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  • Homepage, (post date:2012-04-11 04:22:56)

    National Construction Documents Service

    Sed ut perspiciatis unde omnis iste natus error sit voluptatem accusantium doloremque laudantium, totam rem aperiam, eaque ipsa quae ab illo inventore veritatis et quasi. Sed ut perspiciatis unde omnis iste natus error sit voluptatem accusantium doloremque laudantium, totam rem aperiam, eaque ipsa quae ab illo inventore veritatis et quasi. Sed ut perspiciatis unde omnis iste natus error sit voluptatem accusantium doloremque laudantium, totam rem aperiam, eaque ipsa quae ab illo inventore veritatis et quasi. Sed ut perspiciatis unde omnis iste natus error sit voluptatem accusantium doloremque laudantium, totam rem aperiam, eaque ipsa quae ab illo inventore veritatis et quasi. [divider]

    Latest Articles

    [blog_grid column="3" showposts="3" disable="more,meta"]
  • About Us, (post date:2012-04-11 20:50:50)

    SunRay Construction Solutions is one of the country’s largest construction documentation services.

    If you’re a supplier or subcontractor to the construction industry, you need to secure your rights to get paid for your work. We take care of all your construction documentation needs. With over 18 years of experience in the construction industry, we understand how imperative it is to have proper research conducted, and how crucial time is when filing your business’ notices. Our team of industry experts will ensure your documentation is filed properly, on time, and according to your state’s specific requirements. We also keep track of all dates to make sure you never miss a deadline. For a nominal fee of $30 plus postage we can help secure your lien rights and your cash flow! At SunRay Construction Solutions we will help you let your customers know that you’re serious about getting paid – on your terms, not theirs!

    Sign up today to secure your tomorrow!

  • Contact Us, (post date:2012-04-11 20:52:37)
    [one_half] [fancy_box]

    Have a question, or would like to sign-up?

    Please fill out the form below and a Notice Specialist will contact you within the business day.[contactform email="cecil@firestormcs.com" subject="Contact Form Submission" success="Thank You! We will be in touch very soon." captcha="true"] [name label="Your Name:" required="true"] [textfield label="Company Name:" required="true"] [textfield label="Phone:" required="true"] [email label="Email Address:" required="true"] [textfield label="Street Address:"] [textfield label="City:"] [select label="State" value="Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District Of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, PALAU, Pennsylvania, PUERTO RICO, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming"] [textarea label="Questions or Comments:" required="true"] [select label="How Did You Hear About Us?" value="Flyer, Advertisement, Business Referral, Search Engine, Other"] [textfield label="Approximate Number of Notices Per Month:" required="true"] [submit value="Submit"] [/contactform][/fancy_box] [/one_half] [one_half_last]

    Contact an Office Near You!

    We currently have satellite offices in California, Illinois, Texas and Florida contactmap [margin20] [fancy_box title="Contact Us Today!"]
    SunRay Construction Solutions 2001 West Cypress Creek Rd, Suite 101 Ft. Lauderdale, Fl 33309 [email_link email="info@sunraynotice.com" variation="blue" target="blank"]info@sunraynotice.com[/email_link]
    Sales & Marketing: 954-491-9402 Operations: 954-491-9402 Toll Free: 877.564.4404 Fax: 954.491.1141
    [/fancy_box] [/one_half_last]
  • Preliminary Notice & Notice to Owner Pricing, (post date:2012-04-11 20:53:15)
    [css3_grid id='Table_t1_s1'][margin40]
  • Our Mission, (post date:2012-05-23 10:44:00)

    Our Mission and Vision

    Notice to Owner- Preliminary Notice- Liens - People

    SunRay Construction Solutions mission is to be the best and easiest construction document service in the USA.

    We fulfill that mission by:

    [fancy_list style="check_list" variation="orange"]
    • Maintaining the state-of-the-art preliminary notice/notice to owner system that ensures requests are sent timely securing lien rights for subcontractors and suppliers throughout the country.
    • It has always been, and will always be, about quality. We’re passionate about our services and we handle our research with great precision.
    • Actively listening to our customers to find out what they want and need, what we’re doing well and how we can improve – and then implementing many of their suggestions.
    • Providing ongoing training for every SunRay Construction Solutions employees ensuring they have the knowledge and expertise they need to provide world-class customer service.
    • Judging our own success by the success of our customers. We know that we will only be successful when our customers are successful.
    [/fancy_list]
  • Notice to Owner Florida, (post date:2012-05-24 00:59:49)

    What is it a Notice to Owner?

    A Notice to Owner, also known as an NTO in the state of Florida,  is a notice that secures your right to lien a property.    If you are a subcontractor or a supplier and do not have a direct contract with the owner of the property you must send a Notice to Owner to the General Contractor in order to secure your right to lien a property. Subcontractors and suppliers  have 45 days from the first day of furnishing materials and/or labor to a property to send a Notice to Owner.

    Send a Notice to Owner NOW to secure your lien rights!

    Who needs to send Notices to Owner?

    Any subcontractor or supplier that does not have a direct contract with the owner of the property must send a Notice to Owner in order to secure their lien rights. A Notice to Owner is sent if you are conducting work or improvements on a property (whether repairs or new construction) and you are working directly for anyone other than the owner of the property.

    Send a Notice to Owner NOW to secure your lien rights!

    How do I send SunRay my information?

    With Sunray Construction Solutions, LLC filing your notices couldn’t be easier!  You have two options: 1.   You can fax your requests to our office or 2.   You can create an online account and submit your Notices to Owner online! Simply fill in a Notice to Owner form and we’ll do the rest for you!

    How much does it cost?

    Our flat fee of $30.00 plus postage includes everything involved in sending a Notice to Owner!

    What does the $30.00 plus postage include?

    [fancy_list style="check_list" variation="orange"]
    • Researching the property owner and the legal property description (if necessary)
    • Preparing the notice
    • Delivering the notice
    • Tracking delivery and obtaining a certified delivery receipt – or 'green card'
    • Tracking and notifying clients of deadlines
    • Retaining records of all notices on our database for easy future access
    [/fancy_list] New to SunRay? Call us at 877-564-4404...  We promise you won't get a voice recorder! We are customer service and support friendly!

    Send a Notice to Owner NOW to secure your lien rights!

    How does a Notice to Owner protect you and your business?

    A Florida Notice to Owner is needed to ensure that you are paid for your work. It should always be part of your business process if you’re working in construction in the State of Florida and you’re not working directly for the owner of a property. When you file an NTO, you are effectively informing the owner of a property or of an improvement project that you are a subcontractor on the job. It is a way to make the owner aware that as a supplier you should be paid before payment is made to the contractor on the job.

    Filing a notice will:

    [fancy_list style="check_list" variation="orange"]
    • Secure your right to file a lien on the property
    • Secure your right to enforce the lien in the future, should you not be paid
    • Ensure you get paid for your work
    [/fancy_list]

    Need to know if you are within your 45 day period of sending a Notice to Owner in Florida? Click on the link below..

    [button link="/deadline-calculator/" size="medium" variation="blue" align=""]View Our NTO Deadline Calculator[/button]

    Want to learn more about Notices to Owner in Florida?

    Take a FREE online course!

    Florida Notice to Owner Form

    Download your free Notice to Owner Form. Here what customers have to say about us! [testimonials_grid show="2" column="2" style="pullquote4"]      
  • Alabama, (post date:2013-04-23 05:10:41)

    Alabama Lien Law

     
    Notice Req.
    Intent to Lien
    Lien Req.
    Prime Contractor

    Not Required

    Not Required to send Intent to Lien

    A lien must be filed within 6 months after payment becomes due. To file suit, begins 6 months after payment becomes due.

    Sub Contractor

    If there is no direct contract with the owner, a notice of UnPaid Balance must be sent to the owner before filing a lien.

    Not Required to send Intent to Lien

    A lien must be filed within 4 months after last providing labor or materials. Laborers must file a lien within 30 days after last providing labor. To file suit, also begins 6 months after payment becomes due.

    Suppliers/Other

    If supplying materials only, you can provide preliminary notice to gain the same lien rights a the general contractor.

    Not Required to send Intent to Lien

    A lien must be filed within 4 months after last providing labor or materials. To file suit begins 6 months after payment becomes due

    PRIVATE PROJECTS:

    Alabama

    Notice to Owner-Prior to Performance, Unpaid Balance Lien, Statement of Lien

     

     1. Does Alabama require a Notice to Owner-Prior to Performance if I am a MATERIAL SUPPLER?

    It is not requirement to send a Notice to Owner-Prior to Performance HOWEVER

    By sending a Notice to Owner-Prior to Performance you significantly increase the rights as a lienor. This Notice to Owner-Prior to Performance secures the lien right to a “Full Price lien” if you are a material supplier.

    SECURE YOUR LIEN RIGHTS by sending a Notice to Owner-Prior to Performance NOW!

    If you are a subcontractor or supplier you can always send the Notice to Owner-Prior to Performance as a collection tool however it will not provide you the rights to a “Full Price Lien”.

     

    2. If I don’t have a direct contract with the owner do I have any rights?

    Yes, “Unpaid Balance Lien” This lien is available to those who do not have a direct contract with the owner and where no advance notice was given, such as the Notice to Owner-prior to performance. This is not a lien this is only an “after the fact” notice.  There is not time requirement to send this notice before or during the job.

    GET PAID  NOW by signing up with SunRay Construction Solutions

     

    3. Who does the Full Price Lien apply to?

    “Full Price Lien” which is in favor of the materialman and those that have a direct contract with the owner of the property. Remember if you do not give prior Notice to Owner-Prior to Performance and you are a materialman you will not have the rights to a “Full Price Lien.”

    GET PAID  NOW by signing up with SunRay Construction Solutions

     

    4. When is my last day of work so that I can file a lien to get paid?

    Subcontractors and Suppliers must file within 4 months after the last item of work has been performed or material has been furnished.

    Laborers must file the Statement of Lien within thirty 30 days of the last provided labor on the job.

    Original contractors must file within 6 months after the development of the entire debt secured by the lien.

    GET PAID NOW Sign up with SunRay Construction Solutions!

     

    5. Are you a surveyor or a supplier to a suppler? 

    Surveyors, suppliers to suppliers, and, in most instances, design professionals, are not protected.

    GET PAID NOW Sign up with SunRay Construction Solutions!

     

    6. What costs or damages made are not generally allowed in a lien claim?

    Interest is recoverable at the rate provided for by the contract between the parties or at the maximum rate allowed by Alabama law.  Attorney fees are recoverable only if provided for by the contract between the parties.

    GET PAID  NOW by signing up with SunRay Construction Solutions

     

    7. What is the deadline to start a lien foreclosure?

    Any action for the enforcement of a lien must be commenced within 6 months after the maturity of the entire indebtedness secured by the lien.

    GET PAID  NOW by signing up with SunRay Construction Solutions

    MILLER ACT STATUTE:

    The Alabama “Little Miller Act”

     

    Alabama Code, Title 39, Public Works, Section 39-1-1 ___________________________________________________________________________________

     

    Section 39-1-1

     

    Bonds required of persons contracting for public works; commencement, etc., of actions upon bond by persons supplying labor, etc., to contractor; offer to accept judgment; notice of completion of project by contractor and final settlement; applicability.

     

    (a) Any person entering into a contract with an awarding authority in this state for the prosecution of any public works shall, before commencing the work, execute a performance bond, with penalty equal to 100 percent of the amount of the contract price. In addition, another bond, payable to the awarding authority letting the contract, shall be executed in an amount not less than 50 percent of the contract price, with the obligation that the contractor or contractors shall promptly make payments to all persons supplying labor, materials, or supplies for or in the prosecution of the work provided in the contract and for the payment of reasonable attorneys’ fees incurred by successful claimants or plaintiffs in civil actions on the bond.

     

    (b) Any person that has furnished labor, materials, or supplies for or in the prosecution of a public work and payment has not been made may institute a civil action upon the payment bond and have their rights and claims adjudicated in a civil action and judgment entered thereon. Notwithstanding the foregoing, a civil action shall not be instituted on the bond until 45 days after written notice to the surety of the amount claimed to be due and the nature of the claim. The civil action shall be commenced not later than one year from the date of final settlement of the contract. The giving of notice by registered or certified mail, postage prepaid, addressed to the surety at any of its places of business or offices shall be deemed sufficient under this section. In the event the surety or contractor fails to pay the claim in full within 45 days from the mailing of the notice, then the person or persons may recover from the contractor and surety, in addition to the amount of the claim, a reasonable attorney’s fee based on the result, together with interest on the claim from the date of the notice.

     

    (c) Every person having a right of action on the last described bond as provided in this section shall, upon written application to the authority under the direction of whom the work has been prosecuted, indicating that labor, material, foodstuffs, or supplies for the work have been supplied and that payment has not been made, be promptly furnished a certified copy of the additional bond and contract. The claimant may bring a civil action in the claimant’s name on the bond against the contractor and the surety, or either of them, in the county in which the work is to be or has been performed or in any other county where venue is otherwise allowed by law.

     

    (d) In the event a civil action is instituted on the payment bond, at any time more than 15 days before the trial begins, any party may serve upon the adverse party an offer to accept judgment in favor of the offeror or to allow judgment to be entered in favor of the offeree for the money or as otherwise specified in the offer. If within 10 days after the service of the offer, the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service and the clerk of the court shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence of the offer shall not be admissible. If the judgment finally obtained by the offeree is less favorable than the offer, the offeree shall pay the reasonable attorney’s fees and costs incurred by the offeror after the making of the offer. An offer that is made but not accepted does not preclude a subsequent offer. When the liability of one party to another party has been determined by verdict, order, or judgment, but the amount or extent of the liability remains to be determined by further proceedings, any party may make an offer of judgment, which shall have the same effect as an offer made before trial if the offer is made no less than 10 days prior to the commencement of hearings to determine the amount or extent of liability.

     

    (e) This section shall not require the taking of a bond to secure contracts in an amount less than fifty thousand dollars ($50,000).

     

    (f) The contractor shall, immediately after the completion of the contract, give notice of the completion by an advertisement in a newspaper of general circulation published within the city or county in which the work has been done, for a period of four successive weeks. A final settlement shall not be made upon the contract until the expiration of 30 days after the completion of the notice. Proof of publication of the notice shall be made by the contractor to the authority by whom the contract was made by affidavit of the publisher and a printed copy of the notice published. If no newspaper is published in the county in which the work is done, the notice may be given by posting at the courthouse for 30 days, and proof of same shall be made by the judge of probate, sheriff, and the contractor.

     

    (g) Subsection (f) shall not apply to contractors performing contracts of less than fifty thousand dollars ($50,000) in amount. In such cases, the governing body of the contracting agency, to expedite final payment, shall cause notice of final completion of the contract to be published one time in a newspaper of general circulation, published in the county of the contracting agency and shall post notice of final completion on the agency’s bulletn board for one week, and shall require the contractor to certify under oath that all bills have been paid in full. Final settlement with the contractor may be made at any time after the notice has been posted for one entire week.

  • Mechanics Lien, (post date:2013-04-23 18:20:52)

    Mechanics Lien - How to File a Lien

    What is a Mechanics Lien?

    A Mechanics Lien is a construction lien that can be placed on a property in the event of non-payment. It is a legal claim or a ‘hold’ on the property, placed by contractors or suppliers who have worked on the property but not been paid for their labor or services. It is one of the most effective ways of ensuring you get paid for your work.

    Who needs to file one?

    Anyone who has worked on a construction project and not been paid for their services should file a Mechanics Lien to secure their payment rights. The following have lien rights: [fancy_list style="check_list" variation="orange"]
    • Contractors, subcontractors and sub-subcontractors
    • Laborers
    • Material or equipment suppliers
    • Professionals such as Architects, Engineers, Land Surveyors and Interior Designers
    [/fancy_list]

    How to file a lien on property

    Filing a lien can be a complicated process as there are different requirements for different states and projects. The process also involves researching the property description and owner, as well as filing, serving and tracking the lien according to specific requirements. In order to secure your lien rights, many states will require you to have submitted some form or Preliminary Notice or even a Notice of Intent to Lien. Without these, you may lose your right to file a lien on property. With Sunray Construction Notices, filing a lien couldn’t be easier. Simply fill in a Mechanics Lien form and we’ll do the rest for you. Our flat fee of $xx includes everything required in preparing, filing, serving and tracking your construction lien, including: [fancy_list style="check_list" variation="orange"]
    • Researching the property owner and the legal property description
    • Preparing the Mechanics Lien
    • Filing the lien with the County Recorder
    • Serving the filed lien to the intended parties
    • Tracking and notifying clients of deadlines
    • Retaining records of all notices and liens on our database for easy future access
    [/fancy_list] New to Sunray? Get a free proposal now! Call us or fill in the form below and one of our lien specialists will contact you within 1 hour.

    Is a Mechanics Lien necessary?

    If you have not been paid for your work on a private construction project, then you should absolutely claim your rights of payment. If you have time, you may wish to first file a Notice of Intent to Lien. This is a lower cost way of informing the relevant parties that you will be demanding your payment rights, and is often sufficient to lead to payment. However, if you are too close to the lien deadline, or if you have already filed a Notice of Intent and have still not been paid, then you should file a Mechanics Lien. A lien is very effective in ensuring you receive the money you are owed because until the outstanding amount has been paid to you, the equivalent funds in the project are frozen. The property also cannot be sold, transferred or refinanced until the lien amount is paid in full. An unpaid lien on property can even result in a foreclosure action, forcing the sale of the property in order to compensate you. A lien on property effectively makes the property or project site your collateral for payment. However, if you’re working on a state or federal project, you cannot lien the property. Instead, you should file a Construction Bond for payment on state projects, or a Miller Act Notice for payment on federal projects.

    Mechanics Lien form

    Download your free Mechanics Lien form or get your free proposal today.
  • Alaska, (post date:2013-04-23 22:52:34)

    Alaska Lien Law

    Notice Req.
    Intent to Lien
    Lien Req.
    Prime Contractor

    A notice of lien rights can be served to the owner before providing services, which extend lien recordings time and now transfers the proof to the owner.

    Not Required

    If no notice of completion is filed by the owner, a lien must then be filed in 120 days after completion or last day of furnishings. If owner did file a notice of completion, then the notice of right to lien is to be filed with 15 days from that filing.

    Sub Contractor

    A notice of lien rights can be served to the owner before providing services, which extend lien recordings time and now transfers the proof to the owner.

    Not Required

    If no notice of completion is filed by the owner, a lien must then be filed in 120 days after completion or last day of furnishings. If owner did file a notice of completion, then the notice of right to lien is to be filed with 15 days from that filing.

    Suppliers/Other

    A notice of lien rights can be served to the owner before providing services, which extend lien recordings time and now transfers the proof to the owner.

    Not Required

    If no notice of completion is filed by the owner, a lien must then be filed in 120 days after completion or last day of furnishings. If owner did file a notice of completion, then the notice of right to lien is to be filed with 15 days from that filing.

    PRIVATE PROJECTS:

    Alaska

    Notice of Furnishing, Claim of Lien

     

    1. Do I have to file any notices before I start work on a property in Alaska?

    No, but it is advisable to file a Notice of Right to Lien. By sending a Notice of Right to Lien to the owner of the property and lender (if applicable).

    By sending a Notice of Right to Lien a subcontractor or supplier is ensuring that not only does the owner know that you were on the property it also forces the owner to give advance notice, that the owner not only knew about the about the work performed the owner also consented to the work, materials and/or labor furnished.

    SECURE YOUR LIEN RIGHTS by sending a Notice of Right to Lien Now!

     

    2. How long do I have to file a claim of lien in Alaska?

    120 days to file a Claim of Lien after the last date services were provided on the project.  In certain circumstances the time limit can be reduced to fifteen (15) days. This time can be reduced by either the owner or the General Contractor by filing a Notice of Completion.

    SECURE YOUR LIEN RIGHTS by filing a Claim of Lien Now!

     

     

    3. Who do not have any lien rights in the state of Alaska?

    Sub-subcontractors, suppliers of materials, equipment not delivered to the property, are not entitled to lien rights.

    GET PAID NOW by signing up with SunRay Constructions

     

    4. How long do I have to file for a lien of foreclosure?

    6 months to file a suit of a lien.  You can file for an Extension Notice, to extend the lien another 6 months.

    GET PAID NOW by signing up with SunRay Constructions

     

     5. Who satisfies the lien when I am paid?

    Alaska law does not state specifically who satisfies the lien.  It would be in consideration that the claimant would do so.

    GET PAID NOW by signing up with SunRay Constructions

    MILLER ACT STATUTE:

    The Alaska “Little Miller Act

    Alaska Statutes, Title 36, Public Contracts, Chapter 36.25, Contractors’ BondsSections 36.25.010 through 36.25.025
    ___________________________________________________________________________________

    Copyright © 2009 Alaska Legislature. All Rights Reserved.

    Sec. 36.25.010.  Bonds of contractors for public buildings or works.

    (a) Except as provided in AS 44.33.300, before a contract exceeding $100,000 for the construction, alteration, or repair of a public building or public work of the state or a political subdivision of the state is awarded to a general or specialty contractor, the contractor shall furnish to the state or a political subdivision of the state the following bonds, which become binding upon the award of the contract to that contractor:

    (1) a performance bond with a corporate surety qualified to do business in the state, or at least two individual sureties who shall each justify in a sum equal to the amount of the bond; the amount of the performance bond shall be equivalent to the amount of the payment bond;

    (2) a payment bond with a corporate surety qualified to do business in the state, or at least two individual sureties who shall each justify in a sum equal to the amount of the bond for the protection of all persons who supply labor and material in the prosecution of the work provided for in the contract; when the total amount payable by the terms of the contract is not more than $1,000,000, the payment bond shall be in a sum of one-half the total amount payable by the terms of the contract; when the total amount payable by the terms of the contract is more than $1,000,000 and not more than $5,000,000, the payment bond shall be in a sum of 40 percent of the total amount payable by the terms of the contract; when the total amount payable by the terms of the contract is more than $5,000,000, the payment bond shall be in the sum of $2,500,000.

    (b) This section does not limit the authority of a contracting officer to require a performance bond or other security in addition to those, or in cases other than the cases specified in (a) of this section.

    (c) When no payment bond has been furnished, the contracting department may not approve final payments to the contractor until the contractor files a written certification that all persons who supplied labor or material in the prosecution of the work provided for in the contract have been paid.

    Sec. 36.25.020.  Rights of persons furnishing labor or material.

    (a) A person who furnishes labor or material in the prosecution of the work provided for in the contract for which a payment bond is furnished under AS 36.25.010 and who is not paid in full before the expiration of 90 days after the last day on which the labor is performed or material is furnished for which the claim is made, may sue on the payment bond for the amount unpaid at the time of the suit.

    (b) However, a person having direct contractual relationships with a subcontractor but no contractual relationship express or implied with the contractor furnishing the payment bond has a right of action on the payment bond upon giving written notice to the contractor within 90 days from the last date on which the person performed labor or furnished material for which the claim is made. The notice must state with substantial accuracy the amount claimed and the name of the person to whom the material was furnished or for whom the labor was performed. The notice shall be served by mailing it by registered mail, postage prepaid, in an envelope addressed to the contractor at any place where the contractor maintains an office or conducts business, or the contractor’s residence, or in any manner in which a peace officer is authorized to serve summons.

    (c) A suit brought under this section shall be brought in the name of the state or the political subdivision of the state for the use of the person suing in the court with jurisdiction. A suit under this section is subject to AS 08.18.151 . A suit may not be started after the expiration of one year after the date of final settlement of the contract. The state or political subdivision of the state is not liable for costs or expenses of the suit.

    Sec. 36.25.025.  Optional municipal exemption.

    A municipality, by ordinance adopted by its governing body, may exempt contractors from compliance with the provisions of AS 36.25.010(a) if the estimated cost of the project does not exceed $400,000, and

    (1) the contractor is, and for two years immediately preceding the award of the contract has been, a licensed contractor having its principal office in the state;

    (2) the contractor certifies that it has not defaulted on a contract awarded to the contractor during the period of three years preceding the award of a contract for which a bid is submitted;

    (3) the contractor submits a financial statement, prepared within a period of nine months preceding the submission of a bid for the contract and certified by a public accountant or a certified public accountant licensed under AS 08.04, demonstrating that the contractor has a net worth of not less than 20 percent of the amount of the contract for which a bid is submitted; and

    (4) the total amount of all contracts that the contractor anticipates performing during the term of performance of the contract for which a bid is submitted does not exceed the net worth of the contractor reported in the certified financial statement prepared and submitted under (3) of this section by more than seven times.

    LIEN STATUTE:

    TITLE 34 PROPERTY

    CHAPTER 34.35 LIENS

    Sec. 34.35.030 Lien Claim Against Different Properties
    Sec. 34.35.035 Several Judgment for Each Claimant
    Sec. 34.35.040 Order of Priority and Payment [Repealed]
    Sec. 34.35.045 Lienor’s Action on Contract

    ARTICLE 02 MECHANICS AND MATERIALMEN

    Sec. 34.35.050 Lien for Labor or Materials Furnished
    Sec. 34.35.055 Land Subject to Lien
    Sec. 34.35.060 Priorities
    Sec. 34.35.062 Construction Financing
    Sec. 34.35.064 Notice of Right to Lien
    Sec. 34.35.065 Notice of Nonresponsibility
    Sec. 34.35.067 Recording Notice of Right to Lien
    Sec. 34.35.068 Time Periods for Claiming Liens
    Sec. 34.35.069 Acknowledgment of Right to Lien [Repealed]
    Sec. 34.35.070 Claim of Lien
    Sec. 34.35.071 Notice of Completion
    Sec. 34.35.072 Bond
    Sec. 34.35.074 Civil Suits
    Sec. 34.35.075 Record and Index of Claim
    Sec. 34.35.080 Duration of Lien
    Sec. 34.35.085 Lien for Improving Lot or Street
    Sec. 34.35.090 Payment to Contractor
    Sec. 34.35.095 Amount of Lien
    Sec. 34.35.100 Action Against Contractor on Lien
    Sec. 34.35.105 Materials Not Subject to Process
    Sec. 34.35.110 Actions to Enforce Liens
    Sec. 34.35.112 Payment of Claimant’s Liens
    Sec. 34.35.114 Obligation of Claimant and Lender to Provide Information
    Sec. 34.35.115 Persons Considered Agent of Owner
    Sec. 34.35.117 Waiver of Lien Rights
    Sec. 34.35.118 Claimant Liability [Repealed]
    Sec. 34.35.119 Waiver of Liens on Unsold Common Interest Community Units
    Sec. 34.35.120 Definitions

    ALASKA STATUTES

    TITLE 34 PROPERTY

    CHAPTER 34.35 LIENS

    Sec. 34.35.030 Lien Claim Against Different Properties

    If a lien claim is filed for the same labor against two separate kinds of property owned or claimed by different persons, the court shall determine the liability of each kind of property and designate which shall be sold first to discharge the amount of the lien claim.

    Sec. 34.35.035 Several Judgment for Each Claimant

    In an action to enforce a lien judgment shall be given in favor of each person having a lien for the amount due the person, and the court shall order property subject to the lien to be sold by the peace officer in the same manner that property is sold on execution, or in any manner that the court considers proper. The proceeds of the sale shall be apportioned to the payment of each judgment pro rata, if the amount is insufficient to pay them in full.

    Sec. 34.35.040 Order of Priority and Payment [Repealed, sec. 19 ch 175 SLA 1978. For current law see AS 34.35.112].

    Repealed or Renumbered

    Sec. 34.35.045 Lienor’s Action on Contract

    Except as otherwise expressly provided, nothing in AS 34.35.005 – 34.35.425 may be construed to prevent a lienor under a contract from maintaining an action as if the lienor has no lien for the security of the debt and the bringing of this action does not prejudice rights under AS 34.35.005 – 34.35.425.

    Article 02 MECHANICS AND MATERIALMEN

    Sec. 34.35.050 Lien for Labor or Materials Furnished

    A person has a lien, only to the extent provided under this chapter, to secure the payment of the contract price if the person

    (1) performs labor upon real property at the request of the owner or the agent of the owner for the construction, alteration, or repair of a building or improvement;

    (2) is a trustee of an employee benefit trust for the benefit of individuals performing labor on the building or improvement and has a direct contract with the owner or the agent of the owner for direct payments into the trust;

    (3) furnishes materials that are delivered to real property under a contract with the owner or the agent of the owner that are incorporated in the construction, alteration, or repair of a building or improvement;

    (4) furnishes equipment that is delivered to and used upon real property under a contract with the owner or the agent of the owner for the construction, alteration, or repair of a building or improvement;

    (5) performs services under a contract with the owner or the agent of the owner in connection with the preparation of plans, surveys, or architectural or engineering plans or drawings for the construction, alteration, or repair of a building or improvement, whether or not actually implemented on that property; or

    (6) is a general contractor.

    Sec. 34.35.055 Land Subject to Lien

    (a) The land upon which a building or other improvement described in AS 34.35.050 is constructed, together with a convenient space about the building or other improvement or so much as is required for the convenient use and occupation of it (to be determined by the judgment of the court at the time of the foreclosure of the lien), and the mine on which the work is performed or for which the material is furnished is also subject to the lien created by AS 34.35.050 – 34.35.120 if, at the time the work is started or the materials for the building or other improvements are first furnished, the land belongs to the person who causes the building or other improvement to be constructed, altered, or repaired.

    (b) If the person owns less than a fee simple estate in the land, then only the interest of the person in it is subject to the lien.

    (c) If the interest is a leasehold interest, and the holder forfeits the rights of the holder to it, the purchaser of the building or improvement and leasehold term, or so much of it as remains unexpired at a sale under AS 34.35.050 – 34.35.120 is considered to be the assignee of the leasehold term, and may pay the lessor all arrears of rent or other money and costs due under the lease.

    (d) If the lessor regains possession of the land and property, or obtains judgment for the possession of it before the commencement of the construction, alteration, or repair of the building or other improvement, the purchaser may only remove the building or other improvement within 30 days after the purchase, and the owner of the land shall receive the rent due payable out of the proceeds of the sale, according to the terms of the lease, down to the time of the removal.

    Sec. 34.35.060 Priorities

    (a)Except as provided in (c) of this section, an encumbrance which is properly recorded shall be preferred to a lien created under AS 34.35.050 – 34.35.120 unless the claim of lien under AS 34.35.070 or notice of right to lien under AS 34.35.064 has been recorded before the encumbrance. The preference granted for a prior mortgage or deed of trust under this section applies without regard to when the sums are disbursed or whether the disbursements are required under the terms of a loan agreement.

    (b) [Repealed, sec. 19 ch 175 SLA 1978].

    (c) A lien created by AS 34.35.050 – 34.35.120 in favor of an individual actually performing labor upon a building or other improvement in its original construction or of a trustee of an employee benefit trust for those individuals is preferred to a prior encumbrance upon the land on which the building or other improvement is constructed.

    (d) In enforcing the lien, the building or other improvement may be sold separately from the land. When sold separately, the purchaser may remove the building or other improvement within a reasonable time after the sale, not to exceed 30 days, upon the payment to the owner of the land of a reasonable rent for its use from the date of its purchase to the time of removal. If removal is prevented by legal proceedings, the 30 days does not begin to run until the final determination of the proceedings in the court of first resort, or in the appellate court if appeal is taken.

    Sec. 34.35.062 Construction Financing

    (a) A claimant to whom payment for the labor, material, service, or equipment furnished for a project is past due may give the lender a stop-lending notice. The claimant shall at the same time give a copy of the notice to the owner and to each prime contractor with whom or through whom the claimant or the claimant’s debtor has contracted. A stop-lending notice must

    (1) instruct the lender to stop disbursing, advancing, or otherwise providing construction financing for the project;

    (2) be verified by the claimant;

    (3) state the claimant’s name, address, and telephone number;

    (4) describe the labor, material, service, or equipment furnished by the claimant and state the name of the person to whom furnished;

    (5) describe the real property improved by the labor, material, service, or equipment and state the name of the person the claimant believes to be the owner of the real property;

    (6) state the amount due and unpaid to the claimant for the labor, material, service, or equipment.

    (b) A stop-lending notice is binding upon a lender from the time the lender has received it and had a reasonable opportunity to act upon it until it expires or is revoked. A notice expires on the 91st day after it is received by the lender unless the claimant has commenced an action on the claim that is the subject of the notice before that day and the lender has received written notification of the action. A stop-lending notice may be revoked at any time in writing signed by the claimant. Expiration or revocation of a notice extinguishes the liability of the lender to the claimant under (c) of this section.

    (c) A lender who disburses, advances, or otherwise provides construction financing for a project after it is the subject of a stop-lending notice is liable to the claimant in an amount equal to the lowest of the following amounts:

    (1) the amount of construction financing disbursed, advanced, or otherwise provided by the lender after receipt of the claimant’s stop-lending notice; if there are two or more stop-lending notices when the disbursement occurs, the lender’s liability to each claimant is based on the claimant’s ranking under AS 34.35.112 ;

    (2) the amount owed to the claimant, including interest, costs, and attorney’s fees, for labor, material, service, or equipment furnished for the project by the claimant as established by a written agreement signed on or after the date of the stop-lending notice by the claimant, the owner and the prime contractor with whom or through whom the claimant or the claimant’s debtor has contracted or by a final judgment in an action in which the owner, the claimant, and the claimant’s debtor are named and, if necessary, served parties;

    (3) 150 percent of the amount stated in the stop-lending notice.

    (d) Within 10 days after receiving the written agreement or a certified copy of the judgment under (c)(2) of this section establishing the amount owed to a claimant from whom it has a binding stop-lending notice, a lender shall send to the claimant a verified statement showing, by date and amount, all construction financing provided by the lender for the project. Except as provided in (e) of this section, the lender shall include with the statement payment in the amount of the lender’s liability to the claimant under (c) of this section.

    (e) If there are two or more claimants to whom a lender is or may be liable under (c) of this section and the lender is uncertain as to the amount of its liability or possible liability to each, the lender may bring an action to require the claimants to interplead their claims.

    (f) A draw against construction financing may be made only after certification of job progress is delivered to the lender by the owner. The form of the certification may be prescribed by the lender and must include

    (1) a statement of the progress of the project, including the percentage of completion of the project;

    (2) the name, address, and telephone number of each prime contractor who has furnished labor, material, service, or equipment for the project;

    (3) the amount owed by the owner to each listed prime contractor; and

    (4) the portion of the draw that the owner will pay to each listed prime contractor.

    (g) The owner shall use each draw as indicated in the certificates given by the owner to the lender under (f) of this section. The lender may not be required to verify the information in a certificate and is not liable for an error in a certificate.

    (h) An owner who intentionally fails to apply construction financing proceeds as indicated by the certificate required under (f) of this section is guilty of a class A misdemeanor. The penalty provided under this subsection does not replace any other penalty that may be provided for by law for the same conduct.

    (i) Within 10 days after being requested, a lender shall provide a person who has given the lender a stop-lending notice with a copy of

    (1) each certificate received by the lender under (f) of this section; and

    (2) a verified certificate stating the amount of construction financing proceeds committed by the lender for the project that have not been disbursed by the lender.

    (j) The lender may not provide construction financing proceeds for payment of indebtedness of the owner that is not incurred for the project.

