of intent to lien more than 10 days prior to the mechanic’s lien filing deadline because 10 days must pass before filing a mechanic’s lien.
The mechanic lien notice requirement for a Missouri subcontractor is set forth under 429.100, and states the following, in pertinent part:
Every person except the original contractor, who may wish to avail himself of the benefit of the provisions of sections429.010 to 429.340, shall give ten days’ notice before the filing of the lien, as herein required, to the owner, owners or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount and from whom the same is due.”
Who can serve the lien notice?
“Such notice may be served by any officer authorized by law to serve process in civil actions, or by any person who would be a competent witness.” R.S.Mo 429.100
3. Notice will Always Be Required by a Lien Claimant
As discussed above, notice is required by a general contractor and is found under 429.010.
Because a general contractor always has to give notice pursuant to section 429 of the Missouri Revised Statutes, the general contractor should have all contracts and other documentation relating to the project chocked full of 429 notice language.
That way, if there’s a question about notice, and all of your paperwork shows the 429 notice language, then you can easily prove that notice was provided.
Additionally, all subcontractors must provide notice of intent as described above. That makes up all potential mechanic’s lien claimants on the project.
Thus, notice must be given by any party who wishes to file a mechanic’s lien on the project.
For any subcontractors who need assistance in providing a notice of intent to file a mechanic’s lien statement, please contact one of our construction attorneys.
4. Lien Notice Compliance is Critical
Mechanic’s liens are creatures of statute as the Missouri courts love to say. From a practical standpoint this means that because mechanic’s lien rights are created through the statute, the lien claimant typically has to strictly comply with the statutory requirements.
If a contractor does not provide lien notice, it will be fatal to the lien. (Note: there is an exception case in Missouri where the court did not require notice, but it is an extreme rarity)
That’s why contractors should know what type of notice they have to provide (depending on their role on the project).
In addition to knowing what type of notice you need to provide, your documentation, such as contracts and invoices, need to be in compliance with Missouri lien statutes.
In order to properly prepare documentation to preserve your lien rights, you should consult with an attorney in the county in which you need to file the lien. This is the county where the project is located.
For help with mechanic’s liens in Jefferson County, St. Charles County, or St. Louis County, West County, or Ste. Genevieve County, please contact one of our mechanic’s lien attorneys here.
5. Subcontractors and Suppliers Will Rarely, if Ever, Have Lien Rights on a Residential Property of 4 Units or Less
Because Missouri lien law requires written consent from the owner of a residential property, you will rarely, if ever, have lien rights on such project. Why?
Because the statute requires the consent of the owner.
R.S.Mo. Section 429.013 prohibits a subcontractor from having a lien on owner-occupied residential property (of 4 units or less):
unless an owner of the building or structure pursuant to a written contract has agreed to be liable for such costs in the event that the costs are not paid. Such consent shall be printed in ten point bold type and signed separately from the notice required by section 429.012 and shall contain the following words:
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
In order for any subcontractor to have valid lien rights on an owner-occupied residential building of four units or less, the subcontractor must attach “a copy of a consent in the form prescribed in subsection 2 of [R.S.Mo.] section , signed by an owner,  to the recording of a claim of lien.” R.S.Mo. 429.013.3
For that reason, it may be advisable to have a direct contract with the owner of the property when working on such residential units.
A direct contract can have advantages and disadvantages. Accordingly, You should discuss the specifics of your case with a knowledgeable construction law attorney.
As the statute sets forth above, the general contractor on the project would have to obtain consent from the owner.
A general contractor’s main goal is to land the job with the owner of the project, whether that be an owner of commercial property, owner of large residential property (apartment complex/condominiums), or even a homeowner.
Obtaining consent from the owner in order for subcontractors to have the right to file mechanic’s liens will not be a shining badge that will be well-received by the homeowner. In fact, it could be a deal breaker for the owner.
Accordingly, rarely, if ever, will a general contractor ask the owner of a construction project to sign a consent to lien form.
Mechanic’s Lien Attorney in St. Louis
Filing a mechanic’s lien is a detail-intensive task because you have to strictly comply with the statutes in order to avoid lien vitiation.
On top of that, there are numerous statutes regarding notice, lien requirements, and other caveats depending on the factual circumstances of your case.
You should always consult a construction law attorney if you are seeking to collect on a construction project.
If you need a lawyer to help you file a mechanic’s lien in the St. Louis area, you can contact a lien lawyer here.