    Sec. 34.35.064 Notice of Right to Lien

    (a) Before furnishing labor, material, service, or equipment for a project, a person may give a notice of right to lien to the owner or owner’s agent. If the notice is given in accordance with this section, the owner has the burden of proof to show that the owner did not know of or consent to the furnishing of the labor, material, service, or equipment by the claimant in an action to foreclose the claimant’s lien on the property under AS 34.35.050 – 34.35.120. Otherwise the claimant has the burden of proof to show that the owner knew of and consented to the furnishing of the labor, material, service, or equipment. The notice of right to lien must be in writing, state that it is a notice of a right to assert a lien against real property for labor, materials, services, or equipment furnished in connection with a project, and contain

    (1) a legal description sufficient for identification of the real property;

    (2) the name of the owner;

    (3) the name and address of the claimant;

    (4) the name and address of the person with whom the claimant contracted;

    (5) a general description of the labor, materials, services, or equipment provided or to be provided;

    (6) a statement that the claimant may be entitled to record a claim of lien; and

    (7) the following statement in type no smaller than that used in providing the information required by (1) – (6) of this subsection:

    WARNING: Unless provision is made for payment of sums that may be due to the undersigned, your above property may be subject to foreclosure to satisfy those sums even though you may pay a prime contractor or other person for the labor, material, service, or equipment furnished by the undersigned.

    (b) Upon request from an owner, lender, or prime contractor, a claimant who has given a notice of right to lien under this section shall disclose to the requester within five days the most recent accounting of the amount due and unpaid to that claimant under the terms of the contract and a description of labor, materials, services, or equipment that the claimant reasonably anticipates furnishing.

    Sec. 34.35.065 Notice of Nonresponsibility

    (a) A building or improvement mentioned in AS 34.35.050 constructed with the knowledge of the owner of the land or the person having or claiming an interest in the land is considered to be constructed at the instance of the owner or person having or claiming the interest.

    (b) The interest owned or claimed is subject to a lien recorded under AS 34.35.050 – 34.35.120, unless

    (1) the owner or person having or claiming an interest in the land gives notice within three days after the owner or other person obtains knowledge of the construction, alteration, or repair that the owner or other person will not be responsible for it, by posting a notice to that effect in writing in some conspicuous place upon the land or upon the building or other improvement located on the land;

    (2) the notice is signed by the owner or person having or claiming an interest in the land in the presence of two attesting witnesses or acknowledged by the owner or other person before a notary public;

    (3) the posting of notice is attested to by a witness; and

    (4) an attested or notarized copy of the notice is recorded with the recorder of the recording district in which the land, building, or other improvement is located within three days after the posting of the notice.

    Sec. 34.35.067 Recording Notice of Right to Lien

    A notice of right to lien may be recorded by a claimant at any time after the claimant enters into a contract for or first furnishes labor, material, service, or equipment in connection with a project. The notice shall be recorded in the same manner as specified for the recording of a claim of lien under AS 34.35.070.

    Sec. 34.35.068 Time Periods for Claiming Liens

    (a) If a notice of completion is not recorded by the owner as provided in AS 34.35.071, a claim of lien shall be recorded not later than 90 days after the claimant

    (1) completes the construction contract; or

    (2) ceases to furnish labor, material, services, or equipment for the construction, alteration, or repair of the owner’s property.

    (b) If a notice of completion is recorded by the owner as provided in AS 34.35.071,

    (1) the following shall record a claim of lien or a notice of right to lien not later than 15 days after the notice of completion is recorded:

    (A) a claimant who has received advance notification of the date that the notice of completion is recorded as provided in AS 34.35.071(a)(2);
    (B) a claimant who has not given a notice of right to lien
    as permitted in AS 34.35.064 ;

    (2) the following shall record a claim of lien not later than the time specified in (a) of this section:

    (A) a claimant who records a notice of right to lien before or within the period specified in (1) of this subsection;
    (B) a claimant who has given a notice of right to lien but who has not received advance notice of the date that the notice of completion is recorded by the owner as provided in AS 34.35.071 (a)(2).

    (c) A claim of lien is enforceable only if recorded by a claimant within the time specified in (a) or (b) of this section.

    Sec. 34.35.069 Acknowledgment of Right to Lien [Repealed, sec. 18 ch 102 SLA 1986].

    Repealed or Renumbered

    Sec. 34.35.070 Claim of Lien

    (a) A claimant may record a claim of lien after entering into a contract for a project. A claim of lien may not be recorded later than the time specified under AS 34.35.068.

    (b) [Repealed, sec. 9 ch 61 SLA 1979].

    (c) The lien shall be verified by the oath of the claimant or another person having knowledge of the facts and state

    (1) the real property subject to the lien, with a legal description sufficient for identification;

    (2) the name of the owner;

    (3) the name and address of the claimant;

    (4) the name and address of the person with whom the claimant contracted;

    (5) a general description of the labor, materials, services, or equipment furnished for the construction, alteration, or repair, and the contract price of the labor, materials, services, or equipment;

    (6) the amount due to the claimant for the labor, materials, services, or equipment; and

    (7) the date the last labor, materials, services, or equipment were furnished.

    (d) [Repealed, sec. 19 ch 175 SLA 1978].

    (e) [Repealed, sec. 19 ch 175 SLA 1978].

    (f) A violation of the provisions of this section places the violator in the position of guarantor regarding another person who suffers damages that are proximately caused by the violation.

    Sec. 34.35.071 Notice of Completion

    (a) The owner of real property that may be subject to a lien under AS 34.35.050 – 34.35.120 may announce the date of completion of the project by

    (1) recording a notice of completion after completion of the project in the office of the recorder of the district in which the real property is situated; and

    (2) giving notice at least five days before the recording of the notice of completion to all claimants who have given a notice of right to lien or a stop-lending notice to the owner and the lender prior to 10 days before recording a notice of completion; the notice must include a copy of the notice of completion and a statement advising claimants that a notice of completion will be recorded not earlier than five days after the date of the notice.

    (b) The notice of completion shall be signed and verified by the owner, and must state

    (1) the date of completion of the building or other improvement;

    (2) the name and address of the owner;

    (3) the nature of the interest or estate of the owner;

    (4) the legal description of the property sufficient for identification; and

    (5) the name of the general contractor.

    (c) [Repealed, sec. 9 ch 61 SLA 1979].

    (d) A notice of completion is not effective if recorded before completion.

    (e) Labor, materials, services, or equipment furnished after a notice of completion is recorded to satisfy warranty obligations or to remedy defective or unsatisfactory construction, alterations, or repairs for which no additional consideration is owed to the person furnishing the additional labor, materials, services, or equipment does not result in lien liability under AS 34.35.050 – 34.35.120.

    (f) After recording a common interest community declaration under AS 34.08, an owner may record a notice of completion under this section as to each unit after completion of the original construction of each unit of the common interest community.

    Sec. 34.35.072 Bond

    If the owner of the property sought to be charged with a claim of lien under AS 34.35.050 – 34.35.120, or
    a prime contractor or subcontractor disputes the correctness or validity of the claim of lien brought under AS 34.35.050 – 34.35.120, the owner or contractor may record either before or after the commencement of an action to enforce the claim of lien, in the office of the recorder in which district
    the claim of lien was recorded, a bond executed by a person authorized to issue surety bonds in this state under AS 21, a financial institution licensed under AS 06, or a national bank authorized under the federal banking laws, in the penal sum equal to one and one-half times the amount of the claim of lien, which bond shall guarantee the payment of the sum that the lien claimant has claimed, together with the lien claimant’s reasonable cost of suit in the action, if the claimant recovers on the claim of lien. If the owner records a bond under this section, the property described in the bond is freed from the effect of a claim of lien under AS 34.35.050 – 34.35.120 and an action brought to foreclose the claim of lien. The principal on the bond may be the owner of the property, the prime contractor, or a subcontractor who is affected by the claim of lien.

    Sec. 34.35.074 Civil Suits

    (a)A person injured by a violation of AS 34.35.050 – 34.35.120 may bring a civil action

    (1) except as provided in AS 34.35.062 (c), for actual and consequential damages that are proximately caused by the violation plus costs, including reasonable attorney fees;

    (2) to enjoin the violation, and if the person prevails, the person shall be awarded costs, including reasonable attorney fees.

    (b) A claimant who gives a stop-lending notice or has a claim of lien recorded under AS 34.35.075 and who fails to promptly revoke the stop-lending notice or remove the claim of lien from the record upon receiving payment in full on the claim or discovering that the stop-lending notice or claim of lien is in error, unjust, premature, or excessive is liable for actual and consequential damages caused by giving the stop-lending notice or improperly recorded claim of lien plus costs, including reasonable attorney fees.

    Sec. 34.35.075 Record and Index of Claim

    The recorder shall record the claim in a book kept for that purpose. The records shall be indexed as deeds and other conveyances are required by law to be indexed. The recorder is entitled to the same fees allowed by law for recording deeds and other instruments.

    Sec. 34.35.080 Duration of Lien

    (a) A lien provided for in AS 34.35.050 – 34.35.120 does not bind real property for more than six months after the claim of lien is recorded, unless an action is commenced in the proper court to enforce the lien within

    (1) that time; or

    (2) six months after recording of an extension notice in the same recording office within the original six-month period showing the recording date and the book and page or instrument number of the initial claim of lien, and the balance owing.

    (b) [Repealed, sec. 18 ch 102 SLA 1986].

    (c) A lien whose duration is extended by commencement of an action under (a) of this section is void as against a person who, after the commencement of the action and without knowledge or actual notice of its pendency, acquires an interest in the subject property in good faith for valuable consideration, unless a notice of the pendency of the action has been duly filed for record before the time the person’s
    conveyance is duly filed for record. Notice of the pendency of the action must conform to the requirements of AS 09.45.940.

    Sec. 34.35.085 Lien for Improving Lot or Street

    A person who, at the request of the owner of a lot in the state, grades, fills in, or improves the lot or the street in front of or adjoining the lot has a lien upon the lot for work done and materials furnished. The provisions of AS 34.35.050 – 34.35.120 for securing and enforcing the mechanic’s lien apply to the lien provided by this section.

    Sec. 34.35.090 Payment to Contractor

    A payment by the owner of a building or structure to a prime contractor or subcontractor, made before 90 days from the completion of the building, is not valid to defeat or discharge a lien created by AS 34.35.050 – 34.35.120 in favor of other claimants, unless the payment is distributed among the other claimants. If a payment is distributed in part only, then the payment is valid only to the extent it is distributed.

    Sec. 34.35.095 Amount of Lien

    (a) Except as provided in (c) of this section, a claimant may recover upon a lien recorded by the claimant only the amount due to the claimant according to the terms of the contract, after deducting all claims of other persons claiming through the claimant for work done and materials furnished.

    (b) [Repealed, sec. 9 ch 61 SLA 1979].

    (c) An individual may recover upon a lien recorded by the individual only the amount due according to the terms of the employment.

    Sec. 34.35.100 Action Against Contractor on Lien

    (a) Where a lien is recorded under AS 34.35.050 – 34.35.120 for work done or materials furnished to a prime contractor, the prime contractor shall defend an action at the expense of the prime contractor, and during the pendency of the action the owner may withhold from the prime contractor the amount of money for which the lien is recorded.

    (b) If judgment is given against the owner or the property of the owner upon the liens, the owner may deduct from the amount due or to become due by the owner to the prime contractor the amount of the judgment and costs.

    (c) If the amount of the judgment and costs exceeds the amount due by the owner to the prime contractor, or if the owner settles with that contractor in full, the owner may recover back from the prime contractor an amount paid by the owner in excess of the contract price, and for which the prime contractor was originally liable.

    Sec. 34.35.105 Materials Not Subject to Process

    When a mechanic, artisan, machinist, builder, lumber merchant, contractor, laborer, or other person furnishes or procures materials for use in the construction, alteration, or repair of a building or other improvement, the materials are not subject to attachment, execution, or other legal process to enforce a debt due by the purchaser of the materials except a debt due for the purchase money thereof, so long as the materials have been or are about to be applied in good faith to the construction, alteration, or repair of the building or other improvement.

    Sec. 34.35.110 Actions to Enforce Liens

    (a) An action to enforce a lien created by AS 34.35.050 – 34.35.120 shall be brought in the superior court. The pleadings, process, practice, and procedure are the same as in other cases. Each claimant is entitled to execution for the balance due after distribution. The clerk of the superior court, upon demand, shall issue the execution after the return of the officer making the execution showing the balance due.

    (b) In an action under AS 34.35.050 – 34.35.120 the court shall, upon entering judgment for the plaintiff, allow as a part of the costs all money paid for the filing and recording of the lien and a reasonable amount as attorney fees. An action to enforce a lien created by AS 34.35.050 – 34.35.120 has preference upon the calendar of civil actions of the court and shall be tried without unnecessary delay.

    (c) In an action to enforce a lien created by AS 34.35.050 – 34.35.120 all persons personally liable and all lienholders whose claims have been filed for record under AS 34.35.070 shall be made parties; all other persons interested in the matter in controversy or in the property sought to be charged with the lien may be made parties. However, those persons who are not made parties are not bound by the proceedings. The proceedings upon the foreclosure of a lien created by AS 34.35.050 – 34.35.120 shall, as nearly as possible, conform to the proceedings of a foreclosure of a mortgage lien upon real property.

    Sec. 34.35.112 Payment of Claimant’s Liens

    (a) If more than one lien created under AS 34.35.050 – 34.35.120 is claimed against property, the court in its judgment shall declare the rank of each lien or class of liens in the following order:

    (1) all persons other than prime contractors or subcontractors with lien rights under AS 34.35.050 (1);

    (2) the trustees of employment benefit trusts for persons described in (1) of this subsection;

    (3) all materialmen and subcontractors;

    (4) persons described in AS 34.35.050 (5) and prime contractors, other than the general contractor;

    (5) the general contractor.

    (b) For purposes of AS 34.35.050 – 34.35.120, if the proceeds of the foreclosure sale of the property are insufficient to pay the lien claims of all persons who have recorded claims of lien, the

    (1) liens of all individuals with lien rights under AS 34.35.050 (1) shall first be paid in full, or pro rata if the proceeds are insufficient to pay them in full;

    (2) liens of trustees of employment benefit trusts for persons described in (1) of this subsection shall be paid in full or pro rata if the proceeds are insufficient to pay them in full;

    (3) liens of materialmen and subcontractors shall be paid in full or pro rata if the proceeds are insufficient to pay them in full;

    (4) liens of persons described in AS 34.35.050 (5) and prime contractors other than the general contractor, shall be paid in full or pro rata if the remainder is insufficient to pay them in full; and

    (5) lien of the general contractor shall be paid out of the balance.

    (c) For purposes of AS 34.35.050 – 34.35.120, if the proceeds of the foreclosure sale of the property are sufficient to pay the lien claims of all persons who have recorded claims of lien, the balance shall be paid to the person who owned the property before the foreclosure sale.

    Sec. 34.35.114 Obligation of Claimant and Lender to Provide Information

    (a) A prime contractor, on request, shall provide the following information within five days to any person entitled to claim a lien through the prime contractor:

    (1) a description of the real property being improved sufficient to identify the property;

    (2) the name and address of the owner with whom the prime contractor contracted;

    (3) the name and address of the lender providing construction financing; and

    (4) whether there is a payment bond and, if so, the name of the surety.

    (b) At the request of any person who may claim a lien through a claimant other than a prime contractor, the claimant shall provide, within five days, the name of the person who contracted for the furnishing by the claimant of the labor, materials, services, or equipment from which a lien claim may arise.

    (c) A person who receives a stop-lending notice or notice of right to lien identifying a project for which the person is not the lender shall notify the claimant in writing within 10 days after receipt of the notice that the person is not the lender.

    (d) A claimant shall, within 10 days after receipt of a request, provide an owner or lender to whom the claimant has given a stop-lending notice or notice of right to lien a written statement of the amount due to the claimant and unpaid.

    (e) [Repealed, sec. 18 ch 102 SLA 1986].

    Sec. 34.35.115 Persons Considered Agent of Owner

    Every contractor, subcontractor, architect, builder, or other person having charge of the construction, alteration, or repair, in whole or in part, of a building or other improvement as provided in AS 34.35.050 and 34.35.085, is considered to be the agent of the owner for the purposes of AS 34.35.050 – 34.35.120.

    Sec. 34.35.117 Waiver of Lien Rights

    (a) Except as provided under (b) of this section, a written waiver of lien or stop-lending notice of rights created under AS 34.35.050 – 34.35.120 signed by a claimant requires no consideration and is valid and binding. A waiver permitted under this section may not relate to labor, materials, services, or equipment furnished after the date the waiver is signed by the claimant.

    (b) An individual described in AS 34.35.120 (10) may not waive right to claim a lien under AS 34.35.050 – 34.35.120. A waiver that purports to waive the lien rights of that individual or class of individuals is void.

    Sec.34.35.118 Claimant Liability [Repealed, sec. 18 ch 102 SLA 1986].

    Repealed or Renumbered

    Sec. 34.35.119 Waiver of Liens on Unsold Common Interest Community Units

    (a) A lien created under AS 34.35.050 – 34.35.120 arising out of original construction that becomes subject to AS 34.07 or AS 34.08 before the first sale of a unit within a common interest community after commencement of construction shall be subject to the provisions of this section.

    (b) Subject to (c) of this section, a claimant who claims a lien against an entire common interest community shall release that portion of the lien claim that relates to a particular unit within a common interest community selected by the owner of the unsold common interest community units after the claimant receives a partial payment of the lien claim that is equal to 115 percent of the amount determined

    (1) if the common interest community has been established under AS 34.07 by

    (A) dividing the surface area of the common areas and facilities attendant to the common interest community unit by the surface area of all common areas and facilities of the common interest community building; and
    (B) multiplying the result obtained in (A) of this paragraph by the total amount of the claimant’s lien claim;

    (2) by the allocated interest in the common expenses if the common interest community has been established under AS 34.08.

    (c) A lien claimant is not required to waive a portion of the lien claim under this section unless the amount of indebtedness secured by a prior encumbrance against the common interest community building held by a construction lender is also reduced by an amount calculated in the same manner as provided in (b) of this section.

    Sec. 34.35.120 Definitions In AS 34.35.050 – 34.35.120

    (1) “building or other improvement,” includes a wharf, bridge, ditch, flume, tunnel, fence, well, land clearing, machinery, aqueduct to create hydraulic power, or for mining or other purposes, and all other structures and superstructures;

    (2) “completion” means the cessation of the performance of labor or services or the furnishing of material or equipment on the building or other improvement to be constructed, altered, or repaired and includes, but is not limited to, the following:

    (A) the occupation or use by the owner or an agent of the owner of the building or other improvement constructed, altered, or repaired accompanied by cessation of the furnishing of labor, services, material, or equipment on the building or improvement;

    (B) the acceptance by the owner or an agent of the owner of the construction, alteration, or repair after labor, service, material, or equipment is furnished; or

    (C) the issuance of a certificate of occupancy for a building by a municipality empowered to issue that certificate accompanied by cessation of the furnishing of labor, services, material, or equipment on the building or improvement;

    (3) “construction, alteration, or repair”, includes partial construction, and all repairs done in and upon a building or other improvement;

    (4) “construction financing” means money loaned or other credit extended to an owner secured by an encumbrance on real property to finance a project on that real property;

    (5) “contract price” means the amount agreed upon by the contracting parties for furnishing services, labor, materials, or equipment covered by the contract, increased or diminished by the price of change orders, extras, or amounts attributable to altered specifications; if no price is agreed upon by the contracting parties, “contract price” means the reasonable value of all services, labor, materials, or equipment covered by the contract;

    (6) “draws” means periodic disbursements of construction financing by a lender;

    (7) “encumbrance” means a mortgage, deed of trust, or lien arising other than under AS 34.35.050 – 34.35.120;

    (8) “general contractor” means a person who is a prime contractor and who has the responsibility for supervising all other contractors furnishing labor, materials, services, or equipment in connection with the construction, alteration, or repair of a building or other improvement;

    (9) “give notice” means to mail a notice required under AS 34.35.050 – 34.35.120 by first-class mail and by using a form of mail requiring a signed receipt, or to deliver the notice and obtain a receipt signed by the person to whom it is directed or an agent of that person; a notice is effective when given or delivered to

    (A) a lender at the address designated in the encumbrance securing that lender;

    (B) an owner at the last known address of the owner;

    (C) a prime contractor at the last known address of the prime contractor;

    (D) a potential lien claimant at the address specified in a stop-lending notice or notice of right to lien or claim of lien;

    (10) “individual” means a natural person who actually performs labor upon a building or other improvement as an employee of the owner or any contractor furnishing labor, materials, services, or equipment for the construction, alteration, or repair of a building or other improvement;

    (11) “lender” means any person providing construction financing;

    (12) “materialman” means a person who furnishes materials used in the construction, alteration, or repair of the owner’s real property;

    (13) “owner” means a person who owns real property or a possessory interest in real property and who enters into a contract, express or implied, for a project on that property;

    (14) “potential lien claimant” or “claimant” means any person entitled to assert lien rights under AS 34.35.050 – 34.35.120;

    (15) “prime contractor” means a person who enters into a contract directly with an owner to furnish labor, materials, services, or equipment for the construction, alteration, or repair of a building or other improvement on the owner’s real property;

    (16) “project” means construction, alteration, or repair of an improvement on real property or work done to enhance the real property itself;

    (17) “subcontractor” means a person who enters into a contract with a prime contractor to furnish labor, services, or equipment for the construction, alteration, or repair of a building or other improvement on the owner’s real property and does not include a materialman.

  • Arizona, (post date:2013-04-23 22:52:52)

    Arizona Lien Law

    Notice Req.
    Intent to Lien
    Lien Req.
    Prime Contractor

    The Arizona 20 day preliminary notice, must be delivered to the owner, prime contractor, and the construction owner within the 20 days of first providing services.

    After a Notice of Completion is filed, the time period to file a mechanic’s lien is 60 days, or within 120 days after the completion of the project. Enforcement must be filed within 6 months after the recording of an Arizona mechanic’s lien.

    Sub Contractor

    The Arizona 20 day preliminary notice, must be delivered to the owner, prime contractor, and the construction owner within the 20 days of first providing services.

    After a Notice of Completion is filed, the time period to file a mechanic’s lien is 60 days, or within 120 days after the completion of the project. Enforcement must be filed within 6 months after the recording of an Arizona mechanic’s lien.

    Suppliers/Other

    The Arizona 20 day preliminary notice, must be delivered to the owner, prime contractor, and the construction owner within the 20 days of first providing services.

    After a Notice of Completion is filed, the time period to file a mechanic’s lien is 60 days, or within 120 days after the completion of the project. Enforcement must be filed within 6 months after the recording of an Arizona mechanic’s lien.

    PRIVATE PROJECTS:

    Arizona

    Preliminary Twenty Day Notice, Notice and Claim of Lien, and Stop Notice

    1. Do I have to file any notices before I start working on a property in Arizona?

    Yes! In the state of Arizona you are required to send a Preliminary Twenty Day Notice from the first day you furnished labor and/or material to the project.

    Send a Preliminary notice and GET PAID NOW!

     

    2. Do I have any other notice options if I don’t have a direct contract with the owner of the property?

    Yes! You may file a Stop Payment Notice which places a liens on the funds of the project not a lien on the property.

     

    3. How long do I have to file a claim of lien in Arizona?

    If a notice of completion has been filed you have ONLY 60 days to record a mechanic’s lien. Otherwise you have 120 days after the improvements have been completed.

     

    4. When is my last day of work so that I can file a lien to get paid?

    In Arizona the filing can begin after completing the improvement to the project.

    GET PAIN NOW BY signing up with SunRay Construction Solutions

     

     

    5. Who are not protected under the lien rights in the state of Arizona?

    Suppliers to suppliers, unlicensed contractors, and those who perform professional service that need valid license or certificates.

     

    6. How long do I have to file for a lien of foreclosure?

    After 6 months of recording the mechanic’s lien.

     

    7. What cost can I claim for?

    If you have no contract, but performed services, you can claim a reasonable value for such services.

    File a Mechanic’s Lien NOW!

     

     

    MILLER ACT STATUTE:

    The Arizona “Little Miller Act

    Arizona Revised Statutes, Title 34, Public Buildings and Improvements, Article 2, Contracts, Sections 34–222 through 34-224
    ___________________________________________________________________________________

    © 2007 Arizona State Legislature.

    34-222. Surety bond required; suit on bond; limitations

    A. Except where specifically exempted by statute, before any contract is executed with any person for the construction, alteration, or repair of any public building, a public work or improvement of any county, city or town, or officer, board or commission thereof, and irrigation, power, electrical, drainage, flood protection and flood control districts, tax levying public improvement districts, and county or city improvement districts, the person shall furnish to the agent entering into such contract the following bonds which shall become binding upon the award of the contract to such person, who, for purposes of this article, means “contractor”:

    1. A performance bond in an amount equal to the full contract amount conditioned upon the faithful performance of the contract in accordance with plans, specifications and conditions thereof. Such bond shall be solely for the protection of the public body awarding the contract.

    2. A payment bond in an amount equal to the full contract amount solely for the protection of claimants supplying labor or materials to the contractor or his subcontractors in the prosecution of the work provided for in such contract.

    B. Each such bond shall include a provision allowing the prevailing party in a suit on such bond to recover as a part of the judgment such reasonable attorneys’ fees as may be fixed by a judge of the court.

    C. Notwithstanding any other statute, each such bond shall be executed solely by a surety company or companies holding a certificate of authority to transact surety business in this state issued by the director of the department of insurance pursuant to title 20, chapter 2, article 1. The bonds shall not be executed by an individual surety or sureties, even if the requirements of section 7-101 are satisfied. The bonds shall be payable to the public body concerned.

    D. Such bonds shall be filed in the office of the department, board, commission, institution, agency or other contracting body awarding the contract.

    E. It shall be illegal for the invitation for bids, or any person acting or purporting to act on behalf of the contracting body, to require that such bonds be furnished by a particular surety company, or through a particular agent or broker.

    F. The conditions and provisions in the payment bond regarding the surety’s obligations shall follow the following form:

    Now, therefore, the condition of this obligation is such, that if the principal promptly pays all monies due to all persons supplying labor or materials to the principal or the principal’s subcontractors in the prosecution of the work provided for in the contract, this obligation is void. Otherwise it remains in full force and effect.

    Provided, however, that this bond is executed pursuant to the provisions of title 34, chapter 2, article 2, Arizona Revised Statutes, and all liabilities on this bond shall be determined in accordance with the provisions, conditions and limitations of title 34, chapter 2, article 2, Arizona Revised Statutes, to the same extent as if they were copied at length in this agreement.

    The prevailing party in a suit on this bond shall recover as a part of the judgment reasonable attorney fees that may be fixed by a judge of the court.

    G. The conditions and provisions in the performance bond regarding the surety’s obligations shall follow the following form:

    Now, therefore, the condition of this obligation is such, that if the principal faithfully performs and fulfills all of the undertakings, covenants, terms, conditions and agreements of the contract during the original term of the contract and any extension of the contract, with or without notice to the surety, and during the life of any guaranty required under the contract, and also performs and fulfills all of the undertakings, covenants, terms, conditions and agreements of all duly authorized modifications of the contract that may hereafter be made, notice of which modifications to the surety being hereby waived, the above obligation is void. Otherwise it remains in full force and effect.

    Provided, however, that this bond is executed pursuant to the provisions of title 34, chapter 2, article 2, Arizona Revised Statutes, and all liabilities on this bond shall be determined in accordance with the provisions of title 34, chapter 2, article 2, Arizona Revised Statutes, to the extent as if it were copied at length in this agreement.

    The prevailing party in a suit on this bond shall recover as part of the judgment reasonable attorney fees that may be fixed by a judge of the court.

    H. If the prime contract or specifications require any persons supplying labor or materials in the prosecution of the work to furnish payment or performance bonds, these bonds shall be executed solely by a surety company or companies holding a certificate of authority to transact surety business in this state issued by the director of the department of insurance pursuant to title 20, chapter 2, article 1. Notwithstanding the provisions of any other statute, the bonds shall not be executed by an individual surety or sureties, even if the requirements of section 7-101 are satisfied.

    I. All bonds given by a contractor and surety, pursuant to the provisions of this article, regardless of their actual form, will be deemed by law to be the form required and set forth in this article and no other.

    34-223. Payment bond provisions

    A. Every claimant who has furnished labor or material in the prosecution of the work provided for in such contract in respect of which a payment bond is furnished under the provisions of section 34-222, and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by the claimant or material was furnished or supplied by the claimant for which such claim is made, shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute such action to final judgment for the sum or sums justly due the claimant, and have execution thereon, provided however that any such claimant having a direct contractual relationship with a subcontractor of the contractor furnishing such payment bond but no contractual relationship express or implied with such contractor shall have a right of action upon such payment bond upon giving the contractor only a written preliminary twenty day notice, as provided for in section 33-992.01, subsection C, paragraphs 1, 2, 3 and 4 and subsections E and H, and upon giving written notice to such contractor within ninety days from the date on which such claimant performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied for whom the labor was done or performed. Such notice shall be served by registered or certified mail, postage prepaid, in an envelope addressed to the contractor at any place the contractor maintains an office or conducts business, or at the contractor’s residence.

    B. Every suit instituted under this section shall be brought in the name of the claimant, but no such suit shall be commenced after the expiration of one year from the date on which the last of the labor was performed or materials were supplied by the person bringing this suit.

    C. The contracting body and the agent in charge of its office shall furnish to anyone making written application therefor who states that it has supplied labor or materials for such work, and payment therefor has not been made, or that it is being sued on any such bond, or that it is the surety thereon, a certified copy of such bond and the contract for which it was given, which copy shall be prima facie evidence of the contents, execution and delivery of the original. Applicants shall pay for such certified copies such reasonable fees as the contracting body or the agent in charge of its office fixes to cover the actual cost of preparation thereof.


    34-224. Effect of article on prior contracts

    This article shall not apply to any contract awarded pursuant to any invitation for bids issued on or before the effective date of this article or to any person or bonds in respect to any such contract, but rights, duties and obligations of parties arising under, or incidental to, bonds executed prior to such effective date shall continue to be governed by the prior statutes applicable to such bonds.

    LIEN STATUTE:

    CHAPTER 7 LIENS

    ARTICLE 6 MECHANICS’ AND MATERIALMEN’S LIENS

    33-981 Lien for Labor; Professional Services or Materials Used in Construction, Alteration or Repair of Structures; Preliminary Twenty Day Notice; Exceptions

    A. Except as provided in sections 33-1002 and 33-1003, every person who labors or furnishes professional services, materials, machinery, fixtures or tools in the construction, alteration or repair of any building, or other structure or improvement, shall have a lien on such building, structure or improvement for the work or labor done or professional services, materials, machinery, fixtures or tools furnished, whether the work was done or articles furnished at the instance of the owner of the building, structure or improvement, or his agent.
    B. Every contractor, subcontractor, architect, builder or other person having charge or control of the construction, alteration or repair, either wholly or in part, of any building, structure or improvement is the agent of the owner for the purposes of this article, and the owner shall be liable for the reasonable value of labor or materials furnished to his agent.
    C. A person who is required to be licensed as a contractor but who does not hold a valid license as such contractor issued pursuant to title 32, chapter 10 shall not have the lien rights provided for in this section.
    D. A person required to give preliminary twenty day notice pursuant to section 33-992.01 is entitled to enforce the lien rights provided for in this section only if he has given such notice and has made proof of service pursuant to section 33-992.02.
    E. A person who furnishes professional services but who does not hold a valid certificate of registration issued pursuant to title 32, chapter 1, shall not have the lien rights provided for in this section.
    F. A person who furnishes professional services is entitled to enforce the lien rights provided for in this section only if such person has a written agreement with the owner of the property or with an architect, an engineer or a contractor who has a written agreement with the owner of the property.

    33-982 Claim of Lien by Assignee of Contract or Account for Material Furnished or Labor Performed
    An assignee of a contract or account for material furnished or labor performed may verify, file, record and enforce the contract as if he had been the original owner or holder thereof.

    33-983 Lien for Improvements to City Lots or Other Land
    A. A person who furnishes professional services or material or labors upon a lot in an incorporated city or town, or any parcel of land not exceeding one hundred sixty acres in the aggregate, or fills in or otherwise improves the lot or such parcel of land, or a street, alley or proposed street or alley, within, in front of or adjoining the lot or parcel of land at the instance of the owner of the lot or parcel of land, shall have a lien on the lot or parcel of contiguous land not exceeding one hundred sixty acres in the aggregate, and the buildings, structures and improvements on the lot for professional services or material furnished and labor performed.
    B. Every contractor, subcontractor, architect, builder, subdivider or other person having charge or control of the improvement or work on any such lot or parcel of land, either wholly or in part, is the agent of the owner for the purposes of this section, and the owner shall be liable for the reasonable value of professional services, labor or material furnished at the instance of such agent, upon a lot or parcel of land as prescribed in this section, or any street, alley or proposed street or alley, within, in front of or adjoining such lot or parcel of land.

    33-984 Lien for Labor or Materials Furnished Mill, Factory or Hoisting Works
    Foundrymen, boilermakers, and other persons who labor or furnish materials for the construction, alteration, repair or operation of a mill, factory or hoisting works at the request of the owner shall have a lien thereon for the amount due. If the hoist, factory or mill is located on property not belonging to the owner of the hoist, factory or mill, the purchaser at the sale on foreclosure of the lien may remove them within sixty days after the sale, whether the hoist, factory or mill is a fixture or not. If the hoist, factory or mill is located on a mine, mining claim or mill site which is the property of the owner, the lien shall embrace the surface ground, not exceeding five acres, upon which the hoist, factory or mill is located.

    33-985 Lien for Labor or Materials Furnished Domestic Vessel
    Persons who furnish supplies or material or do repairs or perform labor for or on account of a domestic vessel owned wholly or in part in this state, shall have a lien on the vessel, her tackle, apparel, furniture and freight money for the amount due.

    33-986 Lien for Labor in Cutting Wood, Logs or Ties
    Persons who cut or cord wood, cut, saw or skid logs, cut, saw, hew or pile ties at the request of the owner thereof, shall have a lien thereon for the amount due for the labor performed.

    33-987 Lien for Labor or Materials Furnished on Waterways, Highways, Excavations or Land
    A person who labors or furnishes labor or materials in the construction, alteration or repair of any canal, water ditch, flume, aqueduct or reservoir, bridge, fence, road, highway, cellar, excavation or other structure or improvement, or in the clearing, ditching, bordering or leveling of land, and to whom wages or monies are due or owing therefore, shall have a lien upon such property for all amounts due and unpaid. Materials includes the use of mules, horses, machinery or equipment used in or about such projects.

    33-988 Lien for Labor or Materials Furnished Railroad
    A person who labors or furnishes labor, teams, materials, machinery, fixtures or tools in the construction, repair or operation of a railroad, locomotive, car or other equipment, and to whom money or wages are due or owing therefore, and any person who furnishes provisions or supplies of any kind in the construction or repair of a railroad or to a contractor or subcontractor engaged in such construction or repair, for the housing, maintenance or subsistence of humans or animals employed or used in such construction or repair, and to whom any amount is due or owing therefore, shall have a lien upon the railroad and its equipment for the amounts unpaid.

    33-989 Lien for Labor or Material Furnished Mines and Mining Claims; Priority
    A. A person who labors or furnishes materials or merchandise of any kind, designed for or used in or upon a mine or mining claim, and to whom any amount is due for labor, material or merchandise, shall have a lien upon the mine or mining claim for the unpaid amounts.

    B. The lien provided for in subsection A shall attach when the labor was performed or the material or merchandise furnished:
    1. Under a contract between the person performing the labor or furnishing the material or merchandise and the owner of the mining claim, or his contractor.
    2. Under a contract between the person performing the labor or furnishing the material or merchandise and the lessee of the mine or mining claim, or his contractor, where the lease from the owner to the lessee permits the lessee to develop or work the mine or mining claim.
    3. Under a contract between persons performing the labor or furnishing the material or merchandise, and any person having an option to buy or contract to purchase the mine or mining claim from the owner thereof, where the option or contract permits the person to go upon the mine or mining claim, and to work or develop it.
    C. The lien shall attach to the mine or mining claim in or on which the labor was performed or material or merchandise furnished, in preference to any prior lien or encumbrance or mortgage upon the mine or mining claim.

    33-990 Posting of “No Lien” Notice by Owner Not Operating Mine; Violation; Classification
    A. The provisions of section 33-989 shall not apply and the owner of a mine or mining claim shall not be responsible for any debts when the mine or claim is worked under lease, bond or option from the owner thereof, when the owner conspicuously posts at the collar of all working shafts, tunnels and entrances to the mine and boarding houses, on or before the day the lessee or those working the claim under bond, lease or option begin operations, and records in the office of the county recorder of the county within which the mine or mining claim is located within thirty days from the date of the lease, bond or option, a notice that:
    1. The mine or claim is not being operated by the owner.
    2. The owner will not be liable for labor performed or materials or merchandise furnished in the operation or development of the mine or mining claim.
    3. The mine or claim will not be subject to a lien therefore, referring to the contract, and particularly describing the mine or claim.
    B. The lessee or person operating the mine shall keep the notices posted, and upon failure to do so is guilty of a class 2 misdemeanor.

    33-991 Lands to Which Liens Extend; Rural Lands; City Lots; Subdivision Lots; Mining Claims
    A. If the land upon which an improvement is made and labor or professional services have been performed lies outside of the limits of the recorded map or plat of a townsite, an incorporated city or town, or a subdivision, the lien shall extend to and include not to exceed ten acres of the land upon which the improvement is made and the labor has been performed.
    B. If the land on which an improvement is made or labor or professional services have been performed lies within the limits of a recorded map or plat of a townsite, an incorporated city or town, or a subdivision, the lien shall extend to and include only the particular lot or lots upon which the improvement is made and the labor has been performed.
    C. If the labor is performed or the improvements made upon a mining claim, the lien shall extend to the whole thereof and to the group of which the claim upon which the work was done is a part if the group is operated as one property.

    33-992 Preference of Liens Over Subsequent Encumbrances; Professional Services Liens
    A. The liens provided for in this article, except as provided in subsection B or unless otherwise pecifically provided, are preferred to all liens, mortgages or other encumbrances upon the property attaching subsequent to the time the labor was commenced or the materials commenced to be furnished. The liens provided for in this article except as provided in subsection B are also preferred to all liens, mortgages and other encumbrances of which the lienholder had no actual or constructive notice at the time he commenced labor or commenced to furnish materials.
    B. A notice and claim of lien for professional services shall not be recorded nor shall a lien for professional services attach to the property until labor has commenced on the property or until materials have commenced to be furnished to the property so that it is apparent to any person inspecting the property that construction, alteration or repair of any building or other structure or improvement has commenced.
    C. Liens for professional services shall attach, not before but at the same time, and shall have the same priority as other liens provided for in this article.

    33-992.01 Preliminary Twenty Day Notice; Definitions; Content; Election; Waiver; Service; Single Service; Contract
    A. For the purposes of this section:
    1. “Construction lender” means any mortgagee or beneficiary under a deed of trust lending funds with
    which the cost of the construction, alteration, repair or improvement is, wholly or in part, to be defrayed, or any assignee or successor in interest of either.
    2. “Original contractor” means any contractor who has a direct contractual relationship with the owner.
    3. “Owner” means the person, or his successor in interest, who causes a building, structure or improvement to be constructed, altered or repaired, whether the interest or estate of the person is in fee, as vendee under a contract to purchase, as lessee, or other interest or estate less than fee. Where such interest or estate is held by two or more persons as community property, joint tenants or tenants
    in common, any one or more of the persons may be deemed the owner.
    4. “Preliminary twenty day notice” means one or more written notices from a claimant that are given prior to the recording of a mechanic’s lien and which are required to be given pursuant to this section.
    B. Except for a person performing actual labor for wages, every person who furnishes labor, professional services, materials, machinery, fixtures or tools for which a lien otherwise may be claimed under this article shall, as a necessary prerequisite to the validity of any claim of lien, serve the owner or reputed owner, the original contractor or reputed contractor, the construction lender, if any, or reputed construction lender, if any, and the person with whom the claimant has contracted for the purchase of those items with a written preliminary twenty day notice as prescribed by this section.
    C. The preliminary twenty day notice referred to in subsection B shall be given not later than twenty days after the claimant has first furnished labor, professional services, materials, machinery, fixtures or tools to the jobsite and shall contain the following information:
    1. A general description of the labor, professional services, materials, machinery, fixtures or tools furnished or to be furnished and an estimate of the total price thereof.
    2. The name and address of the person furnishing such labor, professional services, materials, machinery, fixtures or tools.
    3. The name of the person who contracted for the purchase of such labor, professional services, materials, machinery, fixtures or tools.
    4. A legal description, subdivision plat, street address, location with respect to commonly known roads or other landmarks in the area or any other description of the jobsite sufficient for identification.
    5. The following statement in bold-faced type:
    In accordance with Arizona Revised Statutes section 33-992.01, this is not a lien and this is not a reflection on the integrity of any contractor or subcontractor.

    Notice to Property Owner

    If bills are not paid in full for the labor, professional services, materials, machinery, fixtures or tools furnished or to be furnished, a mechanic’s lien leading to the loss, through court foreclosure proceedings, of all or part of your property being improved may be placed against the property. You may wish to protect yourself against this consequence by either:
    1. Requiring your contractor to furnish a conditional waiver and release pursuant to Arizona Revised Statutes section 33-1008, subsection D, paragraphs 1 and 3 signed by the person or firm giving you this notice before you make payment to your contractor.
    2. Requiring your contractor to furnish an unconditional waiver and release pursuant to Arizona Revised Statutes section 33-1008, subsection D, paragraphs 2 and 4 signed by the person or firm giving you this notice after you make payment to your contractor.
    3. Using any other method or device which is appropriate under the circumstances.
    D. The preliminary notice given by any claimant shall follow substantially the following form:

    Arizona preliminary twenty day lien notice

    In accordance with Arizona Revised Statutes section 33-992.01, this is not a lien. This is not a reflection on the integrity of any contractor or subcontractor.

    This preliminary lien notice has The name and address been completed by (name and address of the owner or reputed of claimant): owner is:
    Date: _________________________ By: ___________________________
    Address: ______________________
    The name and address You are hereby notified that the of the original claimant has furnished or will contractor is: furnish labor, professional services, materials, machinery, fixtures or tools of the following general description: The name and address of any lender or reputed lender and/or assigns is: In the construction, alteration or repair of the building, structure or improvement located at: The name and address of the person with whom the claimant has contracted is: And situated upon that certain lot(s)
    or parcel(s) of land in ______________ County, Arizona, described as follows: An estimate of the total price of the labor, professional services, materials, machinery, fixtures or tools furnished or to be furnished is: $______________

    (The following statement shall be in bold-faced type.)
    Notice to Property Owner

    If bills are not paid in full for the labor, professional services, materials, machinery, fixtures or tools furnished, or to be furnished, a mechanic’s lien leading to the loss, through court foreclosure proceedings, of all or part of your property being improved may be placed against the property. You may wish to protect yourself against this consequence by either:
    1. Requiring your contractor to furnish a conditional waiver and release pursuant to Arizona Revised Statutes section 33-1008, subsection D, paragraphs 1 and 3 signed by the person or firm giving you this notice before you make payment to your contractor.
    2. Requiring your contractor to furnish an unconditional waiver and release pursuant to Arizona Revised Statutes section 33-1008, subsection D, paragraphs 2 and 4 signed by the person or firm giving you this notice after you make payment to your contractor.
    3. Using any other method or device that is appropriate under the circumstances. (The following language shall be in type at least as large as the largest type otherwise on the document.)
    Within ten days of the receipt of this preliminary twenty day notice the owner or other interested party is required to furnish all information necessary to correct any inaccuracies in the notice pursuant to Arizona Revised Statutes section 33-992.01, subsection I or lose as a defense any inaccuracy of that information. Within ten days of the receipt of this preliminary twenty day notice if any payment bond has been recorded in compliance with Arizona Revised Statutes section 33-1003, the owner must provide a copy of the payment bond including the name and address of the surety company and
    bonding agent providing the payment bond to the person who has given the preliminary twenty day notice. In the event that the owner or other interested party fails to provide the bond information within that ten day period, the claimant shall retain lien rights to the extent precluded or prejudiced from asserting a claim against the bond as a result of not timely receiving the bond information.

    Dated: ___________________ ___________________________ (Company name) By: ______________________ (Signature) ___________________________ (Title)
    (Acknowledgement of receipt language from Arizona Revised Statutes section 33-992.02 shall be inserted here.)

    E. If labor, professional services, materials, machinery, fixtures or tools are furnished to a jobsite by a person who elects not to give a preliminary twenty day notice as provided in subsection B, such person is not precluded from giving a preliminary twenty day notice not later than twenty days after furnishing other labor, professional services, materials, machinery, fixtures or tools to the same jobsite. Such person, however, is entitled to claim a lien only for such labor, professional services, materials, machinery, fixtures or tools furnished within twenty days prior to the service of such notice and at any time thereafter.
    F. The notice or notices required by this section may be given by mailing the notice by first class mail sent with a certificate of mailing, registered or certified mail, postage prepaid in all cases, addressed to the person to whom notice is to be given at his residence or business address. Service is complete at the time of the deposit of such mail.
    G. A person required by this section to give notice to the owner, to an original contractor, to the construction lender, if any, and to the person with whom the claimant has contracted need give only one such notice to the owner, to the original contractor, to the construction lender, if any, and to the
    person with whom the claimant has contracted with respect to all labor, professional services, materials, machinery, fixtures or tools he furnishes for the building, structure or improvement, unless the actual estimated total price for the labor, professional services, materials, machinery, fixtures or toolsfurnished or to be furnished exceeds by twenty per cent or more the total price in any prior original or subsequent preliminary notice or unless the labor, professional services, materials, machinery, fixtures or tools are furnished under contracts with more than one subcontractor, in which case notice requirements shall be met for all such additional labor, professional services, materials, machinery, fixtures or tools.
    H. If a notice contains a general description required by subsection C of this section of the labor, professional services, materials, machinery, fixtures or tools furnished up to the date of notice, it is not defective because after such date the person giving notice furnishes labor, professional services, materials, machinery, fixtures or tools that are not within the scope of such general description, or exceed by less than twenty per cent the estimated total price thereof. I. Within ten days after receipt of a written request from any person or his agent intending to file a preliminary twenty day notice, which request shall identify the person, his address, the job site and the general nature of the person’s labor, professional services, materials, machinery or tools to which the preliminary twenty day notice shall apply, or within ten days of the receipt of a preliminary twenty day notice, the owner or other interested party shall furnish such person a written statement containing the followinginformation:
    1. The legal description, subdivision plat, street address, location with respect to commonly known roads or other landmarks in the area, or any other description of the job site sufficient for identification.
    2. The name and address of the owner or reputed owner.
    3. The name and address of the original contractor or reputed contractor.
    4. The name and address of the construction lender, if any, or reputed construction lender.
    5. If any payment bond has been recorded pursuant to section 33-1003, a copy of the bond and the name and address of the surety company and bonding agent, if any, providing the payment bond.
    J. Failure of the owner or other interested party to furnish the information required by this section does not excuse any claimant from timely giving a preliminary twenty day notice, but it does stop the owner from raising as a defense any inaccuracy of such information in a preliminary twenty
    day notice, provided the claimant’s preliminary twenty day notice of lien otherwise complies with the provisions of this chapter. If the information is received by the claimant after the claimant has given a preliminary twenty-day notice and the information contained in the preliminary twenty-day
    notice is inaccurate, the claimant shall, within thirty days of the receipt of this information, give an amended preliminary twenty day notice in the manner provided in this section. Such amended preliminary twenty day notice shall be considered as having been given at the same time as the original preliminary twenty day notice, except that the amended preliminary twenty day notice shall be effective only as to work performed, materials supplied or professional services rendered twenty days prior to the date of the amended preliminary twenty day notice or the date the original preliminary twenty day notice was given to the owner, whichever occurs first. If a payment bond has been recorded in compliance with section 33-1003 and the owner or other interested party fails to furnish a copy of the bond and the other information as required by this section, the claimant shall retain lien rights to the extent precluded or prejudiced from asserting a claim against the bond as a direct result of not timely receiving a copy of the bond and the other information from the owner or other interested party.

    33-992.02 Proof of mailing of preliminary twenty day notice; receipt; affidavit
    Proof that the preliminary twenty day notice required by section 33-992.01 was given in accordance with section 33-992.01, subsection F shall be made as follows:

    1. If given by mail, by an acknowledgment of receipt of the notice in a form substantially as follows:

    “___________________________________Signature of sender

    Acknowledgment of receipt of preliminary twenty day notice This acknowledges receipt on (insert date) of a copy of the preliminary twenty day notice at (insert address).

    Date: _____________________________________________________
    (Date this acknowledgment is executed)

    _____________________________________
    Signature of person acknowledging receipt, with title if acknowledgment is made on behalf of another person”

    2. If a person to whom the notice is served pursuant to section 33-992.01, subsection F fails to complete the acknowledgment or fails to complete and return the acknowledgment within thirty days from the date of mailing, proof of mailing may be made by affidavit of the person making the mailing, showing the time, place and manner of mailing and facts showing that such service was made in accordance with section 33-992.01. The affidavit shall show the name and address of the person to whom a copy of the preliminary twenty day notice was mailed, and, if appropriate, the title or capacity in which he was given the notice. If mailing was made by first class mail sent with a certificate of mailing, the certificate of mailing shall be attached to the affidavit. If the mailing was by certified or registered mail, the receipt of certification or registration shall be attached to the affidavit.

    33-993 Procedure to Perfect Lien; Notice and Claim of Lien; Service;

    Recording; Definitions
    A. In order to impress and secure the lien provided for in this article, every person claiming the benefits of this article, within one hundred twenty days after completion of a building, structure or improvement, or any alteration or repair of such building, structure or improvement, or if a notice of completion has been recorded, within sixty days after recordation of such notice, shall make duplicate copies of a notice and claim of lien and record one copy with the county recorder of the county in which the property or some part of the property is located, and within a reasonable time thereafter serve the remaining copy upon the owner of the building, structure or improvement, if he can be found within the county. The notice and claim of lien shall be made under oath by the claimant or someone with knowledge of the facts and shall contain:
    1. The legal description of the lands and improvements to be charged with a lien.
    2. The name of the owner or reputed owner of the property concerned, if known, and the name of the person by whom the lienor was employed or to whom he furnished materials.
    3. A statement of the terms, time given and conditions of the contract, if it is oral, or a copy of the contract, if it is written.
    4. A statement of the lienor’s demand, after deducting just credits and offsets.
    5. A statement of the date of completion of the building, structure or improvement, or any alteration or repair of such building, structure or improvement.
    6. A statement of the date the preliminary twenty day notice required by section 33-992.01 was given. A copy of such preliminary twenty day notice and the proof of mailing required by section 33-992.02 shall be attached.
    B. For purposes of this section, if a work of improvement consists of the construction for residential occupancy of more than one separate building without regard to whether the buildings are constructed pursuant to separate contracts or a single contract, each building is a separate work and the time within which to perfect a lien by recording the notice of lien pursuant to subsection A of this section commences to run on the completion of each separate building. For purposes of this subsection, “separate building” means one structure of a work of improvement and any garages
    or other appurtenant buildings in a multibuilding residential project or residential subdivision.
    C. For the purposes of subsection A of this section, “completion” means the earliest of the following events:
    1. Thirty days after final inspection and written final acceptance by the governmental body which issued the building permit for the building, structure or improvement. 2. Cessation of labor for a period of sixty consecutive days, except when such cessation of labor is due to a strike, shortage of materials or act of God.
    D. If no building permit is issued or if the governmental body that issued the building permit for the building, structure or improvement does not issue final inspections and written final acceptances, then “completion” for the purposes of subsection A of this section means the last date on which any labor, materials, fixtures or tools were furnished to the property.
    E. For the purposes of this section, “notice of completion” means a written notice which the owner or its agent may elect to record at any time after completion of construction as defined in subsection C of this section for the purpose of shortening the lien period, as provided in subsection
    A of this section. A notice of completion shall be signed and verified by the owner or its agent and shall contain the following information:

    1. The name and address of the owner.
    2. The nature of the interest or estate of the owner.
    3. The legal description of the jobsite and the street address. The validity of the notice is not affected by the fact that the street address recited is erroneous or that such strerest or estate stated below in the property hereinafter described, or the undersigned is the owner’s agent.
    2. The full name of the undersigned is _______________.
    3. The full address of the undersigned is _____________________________________________________________________.
    4. The nature of the interest or estate of the owner is:
    in fee. _________________________________(If other than fee, strike “In Fee” and insert, for example, “Purchaser Under Contract of Purchase” or “Lessee”.)
    5. The full names and full addresses of all persons, if any, who hold interest or estate with the undersigned such as joint tenants or tenants in common are:
    Name Address
    ______________________________________________________________
    ______________________________________________________________
    ______________________________________________________________

    6. The full names and full addresses of the predecessors in interest of the undersigned, if the property was transferred after the beginning of the work or improvement:
    Name Address
    ______________________________________________________________
    ______________________________________________________________
    ______________________________________________________________

    7. The nature of the improvements to the real property ______________________________________________________.
    8. The work of improvement on the property hereinafter described was completed in accordance with the definition of completion in Arizona Revised Statutes section 33-993, subsection C. (Fill in the appropriate completion date as defined in Arizona Revised Statutes section 33-993, subsection C.)
    (a) – Date __________________________________________ (thirty days after written final acceptance by governmental body) (b) – Date _________________________________________(sixty
    days after cessation of labor)

    9. The name of the original contractor, if any, for such work or improvement is _______________________________________. (if no contractor, insert “none”)
    10. The street address of the property is _________________________________________________ (include both address and city with zip code)
    11. The legal description of property described above _______________________________________________________________
    (attach exhibit if necessary)

    Verification
    I, the undersigned, certify that I am the owner, the owner’s agent for the property or another interested party in the property, described in the above notice, or I certify that I am the original contractor of the improvements to the real property described in the above notice. I have read the foregoing notice and know and understand the contents thereof, and the facts stated therein are true and correct. I declare under penalty of perjury that the foregoing is true and correct.

    Executed on __________ at ___________________, Arizona. (date) (place where signed)___________________________ (print name)____________________________ (personal signature)____________________________(title) (Acknowledgement) Each notice of completion shall contain the following language in type at least as large as the largest type that otherwise appears on the document:
    In order to shorten the lien period pursuant to Arizona Revised Statutes section 33-993, subsection A, a copy of the notice of completion and a written statement of the date of recording and the county recorder’s record location information shall be served by certified or registered mail, postage prepaid, to the owner, the original contractor and all persons from whom the person recording this notice has
    previously received a preliminary twenty day notice as prescribed by Arizona Revised Statutes section 33-993, subsection I. Notice: Receipt of a notice of completion may alter the time you have to impress and secure a lien in accordance with Arizona Revised Statutes section 33-993, subsection A.
    G. If there is more than one owner, any notice of completion signed by less than all such owners shall recite the name and address of all such owners. If the notice of completion is signed by a successor in interest, it shall recite the names and addresses of his transferor or transferors.
    H. A notice of completion shall be recorded in the office of the county recorder of the county in which the property or some part of the property is located. The county recorder of the county in which the notice of completion is recorded shall index the notice of completion under the index classification in which mechanics’ and materialmen’s liens are recorded.
    I. If a notice of completion has been recorded, the person recording the notice, within fifteen days of recording, shall mail by certified or registered mail postage prepaid a copy of the notice of completion and a written statement of the date of recording and the county recorder’s record location information to the original contractor and all persons from whom the owner has previously received a preliminary
    twenty day notice. In the event the owner or its agent fails to mail a copy of the notice of completion and a written statement of the date of recording and the county recorder’s record location information within fifteen days of recording to any person from whom the owner has received a preliminary twenty day notice, such person shall have one hundred twenty days from completion as defined in section 33-993 to impress and secure the lien provided for in this article.

    33-994 Right of Owner of Property Against Which Lien is Claimed to Withhold Payment to Original Contractor; Procedure

    Upon service of the notice and claim of lien, the owner may retain, out of the amount due or to become due the original contractor, the value of the labor or material furnished as shown by the notice and claim of lien. The owner shall furnish the original contractor with a true copy of the notice and claim of lien and if the contractor does not, within ten days after receipt of the copy, give the owner written notice that he intends to dispute the claim, he shall be considered as assenting to the demand, which shall be paid by the owner when it becomes due.

    33-995 Duty of Contractor to Defend Action on Claim of Lien by Person Other Than a Contractor; Rights of Owner Against Contractor; Other Rights

    A. When a lien is recorded or notice given by any person other than a contractor, the contractor shall defend any action brought thereon.
    B. During pendency of such action the owner may withhold the amount sued for, and if judgment is given upon the lien, he may deduct from any amount due or to become due from him to the contractor the amount of the judgment and costs.
    C. If the owner has settled with the contractor in full, or if such an amount is not owing to the contractor, the owner may recover back from the contractor the amount so paid by him, and for which the contractor was the party originally liable.
    D. Any contractor, subcontractor or other person who is obligated by statute, contract or agreement to defend, remove, compromise or pay any claim of lien or action and who undertakes such activity has the rights of the owner and beneficial title holder against all persons concerning such activity, as specified in sections 33-420 and 33-994.
    E. If any contractor or other person institutes an action to foreclose a lien pursuant to this article, the court may, at its discretion, award the prevailing party on the lien claim all reasonable expenses incurred in the action including attorney fees, other professional services and bond premiums under section 33-1004.

    33-996 Joinder of Persons Claiming Liens; Claimant as Party Defendant; Intervention

    Lienors not contesting the claims of each other may join as plaintiffs, and when separate actions are commenced the court may consolidate them, and make all persons having claims filed parties to the action. Persons claiming liens who fail or refuse to become parties plaintiff shall be made parties defendant, and those not made a party, may, at any time before final hearing, intervene.

    33-997 Sale of Property to Satisfy Lien

    No sale of property to satisfy a lien granted under the provisions of this article shall be made except upon judgment of foreclosure and order of sale.

    33-998 Limitation of Action to Foreclose Lien; Attorney Fees

    A. A lien granted under the provisions of this article shall not continue for a longer period than six months after it is recorded, unless action is brought within that period to enforce the lien and a notice of pendency of action is recorded pursuant to section 12-1191 in the office of the county recorder in the county where the property is located. If a lien claimant is made a party defendant to an action brought by another lien claimant, the filing within such period of six months of an answer or cross-claim asserting the lien shall be deemed the commencement of an action within the meaning of this section.
    B. In any action to enforce a lien granted under this article, the court may award the successful party reasonable attorney fees.

    33-999 Right of Lienholder to Have Land and Improvements Sold Together or Separately; Right of Purchaser to Possession

    A. The person enforcing a lien granted under the provisions of this article may have the lot or land and improvements sold together, or he may have the improvements alone sold when it can be done without material injury to the property beyond the value of the improvements.
    B. When the improvements are sold separately, the purchaser shall be placed in possession by the officer conducting the sale and the purchaser shall have the right to remove the improvements within a reasonable time from the date of purchase.

    33-1000 Priority Among Mechanic’s and Materialman’s Liens; Prorating Proceeds of Foreclosure Sale

    A. The liens for work and labor done or professional services or material furnished, as provided for in this article, are on an equal footing without reference to the date of recording the notice and claim of lien, and without reference to the time of performing the work and labor or furnishing the professional services or material.
    B. When a sale is ordered and the property sold, the proceeds of the sale, if not sufficient to discharge all liens against the property without reference to the date of recording the notice and claim of lien, shall be prorated over the respective liens.

    33-1001 Priority of Claims for Current Wages Owed by Owner of Property Under Levy

    A. When a levy is made under execution, attachment or other similar writ, except when the writ is issued in an action under this article, a miner, mechanic, salesman, servant or laborer who has a claim against the defendant for labor performed may give notice of his claim, sworn to and stating the amount thereof, to the creditor, defendant debtor and the officer executing the writ, at any time within three days before sale of the property levied upon. The officer shall file the claim with the clerk of the court issuing the writ, and unless the claim is disputed by the debtor or creditor before sale, the officer shall pay the claimant from the proceeds of the sale the amount claimant is entitled to receive for such services rendered within sixty days next preceding the levy of the writ, not exceeding two hundred dollars to each claimant. Upon failure of the officer to do so, he shall be liable to the claimant therefore.
    B. The claim may be disputed by the debtor or creditor, or any lienholder, in writing, specifying the reasons for disputing it, verified and delivered to the officer before the sale, and shall be filed in the court issuing the writ. The officer shall pay all claims not disputed from the first money received. If the total amount of all claims presented exceeds the amount derived from the sale, the officer shall pay to the holders of the undisputed claims their pro rata share of the money and shall pay the pro rata amount of the disputed claims, together with an amount for costs as the court orders, into court. The court shall cite all parties interested to appear, and in a summary manner determine the validity of the disputed claims and direct the manner in which the officer shall distribute the proceeds of the sale.

    33-1002 Definitions; Inapplicability of Certain Liens to Owner-occupied Dwelling; Waiver Void
    A. In this section:
    1. “Dwelling” means real property upon which there has been constructed or is to be constructed any building, structure or improvement which is designed for either single one-family or single two-family residential purposes or activities related thereto, including an apartment in a horizontal property regime or other condominium.
    2. “Owner-occupant” means a natural person who:
    (a) Prior to commencement of the construction, alteration, repair or improvement holds legal or equitable title to the dwelling by a deed or contract for the conveyance of real property recorded with the county recorder of the county in which the dwelling is located, and
    (b) Resides or intends to reside in the dwelling at least thirty days during the twelve-month period immediately following completion of the construction, alteration, repair or improvement and does not intend to sell or lease the dwelling to others. Residence in the dwelling or intent to reside in the dwelling
    may be evidenced by the following or other physical acts:
    (i) The placing of his or her personal belongings and furniture in the dwelling, and
    (ii) Occupancy either by the person or members of his or her family. A single act shall not establish a person as an owner-occupant if such person permits exclusive occupancy by other than members of his or her family for other than temporary purposes thereby negating his or her intent to reside in the dwelling primarily for use as his or her home.
    B. No lien provided for in this article shall be allowed or recorded by the person claiming a lien against the dwelling of a person who became an owner-occupant prior to the construction, alteration, repair or improvement, except by a person having executed in writing a contract directly with the owner-occupant.
    C. Any provision of an agreement made or entered into by an owner-occupant which waives the provisions of this section is void.

    33-1003 Payment Bond in Lieu of Lien Right; Bond Purposes and Conditions; Recording

    A. Every owner of land, including any person who has a legal or equitable interest therein, who enters a contract requiring any person to perform labor or professional services or to furnish materials, machinery, fixtures or tools in the construction, alteration or repair of any building, or other structure or improvement on such land, may avoid the lien provisions of section 33-981 pertaining to agents by requiring the person with whom he contracts to furnish a payment bond prior to or at the time of execution of such contract. Upon recordation of the payment bond together with a copy of such contract in the office of the county recorder, in the county in which the land is located, no lien shall thereafter be allowed or recorded by the person claiming a lien against the land on which the labor or professional services are performed or the materials, machinery, fixtures or tools furnished, as provided in this article, except by the person who contracts, in writing, directly with the owner.
    B. A payment bond furnished pursuant to subsection A of this section shall be in a sum equal to the full amount of the contract between the owner and the person with whom the owner contracts, and shall be solely for the protection of claimants performing labor or professional services or furnishing materials, machinery, fixtures or tools to such person or his subcontractor in the prosecution of the work provided for in such contract. The bond shall be conditioned in accordance with the provisions of section 34-223, subsections A and B. The contract recorded with the bond shall contain a legal description of the land on which the work is being or is to be performed.
    C. The bond provided for in this section shall be executed solely by one or more surety companies holding a certificate of authority to transact surety business in this state issued by the director of the department of insurance pursuant to title 20, chapter 2, article 1 and shall be accompanied by a power of attorney disclosing the authority of the person executing the same on behalf of the surety. Notwithstanding any other statute, the bond shall not be executed by an individual surety or sureties, even if the requirements of section 7-101 are satisfied.
    D. The county recorder of the county in which the bond and contract are recorded shall index the bond and contract under the index classification in which mechanics’ and materialmen’s liens are recorded.

    33-1004 Discharge of Mechanic’s Liens; Bond; Limitations of Actions; Discharge of Surety; Judgment

    A. After perfection of a lien pursuant to this article, an owner, including any person who has a legal or equitable interest in the land which is subject to the lien, a contractor, subcontractor, mortgagee or other lien creditor, may, either before or after the commencement of an action to foreclose such lien, cause to be recorded in the office of the county recorder, in the county in which the land is located, a surety bond in the form described in subsection B of this section, together with a power of attorney disclosing the authority of the person executing the same on behalf of the surety. Upon the recordation of such bond, the property shall be discharged of such lien whether or not a copy of the bond is served upon the claimant or he perfects his rights against the bond.
    B. A surety bond to discharge a lien perfected under the provisions of this section shall be executed by the person seeking to discharge such lien, as principal, and by a surety company or companies holding a certificate of authority to transact surety business in this state, issued by the director of the department of insurance pursuant to title 20, chapter 2, article 1. The bond shall be for the sole protection of the claimant who perfected such lien. Notwithstanding any other statute, the surety bond shall not be executed by individual surety or sureties, even if the requirements of section 7-101 are satisfied. The bond shall be in an amount equal to one and one-half times the claim secured by the lien and shall be conditioned for the payment of the judgment which would have been rendered against the property for the enforcement of the lien. The legal description of the property and the docket and page of the lien sought to be discharged shall be set forth in the bond.
    C. The principal on such bond shall, upon recordation thereof with the county recorder, cause a copy of the bond to be served within a reasonable time upon the lien claimant, and if a suit be then pending to foreclose the lien, claimant shall within ninety days after receipt thereof, cause proceedings to be instituted to add the surety and the principal as parties to the lien foreclosure suit.
    D. The bond shall be discharged and the principal and sureties released upon any of the following:
    1. The failure of the lien claimant to commence a suit within the time allowed pursuant to section 33-998.
    2. Failure of the lien claimant to name the principal and sureties as parties to the action seeking foreclosure of the lien if a copy of the bond has been served upon claimant. If the bond is served upon the claimant within less than ninety days from the date claimant would be required to commence his action pursuant to section 33-998, then the claimant shall have ninety days from the date he receives a copy of such bond to add the principal and the sureties as parties to the lien foreclosure suit.
    3. The dismissal of the foreclosure suit with prejudice as to the claimant or the entry of judgment in such suit against claimant.
    E. In an action to foreclose a lien under this article, where a bond has been filed and served as provided herein, a judgment for the claimant on the bond shall be against the principal and his sureties for the reasonable value of the labor and material furnished and shall not be against the property.
    F. In the event a copy of the bond is not served upon the claimant as provided in subsection C of this section, the claimant shall have six months after the discovery of such bond to commence an action thereon, except that no action may be commenced on such bond after two years from the date it was recorded as provided in this section.
    G. The county recorder of the county in which the bond and contract are recorded shall index the bond and contract under the index classification in which mechanics’ and materialmen’s liens are recorded.

    33-1005 Payments Made in Trust

    Monies paid by or for an owner-occupant as defined in section 33-1002 to a contractor, as defined in section 32-1101, as payment for labor, professional services, materials, machinery, fixtures or tools for which a lien is not provided in this article shall be deemed for all purposes to be paid in trust and shall be held by the contractor for the benefit of the person or persons furnishing such labor, professional services, materials, machinery, fixtures or tools. Such monies shall neither be diverted nor used for any purpose other than to satisfy the claims of those for whom the trust is created and shall be paid when due to the person or persons entitled thereto. The provisions of this section shall not affect other remedies available at law or in equity.

    33-1006 Release of Mechanic’s and Materialman’s Liens; Liability

    A. When any lien established by the provisions of this article has been satisfied, the lienholder shall, within twenty days after satisfaction, issue a release of the lien.
    B. When any lien prohibited to be filed against the dwelling of an owner-occupant as defined in section 33-1002 has been recorded, the person claiming the lien shall, within twenty days of the written request of the owner-occupant, issue a release of the lien.
    C. The release issued pursuant to this section shall be in document form as specified in section 11-480. Failure to grant such a release shall subject the lienholder or person to liability in the amount of one thousand dollars and also to liability for actual damages.

    33-1007 Definition of Professional Services

    In this article, unless the context otherwise requires, “professional services” means architectural practice, engineering practice or land surveying practice as defined in section 32-101.

    33-1008 Waiver of Lien

    A. An owner or contractor by any term of their contract, or otherwise, may not waive or impair the claims or liens of other persons whether with or without notice except by their written consent or as prescribed by section 33-1003. Any term of the contract to that effect shall be void. Any written consent given by any claimant pursuant to this section is unenforceable unless the claimant executes and delivers a waiver and release. This waiver and release is effective to release the property for the benefit of the owner, the construction lender, the contractor and the surety on a payment bond from claims and liens only if the waiver and release follows substantially one of the forms set forth in this section and is signed by the claimant or his authorized agent, and, in the case of a conditional release, if there is evidence of payment to the claimant. Evidence of payment may be by the claimant’s endorsement on a single or joint payee check that has been paid by the bank on which it was drawn or by written acknowledgment of payment given by the claimant.
    B. No oral or written statement purporting to waive, release or otherwise adversely affect a claim is enforceable or creates any estoppel or impairment of a claim unless it is pursuant to a waiver and release prescribed by this section or the claimant had actually received payment in full for the claim.
    C. This section does not affect the enforceability of either an accord and satisfaction regarding a bona fide dispute or any agreement made in settlement of an action pending in any court provided the accord and satisfaction or agreement and settlement make specific reference to the mechanic’s lien or bond claims.
    D. The waiver and release given by any claimant is unenforceable unless it follows substantially the following forms in the following circumstances:
    1. Where the claimant is required to execute a waiver and release in exchange for or in order to induce the payment of a progress payment and the claimant is not in fact paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release, the waiver and release shall follow substantially the following form:

    Conditional waiver and release on progress payment
    Project: ______________________
    Job No.: ______________________
    On receipt by the undersigned of a check from_________________(maker of check)
    in the sum of $______________ payable to______________________(amount of check) (payee or payees of check) and when the check has been properly endorsed and has been paid by the bank on which it is drawn, this document becomes effective to release any mechanic’s lien, any state or federal
    statutory bond right, any private bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to claim or payment rights for persons in the undersigned’s position that the undersigned has on the job of

    ______________________________________________________________
    (owner)
    located at __________________________________ to the following extent. This release covers a progress payment (job description) for all labor, services, equipment or materials furnished to the jobsite or to ______________________________________________, (person with whom undersigned contracted) through ___________________ only and does not cover any retention, pending modifications and changes or items (date) furnished after that date. Before any recipient of this document relies on it, that person should verify evidence of payment to the undersigned. The
    undersigned warrants that he either has already paid or will use the monies he receives from this progress payment to promptly pay in full all of his laborers, subcontractors, materialmen and suppliers for all work, materials, equipment or services provided for or to the above referenced project
    up to the date of this waiver.

    Date: _____________________________________________________

    (Company name)
    By: ____________________________(Signature)
    ______________________________ _(Title)

    2. Where the claimant is required to execute a waiver and release in exchange for or in order to induce the payment of a progress payment and the claimant asserts in the waiver that it has been paid the progress payment, the waiver and release shall follow substantially the following form:

    Unconditional waiver and release on progress payment
    Project: _________________
    Job No.: _________________
    The undersigned has been paid and has received a progress payment in the sum of $___________ for all labor, services, equipment or material furnished to the jobsite or to______________________________________________________________(person with whom undersigned contracted) on the job of ___________________________________________________(owner) located at ______________________________________________________(job description) and does hereby release any mechanic’s lien, any state or federal statutory bond right, any private
    bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to claim or payment rights for persons in the undersigned’s position that the undersigned has on the above referenced project to the following extent. This release covers a progress payment for all labor, services, equipment or materials furnished to the jobsite or to ______________________________________________________________ (person with whom undersigned contracted) through _________________only and does not cover any retention, (date) pending modifications and changes or items furnished after that date. The undersigned warrants that he either has already paid or will use the monies he receives from this progress payment to promptly pay in full all of his laborers, subcontractors, materialmen and suppliers for all work, materials, equipment or services provided for or to the above referenced project up to the date of this waiver.

    Dated: _____________________________________________________
    (Company name)By: _____________________________ (Signature)
    _________________________________(Title)(Each unconditional waiver shall contain the following language, in type at least as large as the largest type otherwise on the document:)
    Notice: This document waives rights unconditionally and states that you have been paid for giving up those rights. This document is enforceable against you if you sign it, even if you have not been paid. If you have not been paid, use a conditional release form.
    3. Where the claimant is required to execute a waiver and release in exchange for or in order to induce payment of a final payment and the claimant is not paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release, the waiver and release shall follow substantially the following form:

    Conditional waiver and release on final payment

    Project: _______________
    Job No.: _______________
    On receipt by the undersigned of a check from ________________ (maker of check) in the sum of $_______________ payable to ____________________ (amount of check) (payee or payees of check) and when the check has been properly endorsed and has been paid by the bank on which it is drawn, this document becomes effective to release any mechanic’s lien, any state or federal statutory bond right, any private bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to claim or payment rights for persons in the undersigned’s position, the undersigned has on the job of ___________________ located at ______________________________. (owner) (job description). This release covers the final payment to the undersigned for all labor, services, equipment or materials furnished to the jobsite or to ___________________________________________________, (person with whom undersigned contracted) except for disputed claims in the amount of $_________. Before any recipient of this document relies on it, the person should verify evidence of payment to the undersigned. The undersigned warrants that he either has already paid or will use the monies he receives from this final payment to promptly pay in full all his laborers, subcontractors, materialmen and suppliers for all work, materials, equipment or services provided for or to the above referenced project up to the date of this waiver. Dated: _____________________________________________________ (Company name)
    By: ____________________________ ___________________________(Signature) (Title)
    4. Where the claimant is required to execute a waiver and release in exchange for or in order to induce payment of a final payment and the claimant asserts in the waiver that it has been paid the final payment, the waiver and release shall follow substantially the following form:

    Unconditional waiver and release on final payment
    Project: _______________
    Job No.: _______________
    The undersigned has been paid in full for all labor, services, equipment or material furnished to the jobsite or to _____________________________________________________________,(person with whom undersigned contracted) on the job of _____________ located at _______________________(owner) (job description) and does hereby waive and release any right to mechanic’s lien, any state or federal statutory bond right, any private bond right, any claim for payment and any rights under any
    similar ordinance, rule or statute related to claim or payment rights for persons in the undersigned’s position, except for disputed claims for extra work in the amount of $ __________. The undersigned warrants that he either has already paid or will use the monies he receives from this final payment to promptly pay in full all of his laborers, subcontractors, materialmen and suppliers for all work,
    materials, equipment or services provided for or to the above referenced project.
    Dated: _____________________________________________________ (Company name)
    By: ____________________________ _______________________________ (Signature) (Title)

    (Each unconditional waiver shall contain the following language in type at least as large as the largest type otherwise on the document:) Notice: This document waives rights unconditionally and states that you have been paid for giving up those rights. This document is enforceable against you if you sign it,
    even if you have not been paid. If you have not been paid, use a conditional release form.

  • Arkansas, (post date:2013-04-23 22:53:20)
    Notice Req.
    Intent to Lien
    Lien Req.
    Prime Contractor

    You must file a Pre-Construction Notice to Owner before beginning work on residential projects. On other projects you must file a Notice to Owner or Notice to Contractor within 75 days of last furnishing work and/or materials

    A Notice of Intent to Lien must be filed 10 days before filing a lien. The lien must be filed within 120 days after last furnishing of labor and/or materials. If a Notice of Completion has been filed then the Notice of Intent to Lien must be filed within 60 days. An Action to Enforce must be filed within 15 months of filing the lien.

    N/A

    Sub Contractor

    You must file a Pre-Construction Notice to Owner before beginning work on residential projects. On other projects you must file a Notice to Owner or Notice to Contractor within 75 days of last furnishing work and/or materials

    A Notice of Intent to Lien must be filed 10 days before filing a lien. The lien must be filed within 120 days after last furnishing of labor and/or materials. If a Notice of Completion has been filed then the Notice of Intent to Lien must be filed within 60 days. An Action to Enforce must be filed within 15 months of filing the lien.

    N/A

    Suppliers/Other

    You must file a Pre-Construction Notice to Owner before beginning work on residential projects. On other projects you must file a Notice to Owner or Notice to Contractor within 75 days of last furnishing work and/or materials.

    A Notice of Intent to Lien must be filed 10 days before filing a lien. The lien must be filed within 120 days after last furnishing of labor and/or materials. If a Notice of Completion has been filed then the Notice of Intent to Lien must be filed within 60 days. An Action to Enforce must be filed within 15 months of filing the lien.

    N/A

    PRIVATE PROJECTS:

    Arkansas

    Pre-construction Notice to Owner, Notice to General Contractor, Notice of Intent to File a Lien, Statement of Account

     

    1. Does Arkansas require mandatory notice requirement for residential property?

    Yes! If it is residential and you do not have a direct contract with the owner you must send a Pre-Construction Notice to Owner before work is commenced.

    SECURE YOUR LIEN RIGHTS by sending your Pre-Construction Notice to Owner.

     

    2. Does Arkansas require mandatory notice requirement for commercial property?

    Yes! If it commercial project and you do not have a direct contract with the owner you must send a Notice to Owner and General Contractor.  The notice must be sent within 75 days of the last date labor or materials were furnished to the project.

    SECURE YOUR LIEN RIGHTS by sending your Notice to Owner and General Contractor.

     

    3. Does Arkansas require an intent to lien before filing a lien on residential property?

    Yes! If you do not have a direct contract you must sent a Notice of Intent to File a Lien at least 10 days before filing a lien.

     GET PAID NOW SIGN up with SunRay Construction Solutions

     

    4. Does Arkansas require an intent to lien before filing a lien on commercial property?

    Yes! If you do not have a direct contract you must sent a Notice of Intent to File a Lien at least 10 days before filing a lien

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    5. How long do I have to file a claim of lien? 

    You have a 120 days from the last day you furnished labor and/or to file a Statement of Account and Claim of Lien.

    GET PAID NOW SIGN UP with SunRay Construction Solutions

     

    6. Does Georgia law place special requirements or limits on lower subcontractors or suppliers?

    No, but lower subcontractors and suppliers may not be protected.  A subcontractor is entitled to a lien if the subcontractor provide services directly to a contractor or with a person who has a contract with the contractor.  Because a sub- subcontractor supplies labor or service to a subcontractor who contracted with a contractor, the sub-subcontractor is entitled to a lien.  However, a third-tier subcontractor may not qualify.  Arkansas courts have held that a remote material supplier is not entitled to a lien.  Only material men, who provide materials to a contractor or subcontractor is entitled to a lien under Arkansas law.

    • If a subcontractor provides services to a contractor in a contract they are protected.
    • A sub-subcontractor who provides services to the subcontractor, who is in contract are protected.
    • Third tier subcontractor’s may not qualify
    • Material men who provide services or materials to the contractor or subcontractor are protected.

    GET PAID NOW SIGN up with SunRay Construction Solutions

     

    7. What is considered the last day on the job?

    The last day a contractor or supplier last performed work.  The furnished material, filing period begins the last day an item was furnished.

     

    8. What construction project participants are not protected by the lien law?

    Providers of rental equipment, are not covered by the law.  Also, subcontractors and suppliers may not be protected, unless they provide a Pre-Construction Notice to Owner.

    SECURE YOUR LIEN RIGHTS by sending your Pre-Construction Notice to Owner.

     

    9. How long do I have to file suit to a lien foreclosure?

    Claimants have within 15 months within of filing the lien to start filing a foreclosure suit.

     

    MILLER ACT STATUTE:

    The Arkansas”Little Miller Act

    Arkansas Statutes, Title 22, Public Property, Chapter 9, Public Works, Subchapter 4, Contractors’ Bonds,
    Sections 22-9-401 through 22-9-405

    Copyright © 2010 by the State of Arkansas. All rights reserved.
    ___________________________________________________________________________________

    22-9-401. Coverage.

    (a) All surety bonds required by the State of Arkansas or any subdivisions thereof by any county, municipality, school district, or other local taxing unit, or by any agency of any of the foregoing for the repair, alteration, construction, or improvement of any public works, including, but not limited to, buildings, levees, sewers, drains, roads, streets, highways, and bridges shall be liable on all claims for labor and materials entering into the construction, or necessary or incident to or used in the course of construction, of the public improvements.

    (b) Claims for labor and materials shall include, but not be limited to, fuel oil, gasoline, camp equipment, food for workers, feed for animals, premiums for bonds and liability and workers’ compensation insurance, rentals on machinery, equipment, and draft animals, and taxes or payments due the State of Arkansas or any political subdivision thereof which shall have arisen on account of, or in connection with, wages earned by workers on the project covered by the bond.

    22-9-402. Authorized bonding companies — Agents.

    (a) All bonds enumerated in § 22-9-401 and bid bonds enumerated in § 19-4-405 shall be made by surety companies which have qualified and are authorized to do business in the State of Arkansas.

    (b)(1) The bonds shall be executed by a resident or nonresident agent.

    (2) The resident or nonresident agent shall:

    (A) Be licensed by the Insurance Commissioner to represent the surety company executing the bond; and

    (B) File with the bond the power of attorney of the agent to act on behalf of the bonding company.

    22-9-403. Statutory liability as integral part of bond — Limitation of action.

    (a) The liability imposed by § 22-9-401 on any bond furnished by a public works contractor shall be deemed an integral part of the bond, whether or not the liability is explicitly set out or assumed therein.

    (b)(1) No action shall be brought on a bond after one (1) year from the date final payment is made on the contract, nor shall an action be brought outside the State of Arkansas.

    (2) However, with respect to public works contracts where final approval for payment is given by the Arkansas Building Authority or by an institution of higher education exempt from construction review and approval by the authority, all persons, firms, associations, and corporations having valid claims against the bond may bring an action on the bond against the corporate surety, provided that no action shall be brought on the bond after twelve (12) months from the date on which the authority or the public institution of higher education approves final payment on the state contract, nor shall any action be brought outside the State of Arkansas in accordance with § 18-44-503.

    22-9-404. Subcontractor bonds.

    (a)(1) If required by the general contractor, each subcontractor must provide the general contractor with a payment and performance bond made by a surety company qualified under § 22-9-401 et seq., or a cash bond in a sum equal to the full amount of the subcontractor’s bid on a portion of a public works contract when:

    (A) The subcontractor is the low responsible bidder for that portion of the contract;

    (B) The state, pursuant to § 22-9-204, requires the general contractor to list the subcontractor in the general contractor’s bid; and

    (C) The work value of the subcontractor’s bid is in excess of fifty thousand dollars ($50,000).

    (2) If the general contractor requires the subcontractor to provide a bond, the subcontractor shall provide the bond to the general contractor within five (5) days after the award of the contract by the general contractor to the subcontractor.

    (b) If the subcontractor fails to provide a payment and performance bond when required by the general contractor, the subcontractor shall lose the bid and shall pay to the general contractor a penalty equivalent to ten percent (10%) of the subcontractor’s bid or the difference between the low bid and the next responsible bid and the next responsible low bid, whichever is less, plus cost of recovery of the penalty, including attorney’s fees. The purpose of this section is to compensate the general contractor for the difference between the low bid and the next responsible low bid.

    (c) The general contractor may enforce this section by a civil action in circuit court.

    (d) The provisions of this section shall not apply to contracts awarded by the State Highway Commission for construction or maintenance of public highways, roads, or streets.

    22-9-405. Prohibition on directed suretyship.

    (a) It is unlawful for any contracting body referenced in § 22-9-401 or any person acting on behalf of such contracting body to require a bidder or contractor to obtain or procure any surety bond from any particular insurance company or surety company, agent, or broker or to include surety bonds in an owner-controlled insurance program.

    (b) Any person who violates the provisions of this section is guilty of a Class A misdemeanor.

    LIEN STATUTE:

    TITLE 18 PROPERTY

    SUBTITLE 4 MORTGAGES AND LIENS

    CHAPTER 44 MECHANICS’ AND MATERIALMEN’S LIENS

    SUBCHAPTER 1 GENERAL PROVISIONS

    18-44-101 Persons Entitled to Lien

    18-44-102 Extent of Lien on Land

    18-44-103 Liens on Leaseholds

    18-44-104 Liens for Drainage Improvements

    18-44-105 Engineers and Surveyors Liens

    18-44-106 “Owner” or “Proprietor”

    18-44-107 Definitions

    18-44-108 Lists of Persons Performing Work, Certification

    18-44-109 Use of Materials as Designated

    18-44-110 Priorities, Labor Liens, Foreclosure

    18-44-113 Assignment

    18-44-114 Preliminary Notice

    18-44-115 Notice to Owner

    18-44-116 Service of Notice, Recordation

    18-44-117 Filing of Account

    18-44-118 Release Bond

    18-44-119 Limitations

    18-44-122 Petition to Foreclose Lien

    18-44-123 Parties

    18-44-124 Duty of the Contractor to Defend

    18-44-125 Court Orders

    18-44-126 Publication of Warning Order

    18-44-127 Trial

    18-44-128 Attorneys Fees

    18-44-131 Satisfaction of Lien

    18-44-132 Payment by Contractor to Discharge Lien, Felony, Misdemeanor

    18-44-133 Architects, Engineers, Surveyors, Appraisers, Abstractors, Title Insurance Agents

    18-44-134 Landscaping Liens

    18-44-135 Joint Ownership

    SUBCHAPTER 5 BONDS

    18-44-501 Uniform Bonding Procedure

    18-44-502 Exclusions from Subchapter

    18-44-503 Public Projects, Payment Bonds

    18-44-504 Religious and Charitable Organizations, Payment Bonds

    18-44-505 Private Construction, Payment Bonds

    18-44-506 Condition of the Bond

    18-44-507 Filing Bond

    18-44-508 Actions, Limitations

    ARKANSAS CODE

    TITLE 18 PROPERTY

    SUBTITLE 4 MORTGAGES AND LIENS

    CHAPTER 44 MECHANICS’ AND MATERIALMEN’S LIENS

    SUBCHAPTER 1 GENERAL PROVISIONS

    18-44-101 Persons Entitled to Lien

    (a) Every contractor, subcontractor, or material supplier as defined in section 18-44-107, who supplies labor, services, material, fixtures, engines, boilers, or machinery in the construction or repair of an improvement to real estate, or any boat or vessel of any kind, by virtue of a contract with the owner, proprietor, contractor, or subcontractor, or agent thereof, upon complying with the provisions of this subchapter, shall have, to secure payment, a lien upon the improvement and on up to one (1) acre of land upon which the improvement is situated, or to the extent of any number of acres of land upon which work has been done or improvements erected or repaired.

    (b) If the improvement is to any boat or vessel, then the lien shall be upon the boat or vessel to secure the payment for labor done or materials, fixtures, engines, boilers, or machinery furnished.

    18-44-102 Extent of Lien on Land

    The entire land, to the extent stated in section 18-44-101, upon which any building, erection, or other improvement is situated including that part of the land which is not covered with the building, erection, or other improvement as well as that part of the land which is covered with it, shall be subject to all liens created by this subchapter to the extent, and only to the extent, of all the right, title, and interest owned therein by the owner or proprietor of the building, erection, or other improvement for whose immediate use or benefit the labor was done or things were furnished.

    18-44-103 Liens on Leaseholds

    (a) Every building or other improvement erected or materials furnished, according to the provisions of this subchapter, on leased lots or lands shall be held for the debt contracted for, or on account of it, and also the leasehold term for the lot and land on which it is erected.

    (b) In case the lessee shall have forfeited his lease, the purchaser of the building and leasehold term, or so much of it as remains unexpired, under the provisions of this subchapter, shall be held to the assignee of the leasehold term and, as such, shall be entitled to pay to the lessor all arrears of rent or other money, interest, and costs due under the lease, unless the lessor shall have regained possession of the leasehold land, or obtained judgment for the possession of it on account of the noncompliance by the lessee with the terms of the lease, prior to the commencement of the improvements thereon. In this case the purchaser of the improvements under this subchapter shall have the right only to remove the improvements within sixty (60) days after he shall purchase them, and the owner of the ground shall receive the rent due him payable out of the proceeds of the sale, according to the terms of the lease, down to the time of removing the building.

    18-44-104 Liens for Drainage Improvements

    (a) Every manufacturer or contractor who shall furnish to any landowner any soil or drain pipe or tile for drainage of his land, or who shall put in soil or drain tile for any land, shall have a lien for each tract of forty (40) acres or less of the real estate upon which the tile is placed for the payment of the lien. The lien shall extend for a period of two (2) years.

    (b) The lien for the tile shall attach to the real estate and all improvements thereon in preference to any subsequent liens, encumbrance, or mortgage executed upon the land after the purchase of the tile. The lien shall be enforced in the same manner as a mechanic’s or contractor’s liens.

    18-44-105 Engineers and Surveyors Liens

    Every engineer or surveyor who shall do or perform any engineering or surveying work upon any land, building, erection, or improvement upon land, under or by virtue of any contract or agreement with the owner thereof, or his agent, shall have a lien upon the land, building, erection, or improvement upon land to the extent of the agreed contract price or a reasonable price for those services. However, the lien does not attach to the land, building, erection, or improvement upon land unless and until the lien is duly filed of record with the circuit clerk and recorder in the county in which the land, building, erection, or improvement is located. This recorded lien will be enforced in the same manner as a mechanic’s or contractor’s lien.

    18-44-106 “Owner” or “Proprietor”

    Every person, including all cestui que trust, for whose immediate use, enjoyment, or benefit a building, erection, or other improvement is made, shall be concluded by the words “owner or proprietor thereof,” under this subchapter.

    18-44-107 Definitions

    As used in this subchapter, unless the context otherwise requires:

    (1) “Contractor” means any person who contracts orally or in writing directly with a person holding an interest in real estate, or such person’s agent, for the construction of any improvement to or repair of real estate;

    (2) “Subcontractor” means any person who supplies labor or services pursuant to a contract with the contractor, or to a person in direct privity of contract with such person;

    (3) “Material supplier” means any person who supplies materials, goods, fixtures, or any other tangible item to the contractor or a subcontractor, or an individual having direct contractual privity with such persons; and

    (4) “Person” includes an individual, a partnership, a corporation, a limited liability organization, a trust, or any other business entity recognized by law.

    18-44-108 Lists of Persons Performing Work, Certification

    (a) The owner or proprietor, material supplier, subcontractor, or anyone interested as mortgagee or trustee in the real estate upon which improvements are made under this subchapter, may, at any time, apply to the contractor or subcontractor for the following:

    (1) A list of all parties doing work or furnishing material for the buildings and the amount due to each of the persons;

    (2) Certification that the owner or agent has received the preliminary notice specified under section 18-44-115.

    (b) Any contractor or subcontractor who, upon request, refuses or fails within five (5) business days to give a correct list of the parties furnishing material or doing labor, and the amount due to each, on the building, or who falsely certifies that an owner or agent has received the preliminary notice specified under section 18-44-115, shall be guilty of a misdemeanor and shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500).

    18-44-109 Use of Materials as Designated

    Any contractor or subcontractor who shall purchase materials on credit and represent at the time of purchase that they are to be used in a designated building or other improvement and shall thereafter use, or cause to be used, the materials in the construction of any building or improvement other than that designated without the written consent of the person from whom the materials were purchased, with intent to defraud that person, shall be deemed guilty of a misdemeanor if the materials were valued at one thousand dollars ($1,000) or more and shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500).

    18-44-110 Priorities, Labor Liens, Foreclosure

    (a)(1) The liens for labor performed or material or fixtures furnished, as provided for in this subchapter, shall have equal priority toward each other without regard to the date of filing the account or lien or the date when the particular labor or material was performed or furnished. All such liens shall date from the time that the construction or repair first commenced.

    (2) Construction or repair commences when there is a visible manifestation of activity on real estate that would lead a reasonable person to believe that construction or repair of an improvement to the real estate has begun or will soon begin, including, but not limited to, the following:

    (A) Delivery of a significant amount of lumber, bricks, pipe, tile, or other building material to the site;

    (B) Grading or excavating the site;

    (C) Laying out lines or grade stakes; or

    (D) Demolition in an existing structure.

    (3) In all cases where a sale shall be ordered and the property sold, and the proceeds arising from the sale are not sufficient to discharge in full all the liens against the property without reference to the date of filing the account or lien, the proceeds shall be paid pro rata on the respective liens.

    (b)(1) The liens for labor performed or materials or fixtures furnished, as provided for in this subchapter, shall attach to the improvement on which the labor was performed or the materials or fixtures were furnished in preference to any encumbrance existing on the real estate prior to the commencement of construction or repair of the improvement. In all cases where the prior encumbrance was given for the purpose of funding construction or repair of the improvement, that lien shall have priority over all liens given by this subchapter.

    (2) The liens, as provided for in this subchapter, shall be enforced by foreclosure, as further provided for in this subchapter, and the property ordered sold subject to the lien of the prior encumbrance on the real estate.

    (c) The lien for labor performed and materials or fixtures furnished, as provided for in this subchapter, shall have priority over all other encumbrances that attach to the real estate or improvements thereon subsequent to commencement of construction or repair.

    18-44-113 Assignment

    The lien given in this subchapter shall be transferable and assignable, but it shall not be enforced against the owner or proprietor of the ground or buildings unless the owner or proprietor shall have actual notice of the assignment so as to protect himself.

    18-44-114 Preliminary Notice

    (a) Every person, except the original contractor, who may wish to avail himself of the benefit of the provisions of this subchapter shall give ten (10) days’ notice before the filing of the lien, as required in section 18-44-117(a), to the owner, owners, or agent, or either of them, that he holds a claim against the building or improvement, setting forth the amount and from whom it is due.

    (b)(1) The notice may be served by any officer authorized by law to serve process in civil actions, by any person who would be a competent witness, or by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee.

    (2) When served by an officer, his official return endorsed thereon shall be proof thereof; when served by any other person, the fact of the service shall be verified by affidavit of the person so serving; and when served by mail, the service shall be verified by a return receipt signed by the addressee or the agent of the addressee, or a returned envelope, postal document, or affidavit by a postal employee reciting or showing refusal of the notice by the addressee. If delivery of the mailed notice is refused by the addressee, then the person holding the claim shall immediately mail to the owner, owners, or agent a copy of the notice by first class mail and may proceed to file his lien.

    18-44-115 Notice to Owner

    (a)(1) No lien may be acquired by virtue of this subchapter unless the owner or his authorized agent has received, by personal delivery or by certified mail, a copy of the notice set out in subsection (c) of this section.

    (2) The notice required by this section shall not require the signature of the owner or his authorized agent in instances where the notice is delivered by certified mail.

    (b)(1)(A) It shall be the duty of the contractor to give the owner or his authorized agent the notice set out in subsection (c) of this section on behalf of all potential lien claimants under his contract prior to the supplying of any materials or fixtures.

    (B) Any potential lien claimant may also give notice.

    (2) However, no lien may be claimed by any supplier of material or fixtures unless the owner or agent has received at least one (1) copy of the notice, which need not have been given by the particular lien claimant.

    (c) The notice set forth in this subsection may be incorporated into the contract, or affixed thereto, and shall be conspicuous, worded exactly as stated, in all capital letters, and shall read as follows:

    IMPORTANT NOTICE TO OWNER

    I UNDERSTAND THAT EACH PERSON SUPPLYING MATERIAL OR FIXTURES IS ENTITLED TO A LIEN AGAINST PROPERTY IF NOT PAID IN FULL FOR MATERIALS USED TO IMPROVE THE PROPERTY EVEN THOUGH THE FULL CONTRACT PRICE MAY HAVE BEEN PAID TO THE CONTRACTOR. I REALIZE THAT THIS LIEN CAN BE ENFORCED BY THE SALE OF THE PROPERTY IF NECESSARY. I AM ALSO AWARE THAT PAYMENT MAY BE WITHHELD TO THE CONTRACTOR IN THE AMOUNT OF THE COST OF ANY MATERIALS OR LABOR NOT PAID FOR. I KNOW THAT IT IS ADVISABLE TO, AND I MAY, REQUIRE THE CONTRACTOR TO FURNISH TO ME A TRUE AND CORRECT FULL LIST OF ALL SUPPLIERS UNDER THE CONTRACT, AND I MAY CHECK WITH THEM TO DETERMINE IF ALL MATERIALS FURNISHED FOR THE PROPERTY HAVE BEEN PAID FOR. I MAY ALSO REQUIRE THE CONTRACTOR TO PRESENT LIEN WAIVERS BY ALL SUPPLIERS, STATING THAT THEY HAVE BEEN PAID IN FULL FOR SUPPLIES PROVIDED UNDER THE CONTRACT, BEFORE I PAY THE CONTRACTOR IN FULL. IF A SUPPLIER HAS NOT BEEN PAID, I MAY PAY THE SUPPLIER AND CONTRACTOR WITH A CHECK MADE PAYABLE TO THEM JOINTLY.

    SIGNED:

    ADDRESS OF PROPERTY

    DATE:

    I HEREBY CERTIFY THAT THE SIGNATURE ABOVE IS THAT OF THE OWNER OR AGENT OF THE OWNER OF THE PROPERTY AT THE ADDRESS SET OUT ABOVE.

    CONTRACTOR

    (d) If the contractor supplies a performance and payment bond or if the transaction is a direct sale to the property owner, the notice requirement of subsection (a) of this section shall not apply, and the lien rights arising under this subchapter shall not be conditioned on the delivery and execution of the notice. A sale shall be a direct sale only if the owner orders the materials from the lien claimant or authorizes another person to do so.

    (e)(1)(A) The General Assembly hereby finds that owners and developers of commercial real estate are generally knowledgeable and sophisticated in construction law, are aware that unpaid suppliers of labor and material are entitled to assert liens against the real estate if unpaid, and know how to protect themselves against the imposition of mechanics’ and material suppliers’ liens.

    (B) The General Assembly further finds that consumers who construct or improve residential real estate containing four (4) or fewer units generally do not possess the same level of knowledge and awareness and need to be informed of their rights and responsibilities.

    (C) Because supplying the notice specified in subsection (c) of this section imposes a substantial burden on material suppliers, the notice requirement mandated under subsection (b) of this section as a condition precedent to the imposition of a material supplier’s lien shall only apply to construction of or improvement to residential real estate containing four (4) or fewer units.

    (2)(A) No material supplier or laborer shall be entitled to a lien unless the material supplier or laborer notifies the owner of the commercial real estate being improved, in writing, that such material supplier or laborer is currently entitled to payment, but has not been paid.

    (B) This notice shall be sent to the owner and to the contractor by registered mail, return receipt requested, before seventy-five (75) days have elapsed from the time that the labor was supplied or the material furnished.

    (C) Such notice shall contain the following information:

    (i) A general description of the labor, service, or material furnished, and the amount due and unpaid;

    (ii) The name and address of the person furnishing the labor, service, or materials;

    (iii) The name of the person who contracted for purchase of the labor, service, or materials;

    (iv) A description of the job site sufficient for identification; and

    (v) The following statement set out in boldface type:

    NOTICE TO PROPERTY OWNER
    IF BILLS FOR LABOR, SERVICES, OR MATERIALS USED TO CONSTRUCT AN IMPROVEMENT TO REAL ESTATE ARE NOT PAID IN FULL, A CONSTRUCTION LIEN MAY BE PLACED AGAINST THE PROPERTY. THIS COULD RESULT IN THE LOSS, THROUGH FORECLOSURE PROCEEDINGS, OF ALL OR PART OF YOUR REAL ESTATE BEING IMPROVED. THIS MAY OCCUR EVEN THOUGH YOU HAVE PAID YOUR CONTRACTOR IN FULL. YOU MAY WISH TO PROTECT YOURSELF AGAINST THIS CONSEQUENCE BY PAYING THE ABOVE NAMED PROVIDER OF LABOR, SERVICES, OR MATERIALS DIRECTLY, OR MAKING YOUR CHECK PAYABLE TO THE ABOVE NAMED PROVIDER AND CONTRACTOR JOINTLY.

    3) Any contractor who fails to give the notice required by this subsection shall be guilty of a misdemeanor and shall be punished by a fine not exceeding one thousand dollars ($1,000).

    18-44-116 Service of Notice, Recordation

    (a) Whenever property is sought to be charged with a lien under this subchapter and the owner of the property so sought to be charged is not a resident of this state, or does not have an agent in the county in which the property is situated, or when the owner is a resident of this state but not of the county in which the property is situated, or conceals himself, or has absconded, or absents himself from the usual place of abode, so that the notice required by section 18-44-114 cannot be served upon him, then, in every such case, the notice may be filed with the recorder of deeds of the county in which the property is situated. When filed, it shall have like effect as if served upon the owner or his agent in the manner contemplated in section 18-44-114.

    (b) A copy of the notice so filed, together with the certificate of the recorder of deeds that it is a correct copy of the notice so filed, shall be received in all courts of this state as evidence of the service, as provided in this section, of the notice.

    (c) The recorder of deeds in each county of this state shall receive, file, and keep every such notice presented to him for filing and shall further record it at length in a separate book appropriately entitled. For service so performed, the recorder shall receive for each notice, the sum of twenty-five cents (25 cents), and for each copy certified, as stated in this section, of each of the notices he shall receive the sum of fifty cents (50 cents), to be paid by the party so filing or procuring the certified copy, as the case may be.

    (d) The costs of filing and of one (1) certified copy shall be taxed as costs in any lien suit to which it pertains to abide the result of the suit.

    18-44-117 Filing of Account

    (a) It shall be the duty of every person who wishes to avail himself of the provisions of this subchapter to file, with the clerk of the circuit court of the county in which the building, erection, or other improvement to be charged with the lien is situated and within one hundred twenty (120) days after the things specified in this subchapter shall have been furnished or the work or labor done or performed, a just and true account of the demand due or owing to him after allowing all credits. This account shall contain a correct description of the property to be charged with the lien, verified by affidavit.

    (b) It shall be the duty of the clerk of the circuit court to endorse upon every account the date of its filing and to make an abstract thereof in a book kept by him for that purpose, properly indexed. This abstract shall contain the date of the filing, the name of the person laying or imposing the lien, the amount of the lien, the name of the person against whose property the lien is filed, and a description of the property to be charged with it. For this service, he shall receive the sum of three dollars ($3.00) from the person laying or imposing the lien, which shall be taxed and collected as other costs in case there is suit thereon.

    18-44-118 Release Bond

    (a) In the event any person claiming a lien for labor or materials upon any property shall file such a lien, within the time and in the manner required by law with the circuit clerk or other officer provided by law for the filing of such liens and if the owner of the property, any mortgagee or other person having an interest therein, or any contractor, subcontractor, or other person liable for the payment of such liens shall desire to contest the lien, then the person so desiring to contest the lien may file with the circuit clerk or other officer with whom the lien is filed as required by law a bond with surety, to be approved by the officer in double the amount of the lien claimed. The bond shall be conditioned for the payment of the amount of the lien, or so much thereof as may be established by suit, together with interest and the costs of the action, if upon trial it shall bfound that the property was subject to the lien.

    (b) Upon the filing of the bond, if the circuit clerk or other officer before whom it is filed approves the surety, he shall give to the person claiming the lien, at his last known address, three (3) days’ notice of the filing of the bond. The notice shall be in writing sent by certified mail with return receipt requested. Within that time, the person claiming the lien may appear and question the sufficiency of the surety or form of the bond. At the expiration of three (3) days, if the person claiming the lien shall not have questioned the sufficiency of the bond or surety or if the clerk finds the same to be sufficient, the clerk shall note the filing of the bond upon the margin of the lien record; the lien thereof shall thereupon be discharged and the claimant shall have recourse only against the principal and surety upon the bond.

    (c) If no action to enforce the lien shall be filed within the time prescribed by law for the enforcement of liens against the surety, the bond shall be null and void, but, if any action shall be timely commenced, the surety shall be liable in like manner as the principal.

    (d) If the clerk shall determine that the bond tendered is insufficient, the person tendering the bond shall have twenty-four (24) hours within which to tender a sufficient bond, and, unless a sufficient bond shall be so tendered, the lien shall remain in full force and effect.

    (e) Any party aggrieved by the acceptance or rejection of the bond may apply to any court of competent jurisdiction by an action which is appropriate. The court shall have jurisdiction to enter an interlocutory order, upon notice as required by law, as may be necessary for the protection of the parties by requiring additional security for the bond, by reinstating the lien in default thereof, pending trial and hearing, or by requiring acceptance of the bond as may be necessary for the protection of the parties.

    18-44-119 Limitations

    All actions under this subchapter shall be commenced within fifteen (15) months after filing the lien and prosecuted without unnecessary delay to final judgment. No lien shall continue to exist by virtue of the provisions of this subchapter for more than fifteen (15) months after the lien is filed, unless within that time an action shall be instituted as described in this subchapter.

    18-44-122 Petition to Foreclose Lien

    The petition, among other things, shall allege the facts necessary for securing a lien under this subchapter and shall contain a description of the property to be charged with the lien.

    18-44-123 Parties

    In all suits under this subchapter, the parties to the contract and all other persons interested in the controversy and in the property charged with the lien may be made parties to the suit. Those that are not made parties shall not be bound by the proceedings.

    18-44-124 Duty of the Contractor to Defend

    (a) In all cases where a lien shall be filed under the provisions of this subchapter by any person other than a contractor, it shall be the duty of the contractor to defend at his own expense any action brought thereupon. During the pendency of the action, the owner may withhold from the contractor the amount of money for which the lien shall be filed.

    (b) In case of judgment against the owner or his property upon the lien, the owner shall be entitled to deduct from any amount due by him to the contractor the amount of the judgment and costs. If the owner shall have settled with the contractor in full, he shall be entitled to recover back from the contractor any amount so paid by the owner for which the contractor was originally liable.

    18-44-125 Court orders

    The court shall make orders in the case as will protect and enforce the rights of all interested therein.

    18-44-126 Publication of Warning Order

    Whenever the owner of an erection or improvement, or of land on which an erection or improvement is put, or the owner of any boat or vessel, is a nonresident of the state or resides out of the county in which the erection or other improvement is put, as provided by this subchapter, or when the owner so conceals himself that personal service of summons cannot be had on him, then the mechanic, builder, artisan, workman, laborer, or other persons entitled to a lien under this subchapter, upon instituting suit, may cause a warning order to issue and be published as may be prescribed by law for the issuance of warning orders in proceedings under attachment. Such service shall be binding and of full force and effect.

    18-44-127 Trial

    (a) The court shall ascertain by a fair trial, in the usual way, the amount of the indebtedness for which the lien is prosecuted and may render judgment therefore in any sum not exceeding the amount claimed in the demand filed with the lien, together with interest and costs, although the creditor may have unintentionally failed to render in his account when filed the full amount of credits to which the debtor may have been entitled.

    (b) The judgment, if for plaintiff, shall be that he recover the amount of the indebtedness found due, to be levied out of the property charged with the lien therefore, which property shall be correctly described in the judgment.

    18-44-128 Attorneys Fees

    When any contractor, subcontractor, or material supplier who has filed a lien, as provided for in this chapter, gives notice thereof to the debtor or owner of property which has been subjected to the lien in writing sent by registered or certified mail, and the claim has not been paid within twenty (20) days from the date of the mailing, and if the contractor, subcontractor, or material supplier is required to sue for the enforcement of his claim, the court shall allow the successful party in the action a reasonable attorney’s fee in addition to other relief to which he may be entitled.

    18-44-131 Satisfaction of Lien

    Whenever any indebtedness which is a lien on any real estate, erection, building, or other improvement is paid and satisfied, it shall be the duty of the creditor to enter satisfaction of the lien upon the record or margin thereof in the office of the clerk of the circuit court. Any creditor refusing or neglecting to do so for ten (10) days after payment shall be liable to any person injured to the amount of injury and for cost of suit.

    18-44-132 Payment by Contractor to Discharge Lien, Felony, Misdemeanor

    (a) It shall be unlawful for any contractor, subcontractor, or other person who has performed work or furnished materials for the improvement of any property where the work or materials may give rise to a mechanic’s, laborer’s, or materialman’s lien under the laws of this state, this subchapter, Sections 18-44-201 ¾ 18-44-210 and subchapter 3 of this chapter, or any other statute providing for a mechanic’s, laborer’s, or materialman’s lien, or the assignee of such person, knowingly to receive payment of the contract price or any portion of it without applying the money so received toward the discharge of any liens known to the person receiving the payment, or properly record it as required by statutes, with the intent thereby to deprive the owner or person so paying the contractor or other person receiving payment of his funds without discharging the liens and thereby to defraud the owner or person so paying.

    (b) In any prosecution under this section as against the person so receiving payment, when it shall be shown in evidence that any lien for labor or materials existed in favor of any mechanic, laborer, or materialman and that the lien has been filed within the time provided by law in the office of the circuit clerk or other officer provided by law for the filing of such liens, and that the contractor, subcontractor, or other person charged has received payment without discharging the lien to the extent of the funds received by him, then the fact of acceptance of the payment without having discharged the lien within ten (10) days after receipt of the payment or the receipt of notice of the existence of the lien, whichever event shall occur last, shall be prima facie evidence of intent to defraud on the part of the person so receiving payment.

    (c) If the amount of the contract price so received and not applied to the discharge of the liens, with the intent to defraud, shall exceed the sum of twenty-five dollars ($25.00), the party so receiving shall be deemed guilty of a felony and shall be punished by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the penitentiary for not less than one (1) year nor more than five (5) years, or by both. If the amount so received does not exceed the sum of twenty-five dollars ($25.00), the party shall be deemed guilty of a misdemeanor and punished by imprisonment in the county jail for not more than one (1) year or by fine not less than ten dollars ($10.00) nor more than three hundred dollars ($300), or by both.

    18-44-133 Architects, Engineers, Surveyors, Appraisers, Abstractors, Title Insurance Agents

    (a)(1) Every architect, engineer, surveyor, appraiser, abstractor, or title insurance agent who shall do or perform any architectural, engineering, surveying, appraisal, or abstracting work on, or who shall issue any title insurance policy on any land, building, erection, or improvement upon land, under or by virtue of any written agreement for performance of the work with the owner or his agent thereof shall have a lien upon the land, building, erection, or improvement to the extent of the agreed contract price or a reasonable price for those services.
    (2) However, the lien does not attach to the land, building, erection, or improvement unless and until the lien is duly filed of record with the circuit clerk and recorder in the county in which the land, building, erection, or improvement is located.
    (b) This recorded lien will be enforced in the same manner as a mechanic’s or contractor’s lien.

    18-44-134 Landscaping Liens

    (a)(1) Every person who shall do or perform landscaping services or provide landscaping supplies on any land, building, erection, or improvement upon land, under or by virtue of any written agreement for performance with the owner or his agent thereof shall have a lien upon the land, building, erection, or improvement to the extent of the agreed contract price or a reasonable price for those services.
    (2) However, the lien does not attach to the land, building, erection, or improvement unless and until the lien is duly filed of record with the circuit clerk and recorder in the county in which the land, building, erection, or improvement is located.
    (b) This recorded lien will be enforced in the same manner as a mechanic’s or contractor’s lien.

    18-44-135 Joint Ownership

    In the event that property is jointly owned, the signature of one (1) of the owners is sufficient for the purposes of this chapter.

    SUBCHAPTER 5 BONDS

    18-44-501 Uniform Bonding Procedure

    The bond required or authorized in this subchapter shall in itself be a full compliance with all other statutes of this state in effect relating to bond requirements on contracts for the repair, alteration, or erection of any building, structure, or improvement, public or private, it being the intention of this subchapter to provide a uniform bonding procedure in conjunction with such contracts.

    18-44-502 Exclusions from Subchapter

    This subchapter shall not apply to any contract executed by the Arkansas State Highway and Transportation Department.

    18-44-503 Public Projects, Payment Bonds

    (a) No contract in any sum exceeding twenty thousand dollars ($20,000) providing for the repair, alteration, or erection of any public building, public structure, or public improvement shall be entered into by the State of Arkansas or any subdivision thereof, by any county, municipality, school district, or other local taxing unit, or by any agency of any of the foregoing, unless the contractor shall furnish to the party letting the contract a bond in a sum equal to the amount of the contract.

    (b) All persons, firms, associations, and corporations who have valid claims against the bond may bring an action on the bond against the corporate surety, provided that no action shall be brought on the bond after twelve (12) months from the date on which the Arkansas State Building Services approves final payment on the state contract, nor shall any action be brought outside the State of Arkansas.

    18-44-504 Religious and Charitable Organizations, Payment Bonds

    (a) No contract in any sum exceeding one thousand dollars ($1,000) providing for the repair, alteration, or erection of any building, structure, or improvement shall be entered into by any church, religious organization, charitable institution, or by any agency of the foregoing, unless the contractor shall furnish to the party letting the contract a bond in a sum equal to the amount of the contract.

    (b) The bond shall be filed in the office of the clerk of the circuit court in the county in which the property is situated. Any person or his assigns to whom there is due any sum for labor or material furnished may bring an action on the bond for the recovery of the indebtedness. No action shall be brought after six (6) months from the completion of the church, hospital, orphanage, charitable institution, or benevolent institution. If the bond is not filed as provided in this subsection, any person performing labor or furnishing material, except the principal contractor, shall have a lien upon the property for the unpaid amount of the claim.

    18-44-505 Private Construction, Payment Bonds
    Any person, firm, corporation, or association entering into a contract for the repair, alteration, or erection of any building, structure, or improvement may, at his or its option, require the contractor to furnish a bond in a sum equal to the amount of the contract.

    18-44-506 Condition of the Bond

    The bond required or authorized in this subchapter shall be executed by a solvent corporate surety company authorized to do business in the State of Arkansas. The bond shall be conditioned that the contractor shall faithfully perform his contract and shall pay all indebtedness for labor and materials furnished or performed in the repair, alteration, or erection.

    18-44-507 Filing Bond

    Before any work is performed under the contract, the bond shall be filed with the clerk of the circuit court of the county in which the repairs, alterations, or erection of any building, structure, or improvements are made.

    18-44-508 Actions, Limitations

    All persons, firms, associations, and corporations who have valid claims against the bond may bring an action thereon against the corporate surety. No action shall be brought on the bond after six (6) months from the date final payment is made on the contract, nor outside the State of Arkansas.

  • California, (post date:2013-04-23 22:53:45)
    Notice Req.
    Intent to Lien
    Lien Req.
    Prime Contractor

    If any construction lenders are present, a preliminary 20 day notice must be served from first providing services.

    If a notice of completion or cessation is filed, a mechanic’s lien must be filed within 60 days. If no notice is filed, then within 90 days from the completion of work. Enforcement is de 90 days after recording the claim.

    Sub Contractor

    The prime contractor must be served with a preliminary 20 day notice within 20 days from first providing services.

    If a notice of completion or cessation is filed, a mechanic’s lien must be filed within 30 days. If no notice is filed, then within 90 days from the completion of work. Enforcement is de 90 days after recording the claim.

    Suppliers/Other

    The prime contractor must be served with a preliminary 20 day notice within 20 days from first providing services.

    If a notice of completion or cessation is filed, a mechanic’s lien must be filed within 30 days. If no notice is filed, then within 90 days from the completion of work. Enforcement is de 90 days after recording the claim.

    PRIVATE PROJECTS:

    California

    Preliminary Notice, Stop payment notice, Mechanics Lien

     

    1. Do I have to send any notices before I start work on a property in California if I have a direct contract with the owner?

    Yes! If you have a direct with the owner of the property and there is a lender the lender must receive a Preliminary Notice.

    SECURE YOUR LIEN RIGHTS by sending a Notice to Owner/Notice to Contractor to Performance NOW!

     

    2. Do I have to send any notices before I start work on a property in California if I don’t have a direct contract with the owner?

    Yes! If you do have a direct contract with the owner of the property you must send a Preliminary Notice within  20 days of supplying materials and or labor to the project

     

    3. What if I forget to send a preliminary notice or I missed my 20 day deadline?

    The Preliminary notice can be sent however the subsequent lien will not cover what has been furnished more than 20 days prior to serving the notice.

     GET PAID NOW by signing up with SunRay Construction Solutions

     

    4. How long do I have to file a claim of lien in California?

    90 days after completion of the work.  If the owner recorded a Notice or Completion or a Notice of Cessation 60 days after recording from the prime contractor. All other lien claimant have 30 days to file a claim of lien.

     GET PAID NOW by signing up with SunRay Construction Solutions

     

    5. When is my last day of work so that I can file a lien to get paid?

    From the final date services were last performed or from the Notice of Cessation.

     SECURE YOUR LIEN RIGHTS by filing a Notice of Cessation

    6. Who do not have any lien rights in the state of California?

    An unlicensed contractor or anyone who is not contracted to the project, have no lien rights.

     

    7. How long do I have to file for a lien of foreclosure?

    90 days of recording the lien, or not more than 1 year if a Notice of Credit is filed.

     GET PAID NOW by signing up with SunRay Construction Solutions

     

    8. Who satisfies the lien when I get paid?

    The lien claim is to issue a Release of Lien to be recorded.

     GET PAID NOW by signing up with SunRay Construction Solutions

     

    9. What cost can I claim for?

    Damages and attorney fees are not claimable.

     GET PAID NOW by signing up with SunRay Construction Solutions

    MILLER ACT STATUTE:

    The California “Little Miller Act

    California Statutes, Civil Code, Title 15, Works of Improvement, Chapter 6, Payment Bond for Public Works, Sections 3247 through 3252
    ___________________________________________________________________________________

    Cal. Civ. Code §§ 3247–3252

    3247. 

    (a) Every original contractor to whom is awarded a contract by a public entity, except as provided in subdivision (d) of Section 7103 of the Public Contract Code, involving an expenditure in excess of twenty-five thousand dollars ($25,000) for any public work shall, before entering upon the performance of the work, file a payment bond with and approved by the officer or public entity by whom the contract was awarded. A public entity shall state in its call for bids for any such contract that a payment bond is required in the case of such an expenditure.

    (b) A payment bond filed and approved in accordance with this section shall be sufficient to enter upon the performance of work under a duly authorized contract which supplements the contract for which such payment bond was filed, if the requirement of a new bond is waived by the public entity.

    (c) For purposes of this section, providers of architectural, engineering, and land surveying services pursuant to a contract with a public entity for any public work shall not be deemed an original contractor and shall not be required to post or file the payment bond required in subdivisions (a) and (b). This subdivision shall apply to all contracts entered into subsequent to January 1, 1971. The amendment to this section made during the 1980 portion of the 1979-80 Regular Session of the Legislature by Chapter 293 of the Statutes of 1980, does not constitute a change in, but is declaratory of, existing law.

    3248. 

    In order to be approved, the payment bond shall satisfy all of the following requirements:

    (a) The bond shall be in a sum not less than one hundred percent of the total amount payable by the terms of the contract.

    (b) The bond shall provide that if the original contractor or a subcontractor fails to pay (1) any of the persons named in Section 3181, (2) amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or (3) for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to the work and labor, that the sureties will pay for the same, and also, in case suit is brought upon the bond, a reasonable attorney’s fee, to be fixed by the court. The original contractor may require of the subcontractors a bond to indemnify the original contractor for any loss sustained by the original contractor because of any default by the subcontractors under this section.

    (c) The bond shall, by its terms, inure to the benefit of any of the persons named in Section 3181 so as to give a right of action to those persons or their assigns in any suit brought upon the bond.

    (d) The bond shall be in the form of a bond and not a deposit in lieu of a bond.

    3249. 

    Suit against the surety or sureties on the payment bond may be brought by any claimant, or his assigns, at any time after the claimant has furnished the last of the labor or materials, or both, but must be commenced before the expiration of six months after the period in which stop notices may be filed as provided in Section 3184.

    3250. 

    The filing of a stop notice is not a condition precedent to the maintenance of an action against the surety or sureties on the payment bond. An action on the payment bond may be maintained separately from and without the filing of an action against the public entity by whom the contract was awarded or any officer thereof. In any action, the court shall award to the prevailing party a reasonable attorney’s fee, to be taxed as costs.

    3251. Unless a payment bond is filed and approved as provided in this chapter, no claim in favor of the original contractor arising under the contract shall be audited, allowed or paid by the public entity awarding the contract or any officer thereof. Claimants shall receive payment of their respective claims in the manner provided by Chapter 4 (commencing with Section 3179) upon complying with the provisions thereof. This section shall become operative on the 181st day after it becomes effective.

    3252. 

    (a) With regard to a contract entered into on or after January 1, 1995, in order to enforce a claim upon any payment bond given in connection with a public work, a claimant shall give the 20-day public works preliminary bond notice as provided in Section 3098.

    (b) If the 20-day public work preliminary bond notice was not given as provided in Section 3098, a claimant may enforce a claim by giving written notice to the surety and the bond principal as provided in Section 3227 within 15 days after recordation of a notice of completion. If no notice of completion has been recorded, the time for giving written notice to the surety and the bond principal is extended to 75 days after completion of the work of improvement.

    LIEN STATUTE:
    TITLE 14 LIENCHAPTER 8 DESIGN PROFESSIONALS LIENS3081.1 Definition
    3081.2 Lien on Real Property for Which Work of Improvement is Planned to be Constructed
    3081.3 Conditions to Lien; Preliminary Notice; Notice of Lien
    3081.4 Expiration of Lien; Release
    3081.5 Enforcement
    3081.6 Mechanics Lien Not Affected
    3081.7 Time for Recording
    3081.8 Other Remedies Not Affected
    3081.9 Priorities; Construction Loans
    3081.10 Single Family DwellingsTITLE 15 WORKS OF IMPROVEMENTCHAPTER 1 GENERAL DEFINITIONS3082 Chapter Governs Construction of Title
    3083 Bonded Stop Notice
    3084 Claim of Lien
    3085 Claimant
    3086 Completion
    3087 Construction Lender
    3088 Contract
    3089 Laborer
    3090 Materialman
    3092 Notice of Cessation
    3093 Notice of Completion
    3094 Notice of Nonresponsibility
    3095 Original Contractor
    3096 Payment Bond
    3097 Preliminary Twenty-Day Notice (Private Work)
    3097.1 Proof of Service of Preliminary Notice
    3098 Preliminary Twenty-Day Notice (Public Work)
    3099 Public Entity
    3100 Public Work
    3101 Site
    3102 Site Improvement
    3103 Elements of Stop Notice; Service
    3104 Subcontractor
    3105 Subdivision
    3106 Work of Improvement

    CHAPTER 2 MECHANICS LIENS

    ARTICLE 1 APPLICATION OF CHAPTER

    3109 Application

    ARTICLE 2 WHO IS ENTITLED TO LIEN

    3110 Person Who Have Lien Rights
    3111 Fringe Benefit Trusts
    3111.5 Written Statement from Fringe Benefit Trust to Subcontractor
    3112 Persons Who Furnish Site Improvements Have Lien Rights

    ARTICLE 3 CONDITIONS TO ENFORCING A LIEN

    3114 Preliminary Twenty-Day Notice
    3115 Original Contractor: Sixty Days After Notice of Completion
    3116 Claimant Other Than Original Contractor: Thirty Days After Notice of Completion
    3117 Completion of Separate Original Contract
    3118 Willful Inclusion of Items not Furnished; Forfeiture

    ARTICLE 4 AMOUNT OF LIEN

    3123 Amount of Lien; Charges
    3124 Services and Materials not Included in Original Contract

    ARTICLE 5 PROPERTY SUBJECT TO LIEN

    3128 Liens Attach to Land Including Space for Convenient Use and Occupations
    3129 Notice of Nonresponsibility Protects Against Liens Suffered by Tenants
    3130 Lien Against two or More Buildings should Designate Amount Due on Each
    3131 Residential Units Considered Separate Works of Improvement

    ARTICLE 6 PRIORITIES

    3134 Claim of Lien Takes Priority from Commencement of Work of Improvement
    3135 Separate Contract for Site Improvements (Offsite Improvements)
    3136 Optional Advances by Construction Lender
    3137 Priority of Liens for Site Improvements Over Deed of Trust Securing Construction Loan
    3138 Payment Bond to Secure Priority of Trust Deed
    3139 Payment Bond to Secure Priority of Trust Deed Over Liens for Site Improvements
    3140 Amount of Lien After Deducting Credits and Offsets

    ARTICLE 7 ENFORCEMENT OF LIEN

    3143 Release Bond
    3144 Time for Filing Foreclosure Suit
    3144.5 Notice of Recording Release Bond; Statute of Limitations on Bond
    3145 Notice of Agreement of Credit or Extension of the Lien; Recording
    3146 Notice of Pendency of Action
    3147 Discretionary Two-Year Dismissal
    3148 Effect of Dismissal or Judgment
    3149 Joinder and Consolidation of Foreclosure Actions
    3150 Recording Costs
    3151 Deficiency Judgment
    3152 Lien does not Affect the Right to Maintain a Personal Action or Issuance of a Writ of Attachment
    3153 Contractor Shall Defend Owner Against Mechanics Lien Actions; Liability of Performance Bond Surety
    3154 Petition for Decree to Release Lien

    CHAPTER 3 STOP NOTICES FOR PRIVATE WORKS OF IMPROVEMENT

    ARTICLE 1 APPLICATION OF CHAPTER

    3156 Chapter does not Apply to Public Works

    ARTICLE 2 WHO IS ENTITLED TO SERVE A STOP NOTICE AND BONDED STOP NOTICE

    3158 Claimants Other Than Original Contractor; Written Demand for Stop Notice; Forfeiture of Mechanics Lien Right
    3159 Stop Notice to Construction Lender; Payment Bond; Net Amount of Stop Notice

    ARTICLE 3 CONDITIONS TO VALID SERVICE OF STOP NOTICE AND BONDED STOP NOTICE

    3160 Preliminary Twenty-Day Notice; Time for Service of Stop Notice

    ARTICLE 4 EFFECT OF STOP NOTICE AND BONDED STOP NOTICE

    3161 Duty of Owner to Withhold; Payment Bond
    3162 Duty of Construction Lender to Withhold; Payment Bond
    3163 Objection to Sufficiency of Sureties on Stop Notice Bond

    ARTICLE 5 PRIORITIES

    3166 Stop Notice Takes Priority Over Assignment of Construction Loan Funds
    3167 Pro Rata Distribution
    3168 Willfully False Stop Notice; Forfeiture

    ARTICLE 6 RELEASE OF STOP NOTICE OR BONDED STOP NOTICE

    3171 Release Bond

    ARTICLE 7 ENFORCEMENT OF RIGHTS ARISING FROM STOP NOTICE AND BONDED STOP NOTICE

    3172 Action to Enforce Stop Notice Claim: Commencement; Five-Day Notice of Commencement
    3173 Discretionary Two-Year Dismissal
    3174 Effect of Dismissal or Judgment
    3175 Joinder and Consolidation; Impleader
    3176 Attorneys Fees to Prevailing Party
    3176.5 Interest on Stop Notice Claim

    CHAPTER 4 STOP NOTICE FOR PUBLIC WORK

    ARTICLE 1 APPLICATION OF CHAPTER

    3179 Chapter Applies Only to Public Work

    ARTICLE 2 WHO IS ENTITLED TO SERVE A STOP NOTICE

    3181 Authorized Claimants

    ARTICLE 3 CONDITIONS TO SERVICE OF STOP NOTICE

    3183 Preliminary Twenty-Day Notice (Public Work)
    3184 Time for Service of Stop Notice
    3185 Notice of Completion; Acceptance of Completion; Public Agency to Notify Stop Notice Claimants
    3186 Duty to Withhold
    3187 Payments to Original Contractor

    ARTICLE 4 PRIORITIES

    3190 Claims Paid Pro Rata
    3191 Recovery from Payment Bond Surety
    3192 False Stop Notice; Forfeiture
    3193 Stop Notice Takes Priority Over Assignments and Garnishments

    ARTICLE 5 RELEASE OF STOP NOTICE

    3196 Release Bond
    3197 Summary Adjudication of Stop Notice Claim
    3198 Contractor’s Affidavit
    3199 Service of Affidavit
    3200 Counter-Affidavit
    3201 Action for Declaratory Relief; Hearing in Fifteen Days
    3202 Burden of Proof; Evidence
    3203 Release Order
    3204 Jury Trial
    3205 Determination Not Res Judicata

    ARTICLE 6 ENFORCEMENT OF RIGHTS ARISING FROM STOP NOTICE

    3210 Statute of Limitations; Commencement of Action
    3211 Five-Day Notice of Commencement
    3212 Discretionary Two-Year Dismissal
    3213 Dismissal; Judgment
    3214 Joinder; Consolidation; Impleader

    CHAPTER 5 GENERAL PROVISIONS RELATING TO BONDS

    ARTICLE 1 CONSTRUCTION OF AND TERMS AND CONDITIONS OF BONDS

    3225 No Exoneration or Release by Changes or Rescission
    3226 Bonds Construed Against Surety; Conditions of Recovery
    3227 Written Notice to Surety

    CHAPTER 6 PAYMENT BOND FOR PRIVATE WORKS

    ARTICLE 1 PROVISION FOR AND EFFECT OF FILING CONTRACT AND PAYMENT BOND

    3235 Recording Payment Bond Before Work has Commenced; Restriction of Recovery
    3236 Limits to Owner’s Liability
    3237 Acceptance by Lending Institution of Payment Bond

    ARTICLE 2 CONDITIONS TO ACTION ON PAYMENT BOND

    3239 Recording Payment Bond; Statute of Limitations
    3240 Limitations
    3242 Enforcement of Claim Upon Payment Bond (Private Work)

    CHAPTER 7 PAYMENT BOND FOR PUBLIC WORKS

    3247 Payment Bond Requirement
    3248 Contents of Payment Bond; Amount
    3249 Suit Against Surety; Six-Month Statute of Limitations
    3250 Action on Payment Bond; Attorneys Fees
    3251 Payments to Original Contractor
    3252 Condition Precedent; Ninety-Day Preliminary Bond Notice
    3253 Delivery of Notice to Surety and Bond Principal

    CHAPTER 8 MISCELLANEOUS PROVISIONS

    3258 Recording Documents Required by this Chapter
    3259 Rules of Practice
    3260 Retention Proceeds and Payments
    3260.1 Prompt Payment of Progress Payments to Contractor; Good Faith Dispute
    3261 Mistakes or Errors in Claims of Lien
    3262 Impairment of Claims of Lien; Forms of Release; Accord and Satisfaction
    3262.5 Prompt Payment of Progress Payments to Subcontractors; Good Faith Disputes; Penalties; Attorneys Fees
    3263 Prevention of Performance; Exoneration of Sureties
    3264 No Equitable Rights Against Construction Funds; Exceptions
    3265 Claims Requirements of Government Code Inapplicable to Stop Notice Action
    3266 Oil and Gas Lien Act; Streets and Highways Code
    3267 Limitation of Claims Against Payment Bond

    TITLE 16 GENERAL PROVISIONS

    3268 Waiver

    ARTICLE XIV LABOR RELATIONS

    § 3 Mechanics Liens

    Mechanics, persons furnishing materials, artisans, and laborers of every class, shall have a lien upon the property upon which they have bestowed labor or furnished material for the value of such labor done and material furnished; and the Legislature shall provide, by law, for the speedy and efficient enforcement of such liens.

    CIVIL CODE

    TITLE 14 LIEN

    CHAPTER 8 DESIGN PROFESSIONALS LIENS

    3081.1 Definition

    For purposes of this chapter, design professional means any certificated architect, registered professional engineer, or licensed land surveyor who furnishes services pursuant to a written contract with a landowner for the design, engineering, or planning of a work of improvement. Except as otherwise expressly provided, the definition in this section does not apply to, or limit or expand the meaning of, provisions of law other than this chapter.

    3081.2 Lien on Real Property for Which Work of Improvement is Planned to be Constructed

    A design professional shall, from the date of recordation pursuant to Section 3081.3, have a lien upon the real property for which the work of improvement is planned to be constructed, notwithstanding the absence of commencement of actual construction of the planned work of improvement, if the landowner contracted for the design professional’s services and is also the owner of the real property at the time of recordation of the lien. The lien of the design professional shall be for the amount of the design professional’s fee for any services rendered prior to commencement of the work of improvement or the reasonable value of those services, whichever is less. The amount of the lien shall be reduced by the amount of any deposit or prior payments, as specified by a written contract entered into by the design professional and by the landowner or his or her agent. However, no lien shall arise pursuant to this chapter, and a design professional may not record a notice of lien pursuant to subdivision (c) of Section 3081.3, unless a building permit or other governmental approval in furtherance of the work of improvement has been obtained in connection with or utilizing the services rendered by the design professional.

    3081.3 Conditions to Lien; Preliminary Notice; Notice of Lien

    In order for the design professional to be entitled to a lien pursuant to Section 3081.2, all of the following shall occur:
    (a) The landowner defaults in any payment required pursuant to the terms of the written contract or refuses to pay upon the demand of the design professional made in accordance with the written contract. (b) Not less than 10 days prior to recordation pursuant to subdivision (c), the design professional mails by first-class registered or certified mail, postage prepaid, addressed to the landowner, a written demand for payment specifying that a default has occurred pursuant to the contract or agreement and the amount of the default. (c) The design professional records, in the office of the county recorder in the county in which the real property or some portion thereof is located, a notice of lien which specifies that a lien is created in favor of the named design professional, specifies the amount thereof, identifies the current owner of record of the real property, provides a legal description of the real property to be improved, and specifies the building permit or other governmental approval for the work of improvement required as a condition of recording the notice of lien by Section 3081.2.

    3081.4 Expiration of Lien; Release

    (a) Upon recordation of the notice of lien pursuant to subdivision (c) of Section 3081.3, a lien is created in favor of the named design professional.
    (b) The lien created pursuant to subdivision (a) shall automatically expire and be null and void and of no further force or effect on the occurrence of either of the following:
    (1) The commencement of the work of improvement for which the design professional furnished services at the request of the landowner.
    (2) The expiration of 90 days after recording the notice of lien, unless the design professional files suit to enforce the lien within 90 days of recordation.
    (c) In the event the landowner partially or fully satisfies the lien of the design professional, the design professional shall execute and record a document which evidences a partial or full satisfaction and release of the lien, as the case may be.

    3081.5 Enforcement

    Any design professionals’ lien perfected pursuant to this chapter shall be enforced pursuant to the provisions contained in Article 7 (commencing with Section 3143) of Chapter 2 of Title 15.

    3081.6 Mechanics Lien Not Affected

    This chapter does not affect the ability of a design professional to obtain a mechanic’s lien pursuant to Title 15 (commencing with Section 3082) of this part.

    3081.7 Time for Recording

    A design professional shall record a notice of lien pursuant to subdivision (c) of Section 3081.3 no later than 90 days after the design professional knows or has reason to know that the landowner is not commencing the work of improvement.

    3081.8 Other Remedies Not Affected

    The lien of a design professional perfected pursuant to this chapter shall not affect the ability of the design professional to pursue other remedies.

    3081.9 Priorities; Construction Loans

    (a) No lien created by this chapter shall affect or take priority over the interest of record of a purchaser, lessee, or encumbrancer, if the interest of the purchaser, lessee, or encumbrancer in the real property was duly recorded before recordation of the design professionals’ lien.
    (b) No lien created by this chapter shall affect or take priority over an encumbrance of a construction lender which funds the loan to commence the work of improvement for which the design professional furnished services at the request of the landowner.

    3081.10 Single Family Dwellings
    The design professionals’ lien provided in this chapter shall not apply to a work of improvement relating to a single-family owner occupied residence where the construction costs are less than one hundred thousand dollars ($100,000) in value.

    TITLE 15 WORKS OF IMPROVEMENT

    CHAPTER 1 GENERAL DEFINITIONS

    3082 Chapter Governs Construction of Title

    Unless the context otherwise requires, the provisions in this chapter govern the construction of this title.

    3083 Bonded Stop Notice

    Bonded stop notice means a stop notice, given to any construction lender, accompanied by a bond with good and sufficient sureties in a penal sum equal to 11/4 times the amount of such claim conditioned that if the defendant recovers judgment in an action brought on such verified claim or on the lien filed by the claimant, the claimant will pay all costs that may be awarded against the owner, original contractor, construction lender, or any of them, and all damages that such owner, original contractor, or construction lender may sustain by reason of the equitable garnishment effected by the claim or by reason of the lien, not exceeding the sum specified in the bond. To be effective such bonded stop notice shall be delivered to the manager or other responsible officer or person at the office of the construction lender or must be sent to such office by registered or certified mail. If such notice is delivered or sent to any institution or organization maintaining branch offices, it shall not be effective unless delivered or sent to the office or branch administering or holding such construction funds.

    3084 Claim of Lien

    (a) Claim of lien means a written statement, signed and verified by the claimant or by the claimant’s agent, containing all of the following:
    (1) A statement of the claimant’s demand after deducting all just credits and offsets.
    (2) The name of the owner or reputed owner, if known.
    (3) A general statement of the kind of labor, services, equipment, or materials furnished by the claimant.
    (4) The name of the person by whom the claimant was employed or to whom the claimant furnished the labor, services, equipment, or materials.
    (5) A description of the site sufficient for identification.
    (b) A claim of lien in otherwise proper form, verified and containing the information required by this section shall be accepted by the recorder for recording and shall be deemed duly recorded without acknowledgment.

    3085 Claimant

    Claimant means any person entitled under this title to record a claim of lien, to give a stop notice in connection with any work of improvement, or to recover on any payment bond, or any combination of the foregoing.

    3086 Completion

    Completion means, in the case of any work of improvement other than a public work, actual completion of the work of improvement. Any of the following shall be deemed equivalent to a completion:
    (a) The occupation or use of a work of improvement by the owner, or his agent, accompanied by cessation of labor thereon.
    (b) The acceptance by the owner, or his agent, of the work of improvement.
    (c) After the commencement of a work of improvement, a cessation of labor thereon for a continuous period of 60 days, or a cessation of labor thereon for a continuous period of 30 days or more if the owner files for record a notice of cessation.
    If the work of improvement is subject to acceptance by any public entity, the completion of such work of improvement shall be deemed to be the date of such acceptance; provided, however, that, except as to contracts awarded under the State Contract Act, Chapter 3 (commencing with Section 14250), Part 5, Division 3, Title 2 of the Government Code, a cessation of labor on any public work for a continuous period of 30 days shall be a completion thereof.

    3087 Construction Lender

    Construction lender means any mortgagee or beneficiary under a deed of trust lending funds with which the cost of the work of improvement is, wholly or in part, to be defrayed, or any assignee or successor in interest of either, or any escrow holder or other party holding any funds furnished or to be furnished by the owner or lender or any other person as a fund from which to pay construction costs.

    3088 Contract
    Contract means an agreement between an owner and any original contractor providing for the work of improvement or any part thereof.

    3089 Laborer

    Laborer means any person who, acting as an employee, performs labor upon or bestows skill or other necessary services on any work of improvement.

    3090 Materialmen

    Materialman means any person who furnishes materials or supplies to be used or consumed in any work of improvement.

    3092 Notice of Cessation

    Notice of cessation means a written notice, signed and verified by the owner or his agent, containing all of the following:
    (a) The date on or about when the cessation of labor commenced.
    (b) A statement that such cessation has continued until the recording of the notice of cessation.
    (c) The name and address of the owner.
    (d) The nature of the interest or estate of the owner.
    (e) A description of the site sufficient for identification, containing the street address of the site, if any. If a sufficient legal description of the site is given, the validity of the notice shall not, however, be affected by the fact that the street address is erroneous or is omitted.
    (f) The name of the original contractor, if any, for the work of improvement as a whole.
    (g) For the purpose of this section, owner means the owner who causes a building, improvement, or structure, to be constructed, altered, or repaired (or his successor in interest at the date of a notice of cessation from labor is filed for record) whether the interest or estate of such owner be in fee, as vendee under a contract of purchase, as lessee, or other interest or estate less than the fee. Where such interest or estate is held by two or more persons as joint tenants or tenants in common, any one or more of the cotenants may be deemed to be the owner within the meaning of this section. Any notice of cessation signed by less than all of such cotenants shall recite the names and addresses of all such cotenants.

    The notice of cessation shall be recorded in the office of the county recorder of the county in which the site is located and shall be effective only if there has been a continuous cessation of labor for at least 30 days prior to such recording.

    3093 Notice of Completion

    Notice of completion means a written notice, signed and verified by the owner or his agent, ontaining
    all of the following:
    (a) The date of completion (other than a cessation of labor). The recital of an erroneous date of completion shall not, however, affect the validity of the notice if the true date of completion is within 10 days preceding the date of recording of such notice.
    (b) The name and address of the owner.
    (c) The nature of the interest or estate of the owner.
    (d) A description of the site sufficient for identification, containing the street address of the site, if any. If a sufficient legal description of the site is given, the validity of the notice shall not, however, be affected by the fact that the street address recited is erroneous or that such street address is omitted.
    (e) The name of the original contractor, if any, or if the notice is given only of completion of a contract for a particular portion of such work of improvement, as provided in Section 3117, then the name of the original contractor under such contract, and a general statement of the kind of work done or materials furnished pursuant to such contract.

    The notice of completion shall be recorded in the office of the county recorder of the county in which the site is located, within 10 days after such completion. A notice of completion in otherwise proper form, verified and containing the information required by this section shall be accepted by the recorder for recording and shall be deemed duly recorded without acknowledgment.

    If there is more than one owner, any notice of completion signed by less than all of such co-owners shall recite the names and addresses of all of such co-owners; and provided further, that any notice of completion signed by a successor in interest shall recite the names and addresses of his transferor or transferors.

    For the purpose of this section, owner is defined as set forth in subdivision (g) of Section 3092.

    3094 Notice of Nonresponsibility

    Notice of nonresponsibility means a written notice, signed and verified by a person owning or claiming an interest in the site who has not caused the work of improvement to be performed, or his agent, containing all of the following:
    (a) A description of the site sufficient for identification.
    (b) The name and nature of the title or interest of the person giving the notice.
    (c) The name of the purchaser under contract, if any, or lessee, if known.
    (d) A statement that the person giving the notice will not be responsible for any claims arising from the work of improvement.

    Within 10 days after the person claiming the benefits of nonresponsibility has obtained knowledge of the work of improvement, the notice provided for in this section shall be posted in some conspicuous place on the site. Within the same 10-day period provided for the posting of the notice, the notice shall be recorded in the office of the county recorder of the county in which the site or some part thereof is located.

    3095 Original Contractor

    Original contractor means any contractor who has a direct contractual relationship with the owner.

    3096 Payment Bond

    Payment bond means a bond with good and sufficient sureties that is conditioned for the payment in full of the claims of all claimants and that also by its terms is made to inure to the benefit of all claimants so as to give these persons a right of action to recover upon this bond in any suit brought to foreclose the liens provided for in this title or in a separate suit brought on the bond. An owner, original contractor, or a subcontractor may be the principal upon any payment bond.

    3097 Preliminary Twenty-Day Notice (Private Work)

    Preliminary 20-day notice (private work) means a written notice from a claimant that is given prior to the recording of a mechanic’s lien, prior to the filing of a stop notice, and prior to asserting a claim against a payment bond, and is required to be given under the following circumstances:
    (a) Except one under direct contract with the owner or one performing actual labor for wages, or an express trust fund described in Section 3111, every person who furnishes labor, service, equipment, or material for which a lien or payment bond otherwise can be claimed under this title, or for which a notice to withhold can otherwise be given under this title, shall, as a necessary prerequisite to the validity of any claim of lien, payment bond, and of a notice to withhold, cause to be given to the owner or reputed owner, to the original contractor, or reputed contractor, and to the construction lender, if any, or to the reputed construction lender, if any, a written preliminary notice as prescribed by this section.
    (b) Except the contractor, or one performing actual labor for wages, or an express trust fund described in Section 3111, all persons who have a direct contract with the owner and who furnish labor, service, equipment, or material for which a lien or payment bond otherwise can be claimed under this title, or for which a notice to withhold can otherwise be given under this title, shall, as a necessary prerequisite to the validity of any claim of lien, claim on a payment bond, and of a notice to withhold, cause to be given to the construction lender, if any, or to the reputed construction lender, if any, a written preliminary notice as prescribed by this section.
    (c) The preliminary notice referred to in subdivisions (a) and (b) shall contain the following information:
    (1) A general description of the labor, service, equipment, or materials furnished, or to be furnished, and an estimate of the total price thereof.
    (2) The name and address of the person furnishing that labor, service, equipment, or materials.
    (3) The name of the person who contracted for purchase of that labor, service, equipment, or materials.
    (4) A description of the jobsite sufficient for identification.
    (5) The following statement in boldface type:

    NOTICE TO PROPERTY OWNER

    If bills are not paid in full for the labor, services, equipment, or materials furnished or to be furnished, a mechanic’s lien leading to the loss, through court foreclosure proceedings, of all or part of your property being so improved may be placed against the property even though you have paid your contractor in full. You may wish to protect yourself against this consequence by (1) requiring your contractor to furnish a signed release by the person or firm giving you this notice before making payment to your contractor or (2) any other method or device that is appropriate under the circumstances.

    (6) If the notice is given by a subcontractor who is required pursuant to a collective bargaining agreement to pay supplemental fringe benefits into an express trust fund described in Section 3111, the notice shall also contain the identity and address of the trust fund or funds.

    If an invoice for materials contains the information required by this section, a copy of the invoice, transmitted in the manner prescribed by this section shall be sufficient notice.

    A certificated architect, registered engineer, or licensed land surveyor who has furnished services for the design of the work of improvement and who gives a preliminary notice as provided in this section not later than 20 days after the work of improvement has commenced shall be deemed to have complied with subdivisions (a) and (b) with respect to architectural, engineering, or surveying services furnished, or to be furnished.

    (d) The preliminary notice referred to in subdivisions (a) and (b) shall be given not later than 20 days after the claimant has first furnished labor, service, equipment, or materials to the jobsite. If labor, service, equipment, or materials have been furnished to a jobsite by a claimant who did not give a preliminary notice, that claimant shall not be precluded from giving a preliminary notice at any time thereafter. The claimant shall, however, be entitled to record a lien, file a stop notice, and assert a claim against a payment bond only for labor, service, equipment, or material furnished within 20 days prior to the service of the preliminary notice, and at any time thereafter.
    (e) Any agreement made or entered into by an owner, whereby the owner agrees to waive the rights or privileges conferred upon the owner by this section shall be void and of no effect.
    (f) The notice required under this section may be served as follows:
    (1) If the person to be notified resides in this state, by delivering the notice personally, or by leaving it at his or her address of residence or place of business with some person in charge, or by first-class registered or certified mail, postage prepaid, addressed to the person to whom notice is to be given at his or her residence or place of business address or at the address shown by the building permit on file with the authority issuing a building permit for the work, or at an address recorded pursuant to subdivision (j).
    (2) If the person to be notified does not reside in this state, by any method enumerated in paragraph (1) of this subdivision. If the person cannot be served by any of these methods, then notice may be given by first-class certified or registered mail, addressed to the construction lender or to the original contractor.
    (3) When service is made by first-class certified or registered mail, service is complete at the time of the deposit of that registered or certified mail.
    (g) A person required by this section to give notice to the owner, to an original contractor, and to a person to whom a notice to withhold may be given, need give only one notice to the owner, to the original contractor, and to the person to whom a notice to withhold may be given with respect to all materials, service, labor, or equipment he or she furnishes for a work of improvement, that means the entire structure or scheme of improvements as a whole, unless the same is furnished under contracts with more than one subcontractor, in which event, the notice requirements shall be met with respect to materials, services, labor, or equipment furnished to each contractor. If a notice contains a general description required by subdivision (a) or (b) of the materials, services, labor, or equipment furnished to the date of notice, it is not defective because, after that date, the person giving notice furnishes materials, services, labor, or equipment not within the scope of this general description.
    (h) Where the contract price to be paid to any subcontractor on a particular work of improvement exceeds four hundred dollars ($400), the failure of that contractor, licensed under Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, to give the notice provided for in this section, constitutes grounds for disciplinary action by the Registrar of Contractors.

    Where the notice is required to contain the information set forth in paragraph (6) of subdivision (c), a failure to give the notice, including that information, that results in the filing of a lien, claim on a payment bond, or the delivery of a stop notice by the express trust fund to which the obligation is owing constitutes grounds for disciplinary action by the Registrar of Contractors against the subcontractor if the amount due the trust fund is not paid.
    (i) Every city, county, city and county, or other governmental authority issuing building permits shall, in its application form for a building permit, provide space and a designation for the applicant to enter the name, branch, designation, if any, and address of the construction lender and shall keep the information on file open for public inspection during the regular business hours of the authority.

    If there is no known construction lender, that fact shall be noted in the designated space. Any failure to indicate the name and address of the construction lender on the application, however, shall not relieve any person from the obligation to give to the construction lender the notice required by this section.

    (j) A mortgage, deed of trust, or other instrument securing a loan, any of the proceeds of which may be used for the purpose of constructing improvements on real property, shall bear the designation Construction Trust Deed prominently on its face and shall state all of the following: (1) the name and address of the lender, and the name and address of the owner of the real property described in the instrument, and (2) a legal description of the real property which secures the loan and, if known, the street address of the property. The failure to be so designated or to state any of the information
    required by this subdivision shall not affect the validity of the mortgage, deed of trust, or other instrument.

    Failure to provide this information on this instrument when recorded shall not relieve persons required to give preliminary notice under this section from that duty.

    The county recorder of the county in which the instrument is recorded shall indicate in the general index of the official records of the county that the instrument secures a construction loan.

    (k) Every contractor and subcontractor who is required pursuant to a collective bargaining agreement to pay supplementary fringe benefits into an express trust fund described in Section 3111, and who has failed to do so shall cause to be given to the trust fund and to the construction lender, if any, or to the reputed construction lender, if any, not later than the date the payment due to the trust fund became delinquent, a written notice containing all of the following:
    (1) The name of the owner and the contractor.
    (2) A description of the jobsite sufficient for identification.
    (3) The identity and address of the express trust fund.
    (4) The total number of straight time and overtime hours on each job, payment for which the contractor or subcontractor is delinquent to the express trust.
    (5) The amount then past due and owing.

    Failure to give this notice shall constitute grounds for disciplinary action by the Registrar of Contractors.
    (l) Every written contract entered into between a property owner and an original contractor shall provide space for the owner to enter his or her name and address of residence; and place of business if any. The original contractor shall make available the name and address of residence of the owner to any person seeking to serve the notice specified in subdivision (c).
    (m) Every written contract entered into between a property owner and an original contractor, except home improvement contracts and swimming pool contracts subject to Article 10 (commencing with Section 7150) of Chapter 9 of Division 3 of the Business and Professions Code, shall provide space for the owner to enter the name and address of the construction lender or lenders. The original contractor shall make available the name and address of the construction lender or lenders to any person seeking to serve the notice specified in subdivision (c). Every contract entered into between an original contractor and subcontractor, and between subcontractors, shall provide a space for the name and address of the owner, original contractor, and any construction lender.
    (n) Where one or more construction loans are obtained after commencement of construction, the property owner shall provide the name and address of the construction lender or lenders to each person who has given the property owner the notice specified in subdivision (c).
    (o) (1) Each person who has served a preliminary 20-day notice pursuant to subdivision (f) may file the preliminary 20-day notice with the county recorder in the county in which any portion of the property is located. A preliminary 20-day notice filed pursuant to this section shall contain all of the following:
    (A) The name and address of the person furnishing the labor, service, equipment, or materials.
    (B) The name of the person who contracted for purchase of the labor, service, equipment, or materials.
    (C) The common street address of the jobsite.
    (2) Upon the acceptance for recording of a notice of completion or notice of cessation the county recorder shall mail to those persons who have filed a preliminary 20-day notice, notification that a notice of completion or notice of cessation has been recorded on the property, and shall affix the date that the notice of completion or notice of cessation was recorded with the county recorder.
    (3) The failure of the county recorder to mail the notification to the person who filed a preliminary 20-day notice, or the failure of those persons to receive the notification or to receive complete notification, shall not affect the period within which a claim of lien is required to be recorded. However, the county recorder shall make a good faith effort to mail notification to those persons who have filed the preliminary 20-day notice under this section and to do so within five days after the recording of a notice of completion or notice of cessation.
    (4) This new function of the county recorder shall not become operative until July 1, 1988. The county recorder may cause to be destroyed all documents filed pursuant to this section, two years after the date of filing.
    (5) The preliminary 20-day notice which a person may file pursuant to this subdivision is for the limited purpose of facilitating the mailing of notice by the county recorder of recorded notices of completion and notices of cessation. The notice which is filed is not a recordable document and shall not be entered into those official records of the county which by law impart constructive notice. Notwithstanding any other provision of law, the index maintained by the recorder of filed preliminary 20-day notices shall be separate and distinct from those indexes maintained by the county recorder
    of those official records of the county which by law impart constructive notice. The filing of a preliminary 20-day notice with the county recorder does not give rise to any actual or constructive notice with respect to any party of the existence or contents of a filed preliminary 20-day notice nor to any duty of inquiry on the part of any party as to the existence or contents of that notice.
    (p) The change made to the statement described in subdivision (c) by Chapter 974 of the Statutes of 1994 shall have no effect upon the validity of any notice that otherwise meets the requirements of this section. The failure to provide, pursuant to Chapter 974 of the Statutes of 1994, a written preliminary notice to a subcontractor with whom the claimant has contracted shall not affect the validity of any preliminary notice provided pursuant to this section.

    3097.1 Proof of Service of Preliminary Notice
    Proof that the preliminary 20-day notice required by Section 3097 was served in accordance with subdivision (f) of Section 3097 shall be made as follows:
    (a) If served by mail, by the proof of service affidavit described in subdivision (c) of this section accompanied either by the return receipt of certified or registered mail, or by a photocopy of the record of delivery and receipt maintained by the post office, showing the date of delivery and to whom delivered, or, in the event of nondelivery, by the returned envelope itself.
    (b) If served by personally delivering the notice to the person to be notified, or by leaving it at his address or place of business with some person in charge, by the proof of service affidavit described in subdivision (c).
    (c) A proof of service affidavit is an affidavit of the person making the service, showing the time, place
    and manner of service and facts showing that such service was made in accordance with Section 3097. Such affidavit shall show the name and address of the person upon whom a copy of the preliminary 20-day notice was served, and, if appropriate, the title or capacity in which he was served.

    3098 Preliminary Twenty-Day Notice (Public Work)

    Preliminary 20-day notice (public work) means a written notice from a claimant that was given prior to the assertion of a claim against a payment bond, or the filing of a stop notice on public work, and is required to be given under the following circumstances:
    (a) In any case in which the law of this state affords a right to a person furnishing labor or materials for a public work who has not been paid therefor to assert a claim against a payment bond, or to file a stop notice with the public agency concerned, and thereby cause the withholding of payment from the contractor for the public work, any such person having no direct contractual relationship with the contractor, other than a person who performed actual labor for wages or an express trust fund described in Section 3111, may file the preliminary notice, but no payment shall be withheld from the contractor pursuant to that notice unless the person has caused written notice to be given to the contractor, and the public agency concerned, not later than 20 days after the claimant has first furnished labor, services, equipment, or materials to the jobsite, stating with substantial accuracy a general description of labor, service, equipment, or materials furnished or to be furnished, and the name of the party to whom the same was furnished. This notice shall be served by mailing the same by first-class mail, registered mail, or certified mail, postage prepaid, in an envelope addressed to the contractor at any place the contractor maintains an office or conducts business, or his or her residence, or by personal service. In case of any public works constructed by the Department of Public Works or the Department of General Services of the state, such notice shall be served by mailing in the same manner as above, addressed to the office of the disbursing officer of the department constructing the work, or by personal service upon the officer. When service is by registered or certified mail, service is complete at the time of the deposit of the registered or certified mail.
    (b) Where the contract price to be paid to any subcontractor on a particular work of improvement exceeds four hundred dollars ($400), the failure of that contractor, licensed under Chapter 9, (commencing with Section 7000) of Division 3 of the Business and Professions Code, to give the notice provided for in this section, constitutes grounds for disciplinary action by the Registrar of Contractors.
    (c) The notice requirements of this section shall not apply to an express trust fund described in Section 3111.
    (d) If labor, service, equipment, or materials have been furnished to a jobsite by a claimant who did not give a preliminary notice pursuant to subdivision (a), that claimant shall not be precluded from giving a preliminary notice at any time thereafter. The claimant shall, however, be entitled to assert a claim against a payment bond and file a stop notice only for labor, service, equipment, or material furnished within 20 days prior to the service of the preliminary notice, and at any time thereafter.
    (e) The failure to provide, pursuant to Chapter 974 of the Statutes of 1994, a written preliminary notice to a subcontractor with whom the claimant has contracted shall not affect the validity of any preliminary notice provided pursuant to this section.

    3099 Public Entity

    Public entity means the state, Regents of the University of California, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the state.

    3100 Public Work

    Public work means any work of improvement contracted for by a public entity.

    3101 Site

    Site means the real property upon which the work of improvement is being constructed or performed.

    3102 Site Improvement

    Site improvement means the demolishing or removing of improvements, trees, or other vegetation located thereon, or drilling test holes or the grading, filling, or otherwise improving of any lot or tract of land or the street, highway, or sidewalk in front of or adjoining any lot or tract of land, or constructing or installing sewers or other public utilities therein, or constructing any areas, vaults, cellars, or rooms under said sidewalks or making any improvements thereon.

    3103 Elements of Stop Notice; Service

    Stop notice means a written notice, signed and verified by the claimant or his or her agent, stating in general terms all of the following:
    (a) The kind of labor, services, equipment, or materials furnished or agreed to be furnished by such claimant.
    (b) The name of the person to or for whom the same was done or furnished.
    (c) The amount in value, as near as may be, of that already done or furnished and of the whole agreed to be done or furnished.
    (d) The name and address of the claimant.

    The notice, in the case of any work of improvement other than a public work, shall be delivered to the owner personally or left at his or her residence or place of business with some person in charge, or delivered to his or her architect, if any, if the notice is served upon a construction lender, holding construction funds and maintaining branch offices, it shall not be effective as against the construction lender unless given to or served upon the manager or other responsible officer or person at the office or branch thereof administering or holding the construction funds. The notice, in the case of any public work for the state, shall be filed with the director of the department which let the contract and, in the case of any other public work, shall be filed in the office of the controller, auditor, or other public disbursing officer whose duty it is to make payments under the provisions of the contract, or with the commissioners, managers, trustees, officers, board of supervisors, board of trustees, common council, or other body by whom the contract was awarded. No stop notice shall be invalid by reason of any defect in form if it is sufficient to substantially inform the owner of the information required.

    Any stop notice may be served by registered or certified mail with the same effect as by personal service.

    3104 Subcontractor

    Subcontractor means any contractor who has no direct contractual relationship with the owner.

    3105 Subdivision

    Subdivision means a work of improvement consisting of two or more separate residential units or two or more buildings, mining claims, or other improvements owned or reputed to be owned by the same person or on which the claimant has been employed by the same person. A separate residential unit means one residential structure, together with any garage or other improvements appurtenant thereto.

    3106 Work of Improvement

    Work of improvement includes but is not restricted to the construction, alteration, addition to, or repair, in whole or in part, of any building, wharf, bridge, ditch, flume, aqueduct, well, tunnel, fence, machinery, railroad, or road, the seeding, sodding, or planting of any lot or tract of land for landscaping purposes, the filling, leveling, or grading of any lot or tract of land, the demolition of buildings, and the removal of buildings. Except as otherwise provided in this title, work of improvement means the entire structure or scheme of improvement as a whole.

    CHAPTER 2 MECHANICS LIENS

    ARTICLE 1 APPLICATION OF CHAPTER

    3109 Application

    This chapter does not apply to any public work.

    ARTICLE 2 WHO IS ENTITLED TO LIEN

    3110 Persons Who Have Lien Rights

    Mechanics, materialmen, contractors, subcontractors, lessors of equipment, artisans, architects, registered engineers, licensed land surveyors, machinists, builders, teamsters, and draymen, and all persons and laborers of every class performing labor upon or bestowing skill or other necessary services on, or furnishing materials or leasing equipment to be used or consumed in or furnishing appliances, teams, or power contributing to a work of improvement shall have a lien upon the property upon which they have bestowed labor or furnished materials or appliances or leased equipment for the value of such labor done or materials furnished and for the value of the use of such appliances, equipment, teams, or power whether done or furnished at the instance of the owner or of any person acting by his authority or under him as contractor or otherwise. For the purposes of this chapter, every contractor, subcontractor, sub-subcontractor, architect, builder, or other person having charge of a work of improvement or portion thereof shall be held to be the agent of the owner.

    3111 Fringe Benefit Trusts

    For the purposes of this chapter, an express trust fund established pursuant to a collective bargaining agreement to which payments are required to be made on account of fringe benefits supplemental to a wage agreement for the benefit of a claimant on particular real property shall have a lien on such property in the amount of the supplemental fringe benefit payments owing to it pursuant to the collective bargaining agreement.

    3111.5 Written Statement from Fringe Benefit Trust to Subcontractor

    (a) Every trust fund as described in Section 3111 shall, upon written demand by a subcontractor, give to the subcontractor in person, or by first-class mail, addressed to the address of the subcontractor as stated on the demand, within five working days of the receipt of the demand, a written statement which shall contain the following information:
    (1) The name and address of the subcontractor.
    (2) A list of those months in the 12 months preceding the demand, commencing with the last month of record in possession of the trust fund, for which the subcontractor has paid supplemental fringe benefit payments.
    (3) The facts, if such be the case, that the trust fund has no information or belief that the subcontractor is further indebted to the trust fund for those months.
    (b) The statement of the trust fund provided for in subdivision
    (a) above shall be, without prejudice to the trust fund, sufficient to satisfy any creditors of the subcontractor to whom it is given that the subcontractor is not indebted to the trust fund for the months so stated, without further release from the trust fund.

    3112 Persons Who Furnish Site Improvements Have Lien Rights

    Any claimant who, at the instance or request of the owner (or any other person acting by his authority or under him, as contractor or otherwise) of any lot or tract of land, has made any site improvement has a lien upon such lot or tract of land for work done or materials furnished.

    ARTICLE 3 CONDITIONS TO ENFORCING A LIEN

    3114 Preliminary Twenty-Day Notice

    A claimant shall be entitled to enforce a lien only if he has given the preliminary 20-day notice (private work) in accordance with the provisions of Section 3097, if required by that section, and has made proof of service in accordance with the provisions of Section 3097.1.

    3115 Original Contractor: Sixty Days After Notice of Completion

    Each original contractor, in order to enforce a lien, must record his claim of lien after he completes his contract and before the expiration of (a) 90 days after the completion of the work of improvement as defined in Section 3106 if no notice of completion or notice of cessation has been recorded, or (b) 60 days after recordation of a notice of completion or notice of cessation.

    3116 Claimant Other Than Original Contractor: Thirty Days After Notice of Completion

    Each claimant other than an original contractor, in order to enforce a lien, must record his claim of lien after he has ceased furnishing labor, services, equipment, or materials, and before the expiration of (a) 90 days after completion of the work of improvement if no notice of completion or cessation has been recorded, or (b) 30 days after recordation of a notice of completion or notice of cessation.

    3117 Completion of Separate Original Contract

    Where the work of improvement is not made pursuant to one original contract for the work of improvement but is made in whole or in part pursuant to two or more original contracts, each covering a particular portion of the work of improvement, the owner may, within 10 days after completion of any such contract for a particular portion of the work of improvement, record a notice of completion. If such notice of completion be recorded, notwithstanding the provisions of Sections 3115 and 3116, the original contractor under the contract covered by such notice must, within 60 days after recording of such notice, and any claimant under such contract other than the original contractor must, within 30 days after the recording of such notice of completion, record his claim of lien. If such notice is not recorded, then the period for recording claims of lien shall be as provided for in Sections 3115 and 3116.

    3118 Willful Inclusion of Items not Furnished; Forfeiture

    Any person who shall willfully include in his claim of lien labor, services, equipment, or materials not furnished for the property described in such claim shall thereby forfeit his lien.

    ARTICLE 4 AMOUNT OF LIEN

    3123 Amount of Lien; Charge

    (a) The liens provided for in this chapter shall be direct liens, and shall be for the reasonable value of the labor, services, equipment, or materials furnished or for the price agreed upon by the claimant and the person with whom he or she contracted, whichever is less. The lien shall not be limited in amount by the price stated in the contract as defined in Section 3088, except as provided in Sections 3235 and 3236 and in subdivision (c) of this section.
    (b) This section does not preclude the claimant from including in the lien any amount due for labor, services, equipment, or materials furnished based on a written modification of the contract or as a result of the rescission, abandonment, or breach of the contract. However, in the event of rescission, abandonment, or breach of the contract, the amount of the lien may not exceed the reasonable value of the labor, services, equipment, and materials furnished by the claimant.
    (c) The owner shall notify the prime contractor and construction lenders of any changes in the contract if the change has the effect of increasing the price stated in the contract by 5 percent or more.

    3124 Services and Materials not Included in Original Contract

    In any case where the claimant was employed by a contractor or subcontractor, his claim of lien shall not extend to any labor, services, equipment, or materials not included in the contract between the owner and original contractor or any modification thereof, if the claimant had actual knowledge or constructive notice of the contract as defined in Section 3088 or any such modification before he furnished such labor, service, equipment, or materials. The filing of a contract for a work of improvement or of a modification of such contract with the county recorder of the county where the property is situated, before the commencement of work, shall be equivalent to the giving of actual notice of the provisions thereof by the owner to all persons performing work or furnishing materials thereunder.

    ARTICLE 5 PROPERTY SUBJECT TO LIEN

    3128 Liens Attach to Land Including Space for Convenient Use and Occupation

    The liens provided for in this chapter shall attach to the work of improvement and the land on which it is situated together with a convenient space about the same or so much as may be required for the convenient use and occupation thereof, if at the commencement of the work or of the furnishing of the materials for the same, the land belonged to the person who caused such work of improvement to be constructed, but if such person owned less than a fee simple estate in such land then only his interest therein is subject to such lien, except as provided in Section 3129.

    3129 Notice of Nonresponsibility Protects Against Liens Suffered by Tenants

    Every work of improvement constructed upon any land and all work or labor performed or materials furnished in connection therewith with the knowledge of the owner or of any person having or claiming any estate therein shall be held to have been constructed, performed, or furnished at the instance of such owner or person having or claiming any estate therein and such interest shall be subject to any lien recorded under this chapter unless such owner or person having or claiming any estate therein shall give a notice of nonresponsibility pursuant to Section 3094.

    3130 Lien Against Two or More Buildings should Designate Amount Due on Each

    In every case in which one claim is filed against two or more buildings or other works of improvement owned or reputed to be owned by the same person or on which the claimant has been employed by the same person to do his work or furnish his materials, whether such works of improvement are owned by one or more owners, the person filing such claim must at the same time designate the amount due to him on each of such works of improvement; otherwise the lien of such claim is postponed to other liens. If such claimant has been employed to furnish labor or materials under a contract providing for a lump sum to be paid to him for his work or materials on such works of improvement as a whole, and such contract does not segregate the amount due for the work done and materials furnished on such works of improvement separately, then such claimant, for the purposes of this section, may estimate an equitable distribution of the sum due him over all of such works of improvement based upon the proportionate amount of work done or materials furnished upon such respective works of improvement. The lien of such claimant does not extend beyond the amount designated as against other creditors having liens, by judgment, mortgage, or otherwise, upon either such works of improvement or upon the land upon which the same are situated.

    For all purposes of this section, if there is a single structure on more than one parcel of land owned by one or more different owners, it shall not be the duty of the claimant to segregate the proportion of material or labor entering into the structure on any one of such parcels; but upon the trial thereof the court may, when it deems it equitable so to do, distribute the lien equitably as between the several parcels involved.

    3131 Residential Units Considered Separate Works of Improvement

    If a work of improvement consists in the construction of two or more separate residential units, each such unit shall be considered a separate work of improvement, and the time for filing claims of lien against each such residential unit shall commence to run upon the completion of each such residential unit. A separate residential unit means one residential structure, including a residential structure containing multiple condominium units, together with any common area, or any garage or other improvements appurtenant thereto. The provisions of this qualification shall not impair any rights conferred under the provisions of Section 3112 and 3130. Materials delivered to or upon any portion of such entire work of improvement or furnished to be used in such entire work of improvement and ultimately used or consumed in one of such separate residential units shall, for all the purposes of this title, be deemed to have been furnished to be used or consumed in the separate residential unit in which the same shall have been actually used or consumed; provided, however, that if the claimant is unable to segregate the amounts used on or consumed in such separate units, he shall be entitled to all the benefits of Section 3130.

    For purposes of this section and notwithstanding any other provision of this chapter, the completion of a residential structure containing multiple condominium units, together with any common area, or any garage or other improvements appurtenant thereto, and only such residential structure, shall not operate in any manner to impair the rights of a lien claimant entitled to a lien pursuant to Section 3111, if the claim of lien is recorded in the manner prescribed by this chapter within 120 days of the completion of the residential structure.

    ARTICLE 6 PRIORITIES

    3134 Claim of Lien Takes Priority from Commencement of Work of Improvement

    The liens provided for in this chapter (other than with respect to site improvements) are, subject to the exception in Section 3138, preferred to any lien, mortgage, deed of trust, or other encumbrance upon the work of improvement and the site, which attaches subsequent to the commencement of the work of improvement, and also to any lien, mortgage, deed of trust, or other encumbrance of which the claimant had no notice and which was unrecorded at the time of commencement of the work of improvement.

    3135 Separate Contract for Site Improvements (Offsite Improvements)

    If any site improvement is provided for in a separate contract from any contract with respect to the erection of residential units or other structures, then the site improvement shall be considered a separate work of improvement and the commencement thereof shall not constitute a commencement of the work of improvement consisting of the erection of any residential unit or other structure.

    3136 Optional Advances by Construction Lender

    A mortgage or deed of trust which would be prior to the liens provided for in this chapter to the extent of obligatory advances made thereunder in accordance with the commitment of the lender shall also be prior to the liens provided for in this chapter as to any other advances, secured by such mortgage or deed of trust, which are used in payment of any claim of lien which is recorded at the date or dates of such other advances and thereafter in payment of costs of the work of improvement. Such priority shall not, however, exceed the original obligatory commitment of the lender as shown in such mortgage or deed of trust.

    3137 Priority of Liens for Site Improvements over Deed of Trust Securing Construction Loan

    The liens provided for in Section 3112 with respect to site improvements are, subject to the exception in Section 3139, preferred to (a) any mortgage, deed of trust, or other encumbrance which attaches subsequent to the commencement of the site improvement work; and (b) any mortgage, deed of trust, or other encumbrance of which the claimant had no notice and which was unrecorded at the time of the commencement of such site improvement; and (c) any mortgage, deed of trust, or other encumbrance recorded before the commencement of the site improvement work which was given for the sole or primary purpose of financing such site improvements, unless the loan proceeds are, in good faith, placed in the control of the lender under a binding agreement with the borrower to the effect that such proceeds are to be applied to the payment of claims of claimants and that no portion of such proceeds will be paid to the borrower in the absence of satisfactory evidence that all such claims have been paid or that the time for recording claims of liens has expired and no such claims have been recorded.

    3138 Payment Bond to Secure Priority of Trust Deed

    If the holder of any mortgage or deed of trust which is subordinate pursuant to Section 3134 to any lien, shall procure a payment bond as defined in Section 3096 in an amount not less than 75 percent of the principal amount of such mortgage or deed of trust, which bond refers to such mortgage or deed of trust, and shall record such payment bond in the office of the county recorder in the county where the site is located, then such mortgage or deed of trust shall be preferred to all liens for labor, services, equipment, or materials furnished after such recording.

    3139 Payment Bond to Secure Priority of Trust Deed over Liens for Site Improvements

    If the owner of the land or holder of any mortgage or deed of trust, which is subordinate pursuant to Section 3137 to any lien, shall procure a payment bond in an amount not less than 50 percent of the principal amount of such mortgage or deed of trust and shall record such payment bond in the office of the county recorder in the county where the site is located before completion of the work of improvement, then such mortgage or deed of trust shall be preferred to all such liens provided in Section 3112.

    3140 Amount of Lien After Deducting Credits and Offsets

    Any original contractor or subcontractor shall be entitled to recover, upon a claim of lien recorded by him, only such amount as may be due him according to the terms of his contract after deducting all claims of other claimants for labor, services, equipment, or materials furnished and embraced within his contract.

    ARTICLE 7 ENFORCEMENT OF LIEN

    3143 Release Bond

    If the owner of property, or the owner of any interest therein, sought to be charged with a claim of lien, or any original contractor or subcontractor disputes the correctness or validity of any claim of lien, he may record in the office of the county recorder in which such claim of lien was recorded, either before or after the commencement of an action to enforce such claim of lien, a bond executed by a corporation authorized to issue surety bonds in the State of California, in a penal sum equal to 11/2 times the amount of the claim or 11/2 times the amount allocated in the claim of lien to the parcel or parcels of real property sought to be released, which bond shall be conditioned for the payment of any sum which the claimant may recover on the claim together with his cost of suit in the action, if he recovers therein. Upon the recording of such bond the real property described in such bond is released from the lien and from any action brought to foreclose such lien. The principal upon such bond may be either the owner of the property or the owner of any interest therein, or any original contractor, subcontractor, or sub-subcontractor affected by such claim of lien.

    3144 Time for Filing Foreclosure Suit

    (a) No lien provided for in this chapter binds any property for a longer period of time than 90 days after the recording of the claim of lien, unless within that time an action to foreclose the lien is commenced in a proper court, except that, if credit is given and notice of the fact and terms of such credit is recorded in the office of the county recorder subsequent to the recording of such claim of lien and prior to the expiration of such 90-day period, then such lien continues in force until 90 days after the expiration of such credit, but in no case longer than one year from the time of completion of the work of improvement.

    (b) If the claimant fails to commence an action to foreclose the lien within the time limitation provided in this section, the lien automatically shall be null and void and of no further force and effect.

    3144.5 Notice of Recording Release Bond; Statute of Limitations on Bond

    Any person who obtains a lien release bond which is recorded pursuant to Section 3143 shall give notice of the recording to the lienholder by mailing a copy of the bond to the lienholder at the address appearing on the lien. Service of the notice shall be by certified or registered mail, return receipt requested. Failure to give the notice provided by this section shall not affect the validity of the lien release bond, but the statute of limitations on any action on the bond shall be tolled until the notice is given. Any action on the lien release bond shall be commenced by the claimant within six months of the recording of the lien release bond.

    3145 Notice of Agreement of Credit or Extension of the Lien; Recording

    As against any purchaser or encumbrancer for value and in good faith whose rights are acquired subsequent to the expiration of the 90-day period following the recording of the claim of lien, no giving of credit or extension of the lien or of the time to enforce the same shall be effective unless evidenced by a notice or agreement recorded in the office of the county recorder prior to the acquisition of the rights of such purchaser or encumbrancer.

    3146 Notice of Pendency of Action

    After the filing of the complaint in the proper court, the plaintiff may record in the office of the county recorder of the county, or of the several counties in which the property is situated, a notice of the pendency of such proceedings, as provided in Section 409 of the Code of Civil Procedure. Only from the time of recording such notice shall a purchaser or encumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of the action, and in that event only if its pendency against parties designated by their real names.

    3147 Discretionary Two-Year Dismissal

    If the action to foreclose the lien is not brought to trial within two years after the commencement thereof, the court may in its discretion dismiss the same for want of prosecution.

    3148 Effect of Dismissal or Judgment

    In all cases the dismissal of an action to foreclose the lien (unless it is expressly stated that the same is without prejudice) or a judgment rendered therein that no lien exists shall be equivalent to the cancellation and removal from the record of such lien.

    3149 Joinder and Consolidation of Foreclosure Actions

    Any number of persons claiming liens on the same property may join in the same action to foreclose their liens and when separate actions are commenced the court may consolidate them.

    3150 Recording Costs

    In addition to any other costs allowed by law, the court in an action to foreclose a lien must also allow as costs the money paid for verifying and recording the lien, such costs to be allowed each claimant whose lien is established, whether he be plaintiff or defendant.

    3151 Deficiency Judgment

    Whenever on the sale of the property subject to any liens provided for in this chapter, under a judgment of foreclosure of such lien, there is a deficiency of proceeds, judgment for the deficiency may be entered against any party personally liable therefor in like manner and with like effect as in an action for the foreclosure of a mortgage.

    3152 Lien does not Affect the Right to Maintain a Personal Action or Issuance of a Writ of Attachment

    Nothing contained in this title affects the right of a claimant to maintain a personal action to recover a debt against the person liable therefor either in a separate action or in the action to foreclose the lien, nor any right the claimant may have to the issuance of a writ of attachment or execution or to enforce a judgment by other means. In an application for a writ of attachment, the claimant shall refer to this section. A lien held by the claimant under this chapter does not affect the right to procure a writ of attachment. The judgment, if any, obtained by the claimant in a personal action, or personal judgment obtained in a mechanic’s lien action, does not impair or merge a lien held by the claimant under this chapter, but any money collected on the judgment shall be credited on the amount of the lien.

    3153 Contractor Shall Defend Owner Against Mechanics Lien Actions; Liability of Performance Bond Surety

    In all cases where a claim of lien is recorded for labor, services, equipment, or materials furnished to any contractor, he shall defend any action brought thereon at his own expense, and during the pendency of such action the owner may withhold from the original contractor the amount of money for which the claim of lien is recorded. In case of judgment in such action against the owner or his property upon the lien, the owner shall be entitled to deduct from any amount then or thereafter due from him to the original contractor the amount of such judgment and costs. If the amount of such judgment and costs exceeds the amount due from him to the original contractor, or if he has settled with the original contractor in full, he shall be entitled to recover back from the original contractor, or the sureties on any bond given by him for the faithful performance of his contract, any amount of such judgment and costs in excess of the contract price, and for which the original contractor was originally the party liable.

    3154 Owner’s Petition for Decree to Release Property from Lien

    (a) At any time after the expiration of the time period specified by Section 3144 with regard to the period during which property is bound by a lien after recordation of a claim of lien, where no action has been brought to enforce such lien, the owner of the property or the owner of any interest therein may petition the proper court for a decree to release the property from the lien.
    (b) The petition shall be verified and shall allege all of the following:
    (1) The date of recordation of the claim of lien.
    (2) The legal description of the property affected by such claim of lien.
    (3) That no action has been filed to foreclose the lien, or that no extension of credit has been recorded, and that the time period during which suit can be brought to foreclose the lien has expired.
    (4) That the lien claimant is unable or unwilling to execute a release of the lien or cannot with reasonable diligence be found.
    (5) That the owner of the property or interest in the property has not filed for relief under any law governing bankrupts, and that there exists no other restraint to prevent the lien claimant from filing to foreclose his or her lien. A certified copy of the claim of lien shall be attached to the petition. The petition shall be deemed controverted by the lien claimant.
    (c) Upon the filing of the petition, and before any further proceedings are had, the clerk, or if there is no clerk, the judge shall set a date for the hearing not more that 30 days following the filing of the petition. The court may continue the hearing beyond the 30-day period, but good cause shall be shown for any continuance.
    (d) A copy of the petition and the notice setting the date for the hearing shall be served upon the lien claimant at least 10 days prior to the date set for hearing, in the manner in which a summons is required to be served, or by certified or registered mail, postage prepaid, return receipt requested, addressed to the lien claimant at the claimant’s address as shown:

    (1) on the preliminary 20-day notice served by the claimant pursuant to Section 3097,
    (2) in the records of the registrar of contractors,
    (3) on the contract on which the lien is based, or
    (4) on the claim of lien itself. When service is made by mail as provided in this section, service is complete on the fifth day following the day of the deposit of such mail. No decree shall issue in favor of the petitioner unless the petitioner proves that service of the petition and the order fixing the date for hearing was made in compliance with this subdivision. The issue of compliance with this subdivision
    shall be deemed controverted by the lien claimant.
    (e) In the event judgment is rendered in favor of the petitioner, the decree shall indicate all of the following:
    (1) The date the lien was recorded.
    (2) The county and city, if any, in which the lien was recorded.
    (3) The book and page of the place in the official records where the lien is recorded.
    (4) The legal description of the property affected. Upon the recordation of a certified copy of the decree, the property described in the decree shall be released from the lien.
    (f) The prevailing party shall be entitled to attorneys’ fees not to exceed one thousand dollars ($1,000).
    (g) Nothing in this section shall be construed to bar any other cause of action or claim for relief by the owner of the property or an interest in the property, nor shall a decree canceling a claimant’s lien bar the lien claimant from bringing any other cause of action or claim for relief, other than an action foreclosing such lien. However, no other action or claim shall be joined with the claim for relief established by this section.
    (h) The provisions of Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure shall not apply to causes commenced pursuant to this section.

    CHAPTER 3 STOP NOTICES FOR PRIVATE WORKS OF IMPROVEMENT

    ARTICLE 1 APPLICATION OF CHAPTER

    3156 Chapter does not Apply to Public Works

    The provisions of this chapter do not apply to any public work.

    ARTICLE 2 WHO IS ENTITLED TO SERVE A STOP NOTICE AND BONDED STOP NOTICE

    3158 Claimants Other Than Original Contractor; Written Demand for Stop Notice; Forfeiture of Mechanics Lien Right

    Any of the persons named in Sections 3110, 3111, and 3112, other than the original contractor, may give to the owner a stop notice. Any person who shall fail to serve such a stop notice after a written demand therefor from the owner shall forfeit his right to a mechanic’s lien.

    3159 Stop Notice to Construction Lender; Payment Bond; Net Amount of Stop Notice
    (a) Any of the persons named in Sections 3110, 3111, and 3112 may, prior to the expiration of the period within which his or her claim of lien must be recorded under Chapter 2 (commencing with Section 3109), give to a construction lender a stop notice or a bonded stop notice. The construction lender shall be subject to the following:
    (1) The construction lender shall withhold funds pursuant to a bonded stop notice filed by an original contractor, regardless of whether a payment bond has previously been recorded in the office of the county recorder where the site is located in accordance with Section 3235.
    (2) The construction lender shall withhold funds pursuant to a bonded stop notice filed by any other person named in Sections 3110, 3111, and 3112, unless a payment bond has previously been recorded in the office of the county recorder where the site is located in accordance with Section 3235. If a payment bond has previously been recorded, the construction lender may, at its option, withhold funds pursuant to the bonded stop notice or stop notice, or may elect not to withhold pursuant to the bonded stop notice or stop notice given by anyone other than an original contractor.
    (3) If, when giving the construction lender the stop notice or bonded stop notice, the claimant makes a written request for notice of the election, accompanied by a preaddressed, stamped envelope, the construction lender shall furnish the claimant a copy of the bond within 30 days after making the election. A lender shall not be liable for a failure to furnish a copy of the bond if the failure was not intentional and resulted from a bona fide error, if the lender maintains reasonable procedures to avoid such an error, and if the error was corrected not later than 20 days from the date on which the violation was discovered. The payment bond may be recorded at any time prior to the serving of the first stop notice. The notice may only be given for materials, equipment, or services furnished, or labor performed.
    (b) In the case of a stop notice or bonded stop notice filed by the original contractor or by a subcontractor, the original contractor or subcontractor shall only be entitled to recover on his or her stop notice or bonded stop notice the net amount due the original contractor or subcontractor after deducting the stop notice claims of all subcontractors or material suppliers who have filed bonded stop notices on account of work done on behalf of the original contractor or the subcontractor.
    (c) In no event shall the construction lender be required to withhold, pursuant to a bonded stop notice, more than the net amount identified in subdivision (b). Notwithstanding any other provision, no construction lender shall have any liability for the failure to withhold more than this net amount upon receipt of a bonded stop notice.

    ARTICLE 3 CONDITIONS TO VALID SERVICE OF STOP NOTICE AND BONDED STOP NOTICE

    3160 Preliminary Twenty-Day Notice;

    Time for Service of Stop Notice Service of a stop notice or a bonded stop notice shall be effective only if the claimant:
    (a) Gave the preliminary 20-day notice (private work) in accordance with the provisions of Section 3097 if required by that section; and
    (b) Served his stop notice as defined in Section 3103 or his bonded stop notice as defined in Section 3083 prior to the expiration of the period within which his claim of lien must be recorded under Section 3115, 3116, or 3117.

    ARTICLE 4 EFFECT OF STOP NOTICE AND BONDED STOP NOTICE

    3161 Duty of Owner to Withhold; Payment Bond It shall be the duty of the owner upon receipt of a stop notice pursuant to Section 3158 to withhold from the original contractor or from any person acting under his or her authority and to whom labor or materials, or both, have been furnished, or agreed to be furnished, sufficient money due or to become due to such contractor to answer such claim and any claim of lien that may be recorded therefor, unless a payment bond has been recorded pursuant to the provisions of Section 3235, in which case the owner may, but is not obligated to, withhold such money.

    If the owner elects not to withhold pursuant to a stop notice by reason of a payment bond having been previously recorded, then the owner shall, within 30 days after receipt of the stop notice, give a written notice to the claimant at the address shown in the stop notice that the bond has been recorded and furnish to the claimant a copy of that bond.

    3162 Duty of Construction Lender to Withhold; Payment Bond

    (a) Upon receipt of a stop notice pursuant to Section 3159, the construction lender may, and upon receipt of a bonded stop notice the construction lender shall, except as provided in this section, withhold from the borrower or other person to whom it or the owner may be obligated to make payments or advancement out of the construction fund, sufficient money to answer the claim and any claim of lien that may be recorded therefor. The construction lender shall be subject to the following:
    (1) The construction lender shall withhold funds pursuant to a bonded stop notice filed by an original contractor, regardless of whether a payment bond has previously been recorded in the office of the county recorder where the site is located in accordance with Section 3235.
    (2) The construction lender shall withhold funds pursuant to a bonded stop notice filed by any other person named in Sections 3110, 3111, and 3112, unless a payment bond has previously been recorded in the office of the county recorder where the site is located in accordance with Section 3235. If a payment bond has previously been recorded, the construction lender may, at its option, withhold funds pursuant to the bonded stop notice or stop notice, or may elect not to withhold pursuant to the bonded stop notice or stop notice given by anyone other than an original contractor.
    (3) If, when giving the construction lender the stop notice or bonded stop notice, the claimant makes a written request for notice of the election, accompanied by a preaddressed, stamped envelope, the construction lender shall furnish the claimant a copy of the bond within 30 days after making the election. A lender shall not be liable for a failure to furnish a copy of the bond if the failure was not intentional and resulted from a bona fide error, if the lender maintains reasonable procedures to avoid such an error, and if the error was corrected not later than 20 days from the date on which the violation was discovered. The payment bond may be recorded at any time prior to the serving of the first stop notice.
    (b) In the case of a stop notice or bonded stop notice filed by the original contractor or by a subcontractor, the original contractor or subcontractor shall only be entitled to recover on his or her stop notice or bonded stop notice the net amount due the original contractor or subcontractor after deducting the stop notice claims of all subcontractors or material suppliers who have filed bonded stop notices on account of work done on behalf of the original contractor or the subcontractor.
    (c) In no event shall the construction lender be required to withhold, pursuant to a bonded stop notice, more than the net amount identified in subdivision (b). Notwithstanding any other provision, no construction lender shall have any liability for the failure to withhold more than this net amount upon receipt of a bonded stop notice.

    3163 Objection to Sufficiency of Sureties on Stop Notice Bond

    If the construction lender objects to the sufficiency of the sureties on the bond accompanying the bonded stop notice, he must give notice in writing of such objection to the claimant within 20 days after the service of the bonded stop notice. The claimant may within 10 days after the receipt of such written objection substitute for the initial bond a bond in like amount executed by a corporate surety licensed to write such bonds in the State of California. If the claimant fails to do so, the construction lender may disregard the bonded stop notice and release all funds withheld in response thereto.

    ARTICLE 5 PRIORITIES

    3166 Stop Notice Takes Priority Over Assignment of Construction Loan Funds

    No assignment by the owner or contractor of construction loan funds, whether made before or after a stop notice or bonded stop notice is given to a construction lender, shall be held to take priority over the stop notice or bonded stop notice, and such assignment shall have no effect insofar as the rights of claimants who give the stop notice or bonded stop notice are concerned.

    3167 Pro Rata Distribution

    (a) If the money withheld or required to be withheld pursuant to any bonded stop notice shall be insufficient to pay in full the valid claims of all persons by whom such notices were given, the same shall be distributed among such persons in the same ratio that their respective claims bear to the aggregate of all such valid claims. Such pro rata distribution shall be made among the persons entitled to share therein without regard to the order of time in which their respective notices may have been given or their respective actions, if any, commenced.
    (b) If the money withheld or required to be withheld pursuant to any stop notice shall be insufficient to pay in full the valid claims of all persons by whom such notices were given, the same shall be distributed among such persons in the same ratio that their respective claims bear to the aggregate of all such valid claims. Such pro rata distribution shall be made among the persons entitled to share therein without regard to the order of time in which their respective notices may have been given or their respective actions, if any, commenced.

    3168 Willfully False Stop Notice; Forfeiture

    Any person who willfully gives a false stop notice or bonded stop notice or who willfully includes in his notice labor, services, equipment, or materials not furnished for the property described in such notice forfeits all right to participate in the pro rata distribution of such money and all right to any lien under Chapter 2 (commencing with Section 3109).

    ARTICLE 6 RELEASE OF STOP NOTICE OR BONDED STOP NOTICE

    3171 Release Bond

    If the owner, construction lender or any original contractor or subcontractor disputes the correctness or validity of any stop notice or bonded stop notice, he may file with the person upon whom such notice was served a bond executed by good and sufficient sureties in a penal sum equal to 11/4 times the amount stated in such notice, conditioned for the payment of any sum not exceeding the penal obligation of the bond which the claimant may recover on the claim, together with his costs of suit in the action, if he recovers therein. Upon the filing of such bond, the funds withheld to respond to the stop notice or bonded stop notice shall forthwith be released.

    ARTICLE 7 ENFORCEMENT OF RIGHTS ARISING FROM STOP NOTICE AND BONDED STOP NOTICE

    3172 Action to Enforce Stop Notice Claim: Commencement; Five-Day Notice of Commencement

    An action against the owner or construction lender to enforce payment of the claim stated in the stop notice or bonded stop notice may be commenced at any time after 10 days from the date of the service of the stop notice upon either the owner or construction lender and shall be commenced not later than 90 days following the expiration of the period within which claims of lien must be recorded as prescribed in Chapter 2 (commencing with Section 3109). No such action shall be brought to trial or judgment entered until the expiration of said 90-day period. No money shall be withheld by reason of any such notice longer than the expiration of such 90-day period unless such action is commenced. If no such action is commenced, such notice shall cease to be effective and such moneys shall be paid or delivered to the contractor or other person to whom they are due. Notice of commencement of any such action shall be given within five days after commencement thereof to the same persons and in the same manner as provided for service of a stop notice or bonded stop notice.

    3173 Discretionary Two-Year Dismissal

    In case such action is commenced as provided in Section 3172 but is not brought to trial within two years after the commencement thereof, the court may in its discretion dismiss the action for want of prosecution.

    3174 Effect of Dismissal or Judgment

    Upon the dismissal of an action to enforce a stop notice or bonded stop notice, unless expressly stated to be without prejudice, or upon a judgment rendered therein against the claimant, the stop notice or bonded stop notice shall cease to be effective and the moneys withheld shall be paid or delivered to the person to whom they are due.

    3175 Joinder and Consolidation; Impleader

    Any number of persons who have given stop notices or bonded stop notices may join in the same action and when separate actions are commenced the court first acquiring jurisdiction may consolidate them. Upon the motion of the owner or construction lender the court shall require all claimants to the moneys withheld pursuant to stop notices and bonded stop notices to be impleaded in one action, to the end that the respective rights of all parties may be adjudicated therein.

    3176 Attorneys Fees to Prevailing Party

    In any action against an owner or construction lender to enforce payment of a claim stated in a bonded stop notice, the prevailing party shall be entitled to collect from the party held liable by the court for payment of the claim, reasonable attorney’s fees in addition to other costs and in addition to any liability for damages.

    The court, upon notice and motion by a party, shall determine who is the prevailing party for purposes of this section, whether or not the suit proceeds to final judgment. Except as otherwise provided by this section, the prevailing party shall be the party who recovered a greater relief in the action. The court may also determine that there is no prevailing party. Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.

    Where the defendant alleges in his or her answer that he or she tendered to the plaintiff the full amount to which he or she was entitled, and thereupon deposits in court for the plaintiff, the amount so tendered, and the allegation is found to be true, then the defendant is deemed to be a prevailing party.

    3176.5 Interest on Stop Notice Claim

    If the plaintiff is the prevailing party in any action against an owner or construction lender to enforce payment of a claim stated in a bonded stop notice, any amount awarded on the claim shall include interest at the legal rate calculated from the date the bonded stop notice is served upon the owner or construction lender pursuant to Section 3172.

  • Colorado, (post date:2013-04-23 22:54:01)

    Colorado Lien Law

    Notice Req.
    Intent to Lien
    Lien Req.
    Prime Contractor

    A Notice of Intent to Lien is required 10 days before filing the lien.

    A Notice of Intent to Lien must be filed on the 10th day prior to filing the lien. The Statement of Lien must be filed within 4 months of last furnishing. If only labor was provided the time is shortened to 2 months. Foreclosure must be brought 6 months after completion or last furnishing of services or materials.

    A lien must be filed with 4 months after last services were performed. If labor alone was provided then the time is lessen to 2 months. Enforcement is required 6 months after the completion and or last furnishing materials.

    Sub Contractor

    A Notice of Intent to Lien is required 10 days before filing the lien.

    A Notice of Intent to Lien must be filed on the 10th day prior to filing the lien. The Statement of Lien must be filed within 4 months of last furnishing. If only labor was provided the time is shortened to 2 months. Foreclosure must be brought 6 months after completion or last furnishing of services or materials.

    A lien must be filed with 4 months after last services were performed. If labor alone was provided then the time is lessen to 2 months. Enforcement is required 6 months after the completion and or last furnishing materials.

    Suppliers/Other

    A Notice of Intent to Lien is required 10 days before filing the lien.

    A Notice of Intent to Lien must be filed on the 10th day prior to filing the lien. The Statement of Lien must be filed within 4 months of last furnishing. If only labor was provided the time is shortened to 2 months. Foreclosure must be brought 6 months after completion or last furnishing of services or materials.

    A lien must be filed with 4 months after last services were performed. If labor alone was provided then the time is lessen to 2 months. Enforcement is required 6 months after the completion and or last furnishing materials.

    PRIVATE PROJECTS:

    Colorado   

    Notice to Owner, Notice of Intent to Lien, Statement of Lien

     

    1. If I don’t have a direct contract with the owner or the property am I required to send a notice to the contractor in Colorado to secure my lien rights for residential property?

    It’s not required to send a Notice to Owner for residential property but it’s certainly helpful! Yes! You can send a Notice to Owner which places a duty on the owner to withhold funds to satisfy payment.

    SECURE YOUR LIEN RIGHTS by send your Notice to Owner Now!

     

    2. Does that state of Colorado require an Intent to Lien before liening a property?

    Yes! For both commercial and residential there is an Intent to Lien before liening the project. You have a total of 10 days before filing a Statement of Lien to send the Notice of Intent to Lien.

     SECURE YOUR LIEN RIGHTS by sending your Notice of Intent to Lien Now!

     

    3. How long do I have to file a claim of lien? 

    A laborer must file a Statement of Lien within 2 months of last performing services.

    Any other parties such as contractors, subcontractors, suppliers etc. must file a Statement of Lien with 4 months of last performing services.

    SECURE YOUR LIEN RIGHTS by sending your Statement of Lien Now!

     

    4. What is the deadline to start a lien foreclosure?

    A suit must be filed no later than 6 months from services were last performed.

     

    5. What is my last day performing services so that I can request payment?

    According to your contract requirements, your last day, is the day materials or labor was furnished on the property.

    GET PAID NOW by signing up with SunRay Construction Solutions

     

    6. Does Colorado law impose special requirements or limitations on lower tier subcontractors or suppliers? 

    Not on private construction projects.  On public construction projects, a supplier to a supplier has no rights to lien.

    GET PAID NOW by signing up with SunRay Construction Solutions

     

    7. Who are all protected under the lien law of Colorado?

    Parties that supply materials, labor, services, or furnish laborers for the real property are provided statutory protection.

    GET PAID NOW by signing up with SunRay Construction Solutions

    MILLER ACT STATUTE:

    The Colorado”Little Miller Act

    Colorado Revised Statutes, Title 24, Government, State, Article 105, Colorado Procurement Code – Construction Contracts, Sections 24-105-201 through 24-105-203

    Title 38, Property – Real and Personal, Article 26, Liens – Contractors’ Bonds and Lien on Funds, Sections 38-26-101 and 38-26-105 through 38-26-110
    ___________________________________________________________________________________

    24-105-201. Bid security.

    (1) Bid security shall be required for all competitive sealed bidding for construction contracts when the price is estimated by the procurement officer to exceed fifty thousand dollars. Bid security shall be a bond provided by a surety company authorized to do business in this state, the equivalent in cash, or otherwise supplied in a form satisfactory to the state. Nothing in this subsection (1) prevents the requirement of such bonds on construction contracts under fifty thousand dollars.

    (2) Bid security shall be in an amount equal to at least five percent of the amount of the bid.

    (3) When the invitation for bids requires security, noncompliance requires that the bid be rejected as nonresponsive.

    (4) After the bids are opened, they shall be irrevocable for the period specified in the invitation for bids, except as provided in section 24-103-202 (6). If a bidder is permitted to withdraw his bid before award, no action shall be had against the bidder or the bid security.

    24-105-202. Contract performance and payment bonds.

    (1) When a construction contract is awarded in excess of one hundred thousand dollars, the following bonds or security shall be delivered to the state and shall become binding on the parties upon the execution of the contract:

    (a) A performance bond satisfactory to the state, executed by a surety company authorized to do business in this state or otherwise secured in a manner satisfactory to the state, in an amount equal to fifty percent of the price specified in the contract; and

    (b) A payment bond satisfactory to the state, executed by a surety company authorized to do business in this state or otherwise secured in a manner satisfactory to the state, for the protection of all persons supplying labor and material to the contractor or its subcontractors for the performance of the work provided for in the contract. The bond shall be in an amount equal to fifty percent of the price specified in the contract.

    (2) Nothing in this section shall be construed to limit the authority of the state to require a performance bond or other security in addition to those bonds or in circumstances other than those specified in subsection (1) of this section.

    (3) Suits on payment bonds and labor and payment bonds shall be brought in accordance with sections 38-26-105 to 38-26-107, C.R.S.

    24-105-203. Bond forms and copies.

    (1) The form of bonds required by this part 2 shall be as provided in sections 38-26-105 to 38-26-107, C.R.S.

    (2) Any person may request and obtain from the state a certified copy of a bond upon payment of the cost of reproduction of the bond and postage, if any. A certified copy of a bond shall be prima facie evidence of the contents, execution, and delivery of the original.

    ___________________________________________


    Colo. Rev. Stat., Title 38, Art. 26, Contractors’ Bonds and Lien on Funds

    38-26-101. Contractor defined.

    The word “contractor”, as used in sections 38-26-101, 38-26-106, and 38-26-107, means any person, copartnership, association of persons, company, or corporation to whom is awarded any contract for the construction, erection, repair, maintenance, or improvement of any building, road, bridge, viaduct, tunnel, excavation, or other public work of this state or for any county, city and county, municipality, school district, or other political subdivision of the state.

    38-26-105. Public works contractor’s bond – conditions.

    (1) Subject to the provisions of subsection (2) of this section, any person, company, firm, or corporation entering into a contract for more than fifty thousand dollars with any county, municipality, or school district for the construction of any public building or the prosecution or completion of any public works or for repairs upon any public building or public works shall be required before commencing work to execute, in addition to all bonds that may be required of it, a penal bond with good and sufficient surety to be approved by the board or boards of county commissioners of the county or counties, the governing body or bodies of the municipality or municipalities, or the district school board or boards, conditioned that such contractor shall at all times promptly make payments of all amounts lawfully due to all persons supplying or furnishing such person or such person’s subcontractors with labor, laborers, materials, rental machinery, tools, or equipment used or performed in the prosecution of the work provided for in such contract and that such contractor will indemnify and save harmless the county, municipality, or school district to the extent of any payments in connection with the carrying out of any such contract which the county or counties, municipality or municipalities, and school district or school districts may be required to make under the law. Subcontractors, materialmen, mechanics, suppliers of rental equipment, and others may have a right of action for amounts lawfully due them from the contractor or subcontractor directly against the principal and surety of such bond. Such action for laborers, materials, rental machinery, tools, or equipment furnished or labor rendered shall be brought within six months after the completion of the work and not afterwards.

    (2) Notwithstanding the monetary qualification provided in subsection (1) of this section, the state, or the governing body of any county, municipality, school district, or other political subdivision determining it to be in the best interest of this state, or any county, municipality, school district, or other political subdivision may require the execution of a penal bond for any contract of fifty thousand dollars or less.

    38-26-106. Contractor executes bond.

    (1) A contractor who is awarded a contract for more than fifty thousand dollars for the construction, erection, repair, maintenance, or improvement of any building, road, bridge, viaduct, tunnel, excavation, or other public works for any county, city and county, municipality, school district, or other political subdivision of the state, and a contractor who is awarded a contract for more than one hundred thousand dollars for the construction, erection, repair, maintenance, or improvement of any building, road, bridge, viaduct, tunnel, excavation, or other public works for this state, before entering upon the performance of any such work included in the contract, shall duly execute, deliver to, and file with the board, officer, body, or person by whom the contract was awarded a good and sufficient bond or other acceptable surety approved by the contracting board, officer, body, or person, in a penal sum not less than one-half of the total amount payable by the terms of the contract; except that, for a public works contract having a total value of five hundred million dollars or more, a bond or other acceptable surety, including but not limited to a letter of credit, may be issued in a penal sum not less than one-half of the maximum amount payable under the terms of the contract in any calendar year in which the contract is performed. The contracting board, office, body, or person shall ensure that the contract requires that a bond or other acceptable surety, including but not limited to a letter of credit, be filed and current for the duration of the contract.

    (2) A bond or other acceptable surety shall be duly executed by a qualified corporate surety or other qualified financial institution, conditioned upon the faithful performance of the contract, and, in addition, shall provide that, if the contractor or his or her subcontractor fails to duly pay for any labor, materials, team hire, sustenance, provisions, provender, or other supplies used or consumed by such contractor or his or her subcontractor in performance of the work contracted to be done or fails to pay any person who supplies laborers, rental machinery, tools, or equipment, all amounts due as the result of the use of such laborers, machinery, tools, or equipment, in the prosecution of the work, the surety or other qualified financial institution will pay the same in an amount not exceeding the sum specified in the bond or other acceptable surety together with interest at the rate of eight percent per annum. Unless a bond or other acceptable surety is executed, delivered, and filed, no claim in favor of the contractor arising under the contract shall be audited, allowed, or paid. A certified or cashier’s check or a bank money order made payable to the treasurer of the state of Colorado or to the treasurer or other officer designated by the governing body of the contracting local government may be accepted in lieu of a bond or other acceptable surety.

    38-26-107. Supplier may file statement – notice – withholding funds.

    (1) Any person, as defined in section 2-4-401 (8), C.R.S., that has furnished labor, materials, sustenance, or other supplies used or consumed by a contractor or his or her subcontractor in or about the performance of the work contracted to be done or that supplies laborers, rental machinery, tools, or equipment to the extent used in the prosecution of the work whose claim therefor has not been paid by the contractor or the subcontractor may, at any time up to and including the time of final settlement for the work contracted to be done, file with the board, officer, person, or other contracting body by whom the contract was awarded a verified statement of the amount due and unpaid on account of the claim. If the amount of the contract awarded to the contractor exceeds fifty thousand dollars, the board, officer, person, or other contracting body by whom the contract was awarded shall, no later than ten days before the final settlement is made, publish a notice of the final settlement at least twice in a newspaper of general circulation in any county where the work was contracted for or performed or in an electronic medium approved by the executive director of the department of personnel. It is unlawful for any person to divide a public works contract into two or more separate contracts for the sole purpose of evading or attempting to evade the requirements of this subsection (1).

    (2) Upon the filing of any such claim, such board, officer, person, or other body awarding the contract shall withhold from all payments to said contractor sufficient funds to insure the payment of said claims until the same have been paid or such claims as filed have been withdrawn, such payment or withdrawal to be evidenced by filing with the person or contracting body by whom the contract was awarded a receipt in full or an order for withdrawal in writing and signed by the person filing such claim or his duly authorized agents or assigns. Such funds shall not be withheld longer than ninety days following the date fixed for final settlement as published unless an action is commenced within that time to enforce such unpaid claim and a notice of lis pendens is filed with the person or contracting body by whom the contract was awarded.

    (3) At the expiration of the ninety day period, the person or other body awarding the contract shall pay to the contractor such moneys and funds as are not the subject of suit and lis pendens notices and shall retain thereafter, subject to the final outcome thereof, only sufficient funds to insure the payment of judgments that may result from the suit. Failure on the part of a claimant to comply with the provisions of sections 38-26-101, 38-26-106, and this section shall relieve the board, officer, body, or person by whom such contract was awarded from any liability for making payment to the contractor. At any time within ninety days following the date fixed for final settlement as published, any person, copartnership, association of persons, company, or corporation, or its assigns, whose claims have not been paid by any such contractor or subcontractor may commence an action to recover the same, individually or collectively, against the surety or other qualified financial institution on the bond or other acceptable surety specified and required in section 38-26-106.

    38-26-108. Substitution of bond allowed.

    (1) Whenever a verified statement of a claim has been filed in accordance with section 38-26-107, the contractor holding the contract against which such statement has been filed, or other person who has an interest in the payments being withheld, by the contracting body that awarded the contract may, at any time, file with the clerk of the district court of the county where the contract is being performed or of the county where the office in which the verified statement of claim is located an ex parte motion for approval of a substitute corporate surety bond or any other undertaking that may be acceptable to a judge of such district court.

    (2) A corporate surety bond or undertaking filed pursuant to subsection (1) of this section shall be in an amount equal to one and one-half times the amount of the claim plus costs allowed by the court up to the date of such filing and shall have been approved by an order of a judge of the district court in which such bond or undertaking is filed. The order shall state that:

    (a) The corporate surety bond or undertaking is approved;

    (b) The verified statement of claim is discharged;

    (c) The corporate surety bond or undertaking shall be substituted for the moneys withheld pursuant to the verified statement of claim; and

    (d) The contracting body that awarded the contract shall release the moneys being withheld pursuant to the verified statement of claim on the same terms and conditions as if the verified statement of claim had been released by the claimant.

    (3) A corporate surety bond or undertaking filed pursuant to subsection (1) of this section shall be conditioned that, if the claimant is finally adjudged to be entitled to recover upon the claim upon which the claimant’s verified statement of a claim is based, the surety issuing the bond or undertaking or the principal thereunder, shall pay to such claimant the amount of the judgment issued upon such claim, together with any interest, costs, and other amounts awarded by the judgment.

    (4) Notwithstanding the provisions of section 38-26-107, upon the issuance of an order from a judge of the district court approving a bond or undertaking filed pursuant to subsection (1) of this section, the clerk of such district court shall issue a certificate of release, which shall be served on the board, officer, person, or other contracting body by whom the contract was awarded by certified mail, return receipt requested, or by personal delivery. The certificate of release shall show that such claim against the contract has been discharged and released in full and the corporate surety bond or undertaking has been substituted. After the certificate of release is filed, payments to the contractor by the contracting body by whom the contract was awarded shall resume in accordance with the terms of the contract, and any funds previously withheld as a result of the filing of the verified statement shall be released to the contractor pursuant to the terms of the contract or, if not specified in the contract, within thirty days after the receipt of the certificate of release by the board, officer, person, or other contracting body by whom the contract was awarded.

    (5) When a corporate surety bond or undertaking is substituted for a claim as provided in this section, the claimant who filed the verified statement of a claim pursuant to section 38-26-107 (1) may bring an action against such bond or undertaking. Such action shall be commenced within the time allowed for the commencement of an action set forth in section 38-26-107 (3).

    (6) In the event that no action is commenced upon the corporate surety bond or undertaking within the time period called for by section 38-26-107, the corporate surety bond or undertaking shall be discharged and shall be returned to the contractor.

    38-26-109. Moneys for verified claims made – trust funds – disbursements – penalty.

    (1) All funds disbursed to any contractor or subcontractor under any contract or project subject to the provisions of this article shall be held in trust for the payment of any person that has furnished labor, materials, sustenance, or other supplies used or consumed by the contractor in or about the performance of the work contracted to be done or that supplies laborers, rental machinery, tools, or equipment to the extent used in the prosecution of the work where the person has:

    (a) Filed or may file a verified statement of a claim arising from the project; or

    (b) Asserted or may assert a claim against a principal or surety under the provisions of this article and for whom or which such disbursement was made.

    (2) The requirements of this section shall not be construed so as to require a contractor or subcontractor to hold in trust any funds that have been disbursed to him or her for any person that has furnished labor, materials, sustenance, or other supplies used or consumed by the contractor or his or her subcontractor in the performance of the work contracted to be done; supplied laborers, rental machinery, tools, or equipment to the extent used in the prosecution of the work; filed or may file a verified statement of a claim arising from the project; or asserted or may assert a claim against a principal or surety that has furnished a bond under the provisions of this article if:

    (a) The contractor or subcontractor has a good faith belief that the verified statement of a claim or bond claim is not valid; or

    (b) The contractor or subcontractor, in good faith, claims a setoff, to the extent of such setoff.

    (3) Each contractor or subcontractor shall maintain separate records of account of each project or account; except that nothing in this section shall be construed to require a contractor or subcontractor to deposit trust funds from a single project in a separate bank account solely for that project as long as the trust funds are not disbursed in a manner that conflicts with the requirements of this section.

    (4) Any person who violates the provisions of subsections (1) and (2) of this section commits theft within the meaning of section 18-4-401, C.R.S.

    38-26-110. Excessive amounts claimed.

    (1) Any person who files a verified statement of a claim or asserts a claim against a principal or surety that has furnished a bond under this article for an amount greater than the amount due without a reasonable possibility that the amount claimed is due and with the knowledge that the amount claimed is greater than the amount due, and that fact is demonstrated in any proceedings under this article, shall forfeit all rights to the amount claimed and shall be liable to the following in an amount equal to all costs and all attorney fees reasonably incurred in bonding over, contesting, or otherwise responding in any way to the excessive verified statement of claim or excessive bond claim:

    (a) The person to whom or which a disbursement would be made but for the verified statement of a claim or bond claim; or

    (b) The principal and surety on the bond.

    LIEN STATUTE:

    38-22-101 Liens in Favor of Whom – When Filed
    38-22-102 Payments – Effect
    38-22-103 Attaching of Lien – Enforcement
    38-22-104 Lien on Mining Property
    38-22-105 Property Subject to Lien – Notice
    38-22-105.5 Notice of Lien Law
    38-22-106 Priority of Lien – Attachments
    38-22-107 Lien Attaches to Water Rights and Franchises
    38-22-108 Rank of Liens
    38-22-109 Lien Statement
    38-22-110 Action Commenced Within Six Months
    38-22-111 Joinder of Parties – Consolidation of Actions
    38-22-112 Allegations of Complaint
    38-22-113 Hearing – Judgment – Summons – Defense
    38-22-114 Disposition of Proceeds – Execution
    38-22-115 Parties to Action
    38-22-116 Costs
    38-22-117 Assignment of Lien – Failure to Support Lien
    38-22-118 Satisfaction of Lien – Failure to Release
    38-22-119 Agreement to Waive – Effect
    38-22-120 Rules of Civil Procedure Apply
    38-22-121 Liens of Surveyors and Engineers
    38-22-122 Lien Under Two Contracts – Effect
    38-22-123 Payment to Avoid Invalid
    38-22-124 Other Remedies Not Barred
    38-22-125 Bona Fide Purchaser
    38-22-126 Disburser – Notice – Duty of Owner and Disburser
    38-22-127 Moneys for Lien Claims Made Trust Funds – Disbursements – Penalty
    38-22-128 Excessive Amounts Claimed
    38-22-129 Principal Contractor May Provide Bond Prior to Commencement of Work
    38-22-130 Payment of Claims by Surety
    38-22-131 Substitution of Bond Allowed
    38-22-132 Lien to be Discharged
    38-22-133 Action to be Brought on Bond or Undertaking
    38-22-101 Liens in Favor of Whom – When Filed

    (1) Every person who supplies machinery, tools, or equipment in the prosecution of the work, and mechanics, materialmen, contractors, subcontractors, builders, and all persons of every class performing labor upon or furnishing directly to the owner or persons furnishing labor materials to be used in construction, alteration, improvement, addition to, or repair, either in whole or in part, of any building, mill, bridge, ditch, flume, aqueduct, reservoir, tunnel, fence, railroad, wagon road, tramway, or any other structure or improvement upon land, including adjacent curb, gutter, and sidewalk, and also architects, engineers, draftsmen, and artisans who have furnished designs, plans, plats, maps, specifications, drawings, estimates of cost, surveys, or superintendence, or who have rendered other professional or skilled service, or bestowed labor in whole or in part, describing or illustrating, or superintending such structure, or work done or to be done, or any part connected therewith, shall have a lien upon the property upon which they have supplied machinery, tools, or equipment or rendered service or bestowed labor or for which they have furnished materials or mining or milling machinery or other fixtures, for the value of such machinery, tools, or equipment supplied, or services rendered or labor done or material furnished, whether at the instance of the owner, or of any other person acting by his authority or under him, as agent, contractor, or otherwise for the machinery, tools, or equipment supplied, or work or labor done or services rendered or materials furnished by each, respectively, whether supplied or done or furnished or rendered at the instance of the owner of the building or other improvement, or his agent; and every contractor, architect, engineer, subcontractor, builder, agent, or other person having charge of the construction, alteration, addition to, or repair, either in whole or in part, of said building or other improvement shall be held to be the agent of the owner for the purposes of this article.

    (2) In case of a contract for the work, between the reputed owner and a contractor, the lien shall extend to the entire contract price, and such contract shall operate as a lien in favor of all persons performing labor or services or furnishing materials under contract, express or implied, with said contractor, to the extent of the whole contract price; and after all such liens are satisfied, then as a lien for any balance of such contract price in favor of the contractor.

    (3) All such contracts shall be in writing when the amount to be paid thereunder exceeds five hundred dollars, and shall be subscribed by the parties thereto. The contract, or a memorandum thereof, setting forth the names of all the parties to the contract, a description of the property to be affected thereby, together with a statement of the general character of the work to be done, the estimated total amount to be paid thereunder, together with the times or stages of the work for making payments, shall be filed by the owner or reputed owner, in the office of the county clerk and recorder of the county where the property, or the principal portion thereof, is situated before the work is commenced under and in accordance with the terms of the contract. In case such contract, or a memorandum thereof, is not so filed, the labor done and materials furnished by all persons shall be deemed to have been done and furnished at the personal instance of the owner, and such persons shall have a lien for the value thereof.

    (4) For the purposes of this article, the value of labor done shall include, but not be limited to, the payments required under any labor contract to any trust established for the provision of any pension, profit-sharing, vacation, health and welfare, prepaid legal services, or apprentice training benefits for the use of the employees of any contractors, and the trustee of any such trust shall have a lien therefore.

    (5) All claimants who establish the right to a lien or claim under any of the provisions of this article shall be entitled to receive interest on any such lien or claim at the rate provided for under the terms of any contract or agreement under which the labor or material was supplied or, in the absence of an agreed rate, at the rate of twelve percent per annum.

    38-22-102 Payments – Effect

    (1) No part of the contract price, by the terms of any such contract, shall be made payable, nor shall the same, or any part thereof, be paid in advance of the commencement of the work, but the contract price, by the terms of the contract, shall be made payable in installments, or upon estimates, at specified times after the commencement of the work, or on the completion of the whole work; but at least the following percentages of the total contract price shall be made payable at least thirty-five days after the final completion of the contract:
    (a) Fifteen percent of the first two hundred fifty thousand dollars of the contract price;
    (b) Ten percent of the contract price in excess of two hundred fifty thousand dollars up to and including five hundred thousand dollars;
    (c) Five percent of the contract price in excess of five hundred thousand dollars up to and including seven hundred fifty thousand dollars;
    (d) Two percent of the contract price in excess of seven hundred fifty thousand dollars.

    (2) No payment made prior to the time when the same is due, under the terms and conditions of the contract, shall be valid for the purpose of defeating, diminishing, or discharging any lien in favor of any person, except the contractor or other person to or for whom the payment is made, but as to such liens, such payment shall be deemed as if not made and shall be applicable to such liens, notwithstanding that the contractor or other person to or for whom it was paid may thereafter abandon his contract, or be or become indebted to the reputed owner in any amount for damages or otherwise or for nonperformance of his contract or otherwise.

    (3) As to all liens, except those of principal contractors, the whole contract price shall be payable in money, and shall not be diminished by any prior or subsequent indebtedness, offset, or counterclaim in favor of the reputed owner and against the principal contractor, and no alteration of such contract shall affect any lien acquired under the provisions of this article. In case such contracts and alterations thereof do not conform substantially to the provisions of this section, the labor done and materials furnished by all persons other than the principal contractor shall be deemed to have been done and furnished at the personal instance and request of the person who contracted with the principal contractor, they shall have a lien for the value thereof.

    (3.5) Any provisions of this section to the contrary notwithstanding, it shall be an affirmative defense in any action to enforce a lien pursuant to this article that the owner or some person acting on his behalf has paid an amount sufficient to satisfy the contractual and legal obligations of the owner, including the initial purchase price or contract amount plus any additions or change orders, to the principal contractor or any subcontractor for the purpose of payment to the subcontractors or suppliers of materials or services to the job, when:
    (a) The property is an existing single-family dwelling unit;
    (b) The property is a residence constructed by the owner or under a contract entered into by the owner prior to its occupancy as his primary residence; or
    (c) The property is a single-family, owner-occupied dwelling unit, including a residence constructed and sold for occupancy as a primary residence. This paragraph (c) shall not apply to a developer or builder of multiple residences except for the residence that is occupied as the primary residence of the developer or builder.

    (4) Any of the persons mentioned in section 38-22-101, except a principal contractor, at any time may give to the owner, or reputed owner, or to his superintendent of construction, agent, architect, or to the financing institution or other person disbursing construction funds, a written notice that they have performed labor or furnished materials or both to or for a principal contractor, or any person acting by authority of the owner or reputed owner, or that they have agreed to and will do so, stating in general terms the kind of labor or materials and the name of the person to or for whom the same was or is to be done or performed, or both, and the estimated or agreed amount in value, as near as may be, of that already done or furnished, or both, and also of the whole agreed to be done or furnished, or both.

    (5) Such notice may be given by delivering the same to the owner or reputed owner personally, or by leaving it at his residence or place of business with some person in charge; or by delivering it either to his superintendent of construction, agent, architect, or to the financing institution or other person disbursing construction funds, or by leaving it either at their residence or place of business with some person in charge. No such notice shall be invalid or insufficient by reason of any defect of form, provided it is sufficient to inform the owner or reputed owner of the substantial matters provided for in this section, or to put him upon inquiry as to such matters.

    (6) Upon such notice being given, it is the duty of the person who contracted with the principal contractor to withhold from such principal contractor, or from any other person acting under such owner or reputed owner, and to whom, by said notice, the said labor or materials, or both, have been furnished or agreed to be furnished, sufficient money due or that may become due to said principal contractor, or other persons, to satisfy such claim and any lien that may be filed therefore for record under this article, including reasonable costs provided for in this article.

    (7) The payment of any such lien, which has been acknowledged by such principal contractor, or other person acting under such owner or reputed owner in writing to be correct, or which has been established by judicial determination, shall be taken and allowed as an offset against any moneys which may be due from the owner, or reputed owner to such principal contractor, or the person for whom such work and labor was performed.

    38-22-103 Attaching of Lien – Enforcement

    (1) The liens granted by this article shall extend to and cover so much of the lands whereon such building, structure, or improvement is made as may be necessary for the convenient use and occupation of such building, structure, or improvement, and the same shall be subject to such liens. In case any such building occupies two or more lots or other subdivisions of land, such several lots or other subdivisions shall be deemed one lot for the purposes of this article, and the same rule shall hold in cases of any other such improvements that are practically indivisible, and shall attach to all machinery and other fixtures used in connection with any such lands, buildings, mills, structures, or improvements.

    (2) When the lien is for work done or material furnished for any entire structure, erection, or improvement, such lien shall attach to such building, erection, or improvement for or upon which the work was done, or materials furnished in preference to any prior lien or encumbrance, or mortgage upon the land upon which the same is erected or put, and any person enforcing such lien may have such building, erection, or improvement sold under execution and the purchaser at any such sale may remove the same within thirty days after such sale.

    (3) Any lien provided for by this article shall extend to and embrace any additional or greater interest in any of such property acquired by such owner at any time subsequent to the making of the contract or the commencement of the work upon such structure and before the establishment of such lien by process of law, and shall extend to any assignable, transferable, or conveyable interest of such owner or reputed owner in the land upon which such building, structure, or other improvement is erected or placed.

    (4) Whenever any person furnishes any materials or performs any labor, or both, for the erection, construction, addition to, alteration, or repair of two or more buildings, structures, or other improvements, when they are built and constructed by the same person and under the same contract, it is lawful for the person so furnishing such materials or performing such labor to divide and apportion the same among the buildings, structures, or other improvements in proportion to the value of the materials furnished for and the labor performed upon or for each of said buildings, structures, or other improvements and to file with his lien claim therefore a statement of the amount so apportioned to each building, structure, or other improvement. This lien claim when so filed may be enforced under the provisions of this article in the same manner as if said materials had been furnished and labor performed for each of said buildings, structures, or other improvements separately; but if the cost or value of such labor and materials, or either, cannot be readily and definitely divided and apportioned among the several buildings, structures, or other improvements, then one lien claim may be made, established, and enforced against all such buildings, structures, or other improvements, together with the ground upon which the same may be situated, and in such case for the purposes of this article, all such buildings, structures, and improvements shall be deemed one building, structure, or improvement, and the land on which the same are situated as one tract of land.

    38-22-104 Lien on Mining Property

    The provisions of this article shall apply to all persons who do work or furnish materials, or mining, milling, or other machinery or other fixtures, as provided in section 38-22-101, for the working, preservation, prospecting, or development of any mine, lode, or mining claim or deposit yielding metals or minerals of any kind, or for the working, preservation, or development of any such mine, lode, or deposit, in search of any such metals or minerals; and to all persons who do work upon or furnish materials, mining, milling, and other machinery or other fixtures, as provided in section 38-22-101, upon, in, or for any shaft, tunnel, mill, or tunnel site, incline, adit, drift, or any draining or other improvement of or upon any such mine, lode, deposit, or tunnel site; and to every miner or other person who does work upon or furnishes any coal, power, provisions, timber, powder, rope, nails, candles, fuse, caps, rails, spikes, or iron, or other materials whatever, as provided in section 38-22-101, upon any mine, lode, deposit, mill, or tunnel site. But when two or more lodes, mines, or deposits owned or claimed by the same person are worked through a common shaft, tunnel, incline, adit, drift, or other excavation, then all the mines, mining claims, lodes, deposits, and tunnel and mill sites so owned and worked or developed, for the purpose of this article shall be deemed one mine. This section is not applicable to the owner of any mine, lode, mining claim, deposit, mill, or tunnel where the work or labor has been performed for or the materials furnished to a lessee.

    38-22-105 Property Subject to Lien – Notice

    (1) Any building, mill, manufactory, bridge, ditch, flume, aqueduct, reservoir, tunnel, fence, railroad, wagon road, tramway, and every structure or other improvement mentioned in this article, constructed, altered, added to, removed to, or repaired, either in whole or in part, upon or in any land with the knowledge of the owner or reputed owner of such land, or of any person having or claiming an interest therein, otherwise than under a bona fide prior recorded mortgage, deed of trust, or other encumbrance, or prior lien shall be held to have been erected, constructed, altered, removed, repaired, or done at the instance and request of such owner or person, including landlord or vendor, who by lease or contract has authorized such improvements, but so far only as to subject his interest to a lien therefore as provided in this section.

    (2) Such interest so owned or claimed shall be subject to any lien given by the provisions of this article, unless such owner or person within five days after he has obtained notice of the erection, construction, alteration, removal, addition, repair, or other improvement, gives notice that his interests shall not be subject to any lien for the same by serving a written or printed notice to that effect, personally, upon all persons performing labor or furnishing skill, materials, machinery, or other fixtures therefore, or within five days after he has obtained the notice aforesaid, or notice of the intended erection, construction, alteration, removal, addition, repair, or other improvement gives such notice by posting and keeping posted a written or printed notice to the effect aforesaid, in some conspicuous place upon said land or upon the building or other improvements situate thereon.

    (3) This section shall not apply to co-owners of unincorporated canals, ditches, flumes, aqueducts, and reservoirs nor to the enforcement of article 23 of this title. The provisions of this section shall not be construed to apply to any owner or person claiming any interest in such property, the interest of whom is subject to a lien pursuant to the provisions of section 38-22-101.

    38-22-105.5 Notice of Lien Law

    (1) Upon issuing a building permit for the improvement, restoration, remodeling, or repair of or the construction of improvements or additions to residential property, the agency or other authority issuing the permit shall send a written notice, as set forth in subsection (2) of this section, by first-class mail addressed to the property for which the permit was issued.

    (2) The notice shall be in at least ten-point bold-faced type, if printed, or in capital letters, if ypewritten, shall identify the contractor by name and address, and shall state substantially as follows:

    IMPORTANT NOTICE TO OWNERS: UNDER COLORADO LAW, SUPPLIERS, SUBCONTRACTORS, OR OTHER PERSONS PROVIDING LABOR OR MATERIALS FOR WORK ON YOUR RESIDENTIAL PROPERTY MAY HAVE A RIGHT TO COLLECT THEIR MONEY FROM YOU BY FILING A LIEN AGAINST YOUR PROPERTY. A LIEN CAN BE FILED AGAINST YOUR RESIDENCE WHEN A SUPPLIER, SUBCONTRACTOR, OR OTHER PERSON IS NOT PAID BY YOUR CONTRACTOR FOR HIS LABOR OR MATERIALS. HOWEVER, IN ACCORDANCE WITH THE COLORADO GENERAL MECHANICS’ LIEN LAW, SECTIONS 38-22-102 (3.5) AND 38-22-113 (4), COLORADO REVISED STATUTES, YOU HAVE AN AFFIRMATIVE DEFENSE IN ANY ACTION TO ENFORCE A LIEN IF YOU OR SOME PERSON ACTING ON YOUR BEHALF HAS PAID YOUR CONTRACTOR AND SATISFIED YOUR LEGAL OBLIGATIONS. YOU MAY ALSO WANT TO DISCUSS WITH YOUR CONTRACTOR, YOUR ATTORNEY, OR YOUR LENDER POSSIBLE PRECAUTIONS, INCLUDING THE USE OF LIEN WAIVERS OR REQUIRING THAT EVERY CHECK ISSUED BY YOU OR ON YOUR BEHALF IS MADE PAYABLE TO THE CONTRACTOR, THE SUBCONTRACTOR, AND THE SUPPLIER FOR AVOIDING DOUBLE PAYMENTS IF YOUR PROPERTY DOES NOT SATISFY THE REQUIREMENTS OF SECTIONS 38-22-102 (3.5) AND 38-22-113 (4), COLORADO REVISED STATUTES. YOU SHOULD TAKE WHATEVER STEPS NECESSARY TO PROTECT YOUR PROPERTY.

    (3) The notice prescribed by this section shall not be required when a building permit is issued for new residential construction or for residential property containing more than four living units.

    (4) As used in this section: (a) New residential construction means the construction or addition of living units on real property that was previously unimproved or was used for nonresidential purposes.
    (b) Residential property means any real property, including improvements, containing living units used for human habitation.

    (5) To offset the cost of issuing the notice required by this section, the appropriate authority may raise the fee for a building permit by one dollar.

    (6) The failure of the agency or other authority which issues building permits to provide the notice required by this section shall not be an affirmative defense to any lien claimed pursuant to the provisions of this article; nor shall the agency or any employee of the agency incur liability as a result of such failure.

    (7) The agency or other authority which issues building permits may deliver the notice required by this section personally to the owner of the property, in lieu of mailing the notice as provided by subsection (1) of this section.

    38-22-106 Priority of Lien – Attachments

    (1) All liens established by virtue of this article shall relate back to the time of the commencement of work under the contract between the owner and the first contractor, or, if said contract is not in writing, then such liens shall relate back to and take effect as of the time of the commencement of the work upon the structure or improvement, and shall have priority over any lien or encumbrance subsequently intervening, or which may have been created prior thereto but which was not then recorded and of which the lienor, under this article, did not have actual notice. Nothing contained in this section, however, shall be construed as impairing any valid encumbrance upon any such land duly made and recorded prior to the signing of such contract or the commencement of work upon such improvements or structure.

    (2) No attachment, garnishment, or levy under an execution upon any money due or to become due to a contractor from the owner or reputed owner of any such property subject to any such lien shall be valid as against such lien of a subcontractor or materialmen, and no such attachment, garnishment, or levy upon any money due to a subcontractor or materialmen of the second class, as provided in section 38-22-108 (1) (b), from
    the contractor shall be valid as against any lien of a laborer employed by the day or piece, who does not furnish any material as classified in this article.

    38-22-107 Lien Attaches to Water Rights and Franchises

    Such liens likewise shall attach to rights of water and rights-of-way that may pertain in any manner to any kind of property specified in this article and to which such liens attach. In the case of corporations such liens shall attach to all the franchis and charter privileges that may pertain in any manner to said specified property.

    38-22-108 Rank of Liens

    (1) Every person given a lien by this article whose contract, either express or implied, is with the owner or reputed owner or his agent or other representative, is a principal contractor and all others are subcontractors; and in every case in which different liens are claimed against the same property, the rank of each lien, or class of liens, as between the different lien claimants, shall be declared and ordered to be satisfied in the decree or judgment in the following order named:
    (a) The liens of all those who were laborers or mechanics working by the day or piece, but without furnishing material therefore, either as principal or subcontractors;
    (b) The liens of all other subcontractors and of all materialmen whose claims are either entirely or principally for materials, machinery, or other fixtures, furnished either as principal or subcontractors;
    (c) The liens of all other principal contractors and all funds realized in any actions for the satisfaction of liens against the same improvements or structures shall be paid out in the order above designated.

    38-22-109 Lien Statement

    (1) Any person wishing to avail himself of the provisions of this article shall file for record, in the office of the county clerk and recorder of the county wherein the property, or the principal part thereof, to be affected by the lien is situated, a statement containing:
    (a) The name of the owner or reputed owner of such property, or in case such name is not known to him, a statement to that effect;
    (b) The name of the person claiming the lien, the name of the person who furnished the material or performed the labor for which the lien is claimed, and the name of the contractor when the lien is claimed by a subcontractor or by the assignee of a subcontractor, or, in case the name of such contractor is not known to a lien claimant, a statement to that effect;
    (c) A description of the property to be charged with the lien, sufficient to identify the same; and
    (d) A statement of the amount due or owing such claimant.

    (2) Such statement shall be signed and sworn to by the party, or by one of the parties, claiming such lien, or by some other person in his or their behalf, to the best knowledge, information, and belief of the affiant; and the signature of any such affiant to any such verification shall be a sufficient signing of the statement.

    (3) In order to preserve any lien for work performed or materials furnished, there must be a notice of intent to file a lien statement served upon the owner or reputed owner of the property or his agent and the principal or prime contractor or his agent at least ten days before the time of filing the lien statement with the county clerk and recorder. Such notice of intent shall be served by personal service or by registered or certified mail, return receipt requested, addressed to the last known address of such persons, and an affidavit of such service or mailing at least ten days before filing of the lien statement with the county clerk and recorder shall be filed for record with said statement and shall constitute proof of such service.

    (4) All such lien statements claimed for labor and work by the day or piece, but without furnishing material therefore, must be filed for record after the last labor for which the lien claimed has been performed and at any time before the expiration of two months next after the completion of the building, structure, or other improvement.

    (5) Except as provided in subsections (10) and (11) of this section, the lien statements of all other lien claimants must be filed for record at any time before the expiration of four months after the day on which the last labor was performed or the last material furnished by such lien claimant.

    (6) New or amended statements may be filed within the periods provided in this section for the purpose of curing any mistake or for the purpose of more fully complying with the provisions of this article.

    (7) No trivial imperfection in or omission from the said work or in the construction of any building, improvement, or structure, or of the alteration, addition to, or repair thereof, shall be deemed a lack of completion, nor shall such imperfection or omission prevent the filing of any lien statement or filing of or giving notice, nor postpone the running of any time limit within which any lien statement shall be filed for record or served upon the owner or reputed owner of the property or his agent and the principal or prime contractor or his agent, or within which any notice shall be given. For the purposes of this section, abandonment of all labor, work, services, and furnishing of materials under any unfinished contract or upon any unfinished building, improvement, or structure, or the alteration, addition to, or repair thereof, shall be deemed equivalent to a completion thereof. For the purposes of this section, abandonment means discontinuance of all labor, work, services, and furnishing of materials for a three-month period.

    (8) Subject to the prior termination of the lien under the provisions of section 38-22-110, no lien claimed by virtue of this article shall hold the property, or remain effective longer than one year from the filing of such lien, unless within thirty days after each annual anniversary of the filing of said lien statement there is filed in the office of the county clerk and recorder of the county wherein the property is located an affidavit by the person or one of the persons claiming the lien, or by some person in his behalf, stating that the improvements on said property have not been completed.

    (9) Upon the filing of the notice required and the commencement of an action, within the time and in the manner required by said section 38-22-110, no annual affidavit need be filed thereafter.

    (10) Within the applicable time period provided in subsections (4) and (5) of this section and subject to the provisions of section 38-22-125, any lien claimant granted a lien pursuant to section 38-22-101 may file with the county clerk and recorder of the county in which the real property is situated a notice stating the legal description or address or such other description as will identify the real property; the name of the person with whom he has contracted; and the claimant’s name, address, and telephone number. One such notice may be filed upon more than one property, and, in the case of a subdivision, one notice may describe only the part thereof upon which the claimant has or will obtain a lien pursuant to section 38-22-101. The filing of said notice shall serve as notice that said person may thereafter file a lien statement and shall extend the time for filing of the mechanic’s lien statement to four months after completion of the structure or other improvement or six months after the date of filing of said notice, whichever occurs first. Unless sooner terminated as provided in subsection (11) of this section, the notice provided for in this subsection (10) shall automatically terminate six months after the date said notice is filed. In the event that said structure or other improvements have not been completed prior to the termination of said notice, a claimant, prior to said termination date, may file a new or amended notice which shall remain effective for an additional period of six months after the date of filing or four months after the date of completion of said structure or other improvements, whichever occurs first.

    (11) Upon termination of agreement to provide labor or materials, the owner, or someone in his behalf, may demand from the person filing said notice a termination of said notice, which termination shall identify the properties upon which labor has not been performed or to which materials have not been furnished and as to which said notice is terminated. Upon the filing of said termination in the office of the county clerk and recorder in the county wherein said property is situated, such notice no longer constitutes notice as provided in subsection (10) of this section as to the property described in said termination.

    (12) The notices provided for in subsections (10) and (11) of this section shall be recorded in the office of the county clerk and recorder of the county wherein the real property is located.

    38-22-110 Action Commenced Within Six Months

    No lien claimed by virtue of this article, as against the owner of the property or as against one primarily liable for the debt upon which the lien is based or as against anyone who is neither the owner of the property nor one primarily liable for such debt, shall hold the property longer than six months after the last work or labor is performed, or materials furnished, or after the completion of the building, structure, or other improvement, or the completion of the alteration, addition to, or repair thereof, as prescribed in section 38-22-109, unless an action has been commenced within that time to enforce the same, and unless also a notice stating that such action has been commenced is filed for record within that time in the office of the county clerk and recorder of the county in which said property is situate. Where two or more liens are claimed of record against the same property, the commencement of any action and the filing of the notice of the commencement of such action within that time by any one or more of such lien claimants in which action all the lien claimants as appear of record are made parties, either plaintiff or defendant shall be sufficient.

    38-22-111 Joinder of Parties – Consolidation of Actions

    (1) Any number of persons claiming liens against the same property and not contesting the claims of each other may join as plaintiffs in the same action; and when separate actions are commenced, the court may consolidate them upon motion of any party in interest or upon its own motion.

    (2) Upon such procedure for consolidation, one case shall be selected with which the other cases shall be incorporated; and all the parties to such other cases shall be made parties plaintiff or defendant as the court may designate in said case so selected. All persons having claims for liens, the statements of which have been filed as provided in this article, shall be made parties to the action.

    (3) Those claiming liens who fail or refuse to become parties plaintiff, or for any reason have not been made such parties, shall be made parties defendant. Any party claiming a lien, not made a party to such action, at any time within the period provided in section 38-22-109, may be allowed to intervene by motion, upon cause shown, and may be made a party defendant on the order of the court, which shall fix by such order the time for such intervenor to plead or otherwise proceed. The pleadings and other proceedings of such intervenor thus made a party shall be the same as though he had been an original party. Any defendant who claims a lien, in answering, shall set forth by cross complaint his claim and lien. Likewise such defendant may set forth in said answer defensive matter to any claim or lien of any plaintiff or codefendant or otherwise deny such claim or lien. The owner of the property to which such lien has attached, and all other parties claiming of record any right, title, interest, or equity therein, whose title or interests are to be charged with or affected by such lien, shall be made parties to the action.

    38-22-112 Allegations of Complaint

    It is sufficient to allege in the complaint in relation to any party claiming a lien whom it is desired to make a defendant, that such party claims a lien under this article upon the property described; and in case of the intervention of parties, or of the making of new parties, or of the consolidation of actions, so that the issues are in any manner changed or increased, any party to the action shall be allowed to amend his pleadings, or file new pleadings, as the nature of the case may require.

    38-22-113 Hearing – Judgment – Summons – Defense

    (1) The court, whenever the issues in such case are made up, shall advance such cause to the head of the docket for trial and may proceed to hear and determine said liens and claims or may refer the same to a magistrate to ascertain and report upon said liens and claims and the amounts justly due thereon.

    (2) Judgments shall be rendered according to the rights of the parties. The various rights of all the lien claimants and other parties to any such action shall be determined and incorporated in one judgment or decree. Each party who establishes his claim under this article shall have judgment against the party personally liable to him for the full amount of his claim so established, and shall have a lien established and determined in said decree upon the property to which his lien has attached to the extent stated in this section.

    (3) Proceedings to foreclose and enforce mechanics’ liens under this article are actions in rem, and service by publication may be obtained against any defendant therein in a manner as provided by law, and personal judgment against the principal contractor or other person personally liable for the debt for which the lien is claimed shall not be requisite to a decree of foreclosure in favor of a subcontractor or materialman.

    (4) In such proceedings, it shall be an affirmative defense that the owner or some person acting on his behalf has paid an amount sufficient to satisfy the contractual and legal obligations of the owner, including the initial purchase price or contract amount plus any additions or change orders, to the principal contractor or any subcontractor for the purpose of payment to the subcontractors or suppliers of materials or services to the job, when:
    (a) The property is an existing single-family dwelling unit;
    (b) The property is a residence constructed by the owner or under a contract entered into by the owner prior to its occupancy as his primary residence; or
    (c) The property is a single-family, owner-occupied dwelling unit, including a residence constructed and sold for occupancy as a primary residence. This paragraph (c) shall not apply to a developer or builder of multiple residences except for the residence that is occupied as the primary residence of the developer or builder.

    38-22-114 Disposition of Proceeds – Execution

    (1) The court shall cause said property to be sold in satisfaction of said liens and costs of suit as in case of foreclosure of mortgages; and any party in whose favor a judgment for a lien is rendered, may cause the property to be sold within the time and in the manner provided for sales of real estate on executions issued out of any court of record, and there shall be the same rights of redemption as are provided for in the case of sales of real estate on executions. And if the proceeds of such sale, after the payment of costs, are not sufficient to satisfy the whole amount of such liens included in the decree of sale, then such proceeds shall be apportioned according to the rights of the several parties. In case the proceeds of sale amount to more than the sum of said liens and all costs, then the remainder shall be paid over to the owner of said property; and each party whose claim is not fully satisfied in the manner provided in this section shall have execution for the balance unsatisfied against the party personally liable, as in other cases.

    (2) In the first instance without a previous sale of said property to which such liens have attached, an execution may issue in behalf of any such lien claimant for the full amount of his claim against the party personally liable, and he may thereafter enforce such lien for any balance of such judgment remaining unsatisfied. A transcript of the docket of said judgment and decree may be filed with the county clerk and recorder of the county where such property is situated or in any other county, and thereupon said judgment and decree shall become a lien upon the real property in such county of each party so personally liable in favor of any such lien claimant holding any such judgment against any such party
    so personally liable, as in other cases of recording transcripts of judgment.

    38-22-115 Parties to Action

    Principal contractors and all other persons personally liable for the debt for which the lien is claimed shall be made parties to actions to enforce liens under this article, and service of summons shall be made either personally or by publication in the same manner and with like effect as is provided by law in cases of attachment and other proceedings in rem.

    38-22-116 Costs

    The court shall divide the costs between the parties liable therefore, according to the justice of the case.

    38-22-117 Assignment of Lien – Failure to Support Lien

    Any party claiming a lien may assign in writing his claim and lien to any other claimant or other person who shall thereupon have all the rights and remedies of the assignor for the purpose of filing and for the enforcement of any such lien by action under this article, and the assignment shall be a sufficient consideration as to all other parties for the purpose of such action. Such assignment may be made before or after the filing of the statement of lien. Any such claimant, whether as assignee or otherwise, may include all the liens he may possess against the same property in any such statement, and when more than one such claim is included in one such statement, one verification thereto shall be sufficient. Any person may file separate statements of two or more claims. If, on the trial of a cause under the provisions of this article, the proceedings will not support a lien, the plaintiff and all lien claimants entitled thereto may proceed to judgment as in an action on contract, and executions may issue as provided in such cases, and said judgment shall have all the rights of a judgment in a personal action.

    38-22-118 Satisfaction of Lien – Failure to Release

    The claimant of any such lien, the statement of which has been filed, on the payment of the amount thereof, together with the costs of filing and recording such lien, and the acknowledgment of satisfaction, and accrued costs of suit in case a suit has been brought thereon, at the request of
    any person interested in the property charged therewith, shall enter or cause to be entered an acknowledgment of satisfaction of the same of record, and if he neglects or refuses to do so within ten days after the written request of any person so interested, he shall forfeit and pay to such person the sum of ten dollars per day for every day of such neglect or refusal, to be recovered in the same manner as other debts. A valid tender of payment, refused by any such claimant, shall be equivalent to a payment for the purpose of this section. Any such statement may be satisfied of record in the same manner as mortgages.

    38-22-119 Agreement to Waive – Effect

    No agreement to waive, abandon, or refrain from enforcing any lien provided for by this article shall be binding except as between the parties to such contract. The provisions of this article shall receive a liberal construction in all cases.

    38-22-120 Rules of Civil Procedure Apply

    The provisions of the Colorado rules of civil procedure, insofar as the same are applicable and not in conflict with the provisions of this article, shall be observed in proceedings to establish and enforce mechanics’ liens.

    38-22-121 Liens of Surveyors and Engineers

    The provisions of this article shall apply to surveyors, civil and mining engineers doing any work of surveying or plotting of any mines, mining claims, lodes, or mineral deposits, and they shall have like lien and claim as other persons under the provisions of this article.

    38-22-122 Lien Under Two Contracts – Effect

    In case the act of doing such work or of furnishing such materials is continuous, said lien shall attach as in other cases, even though such work is done or materials have been furnished under two or more contracts between the same parties.

    38-22-123 Payment to Avoid Invalid

    No payment made by any owner to any contractor for the purpose of avoiding any anticipated lien of any subcontractor shall be valid; and if any person files either of said statements for a lien for a larger sum than is due or to become due, in fact, or in probability, as the case may be, with intent to cheat or defraud any other person, and that fact appears in any proceeding under this article, such person shall forfeit all rights to such lien under this article.

    38-22-124 Other Remedies Not Barred

    No remedy given in this article shall be construed as preventing any person from enforcing any other remedy which he otherwise would have had, except as otherwise provided in this article. In case of two or more owners, contractors, or subcontractors interested in the same contract, the rule of procedure shall be the same as in the case of one such.

    38-22-125 Bona Fide Purchaser

    No lien, excepting those claimed by laborers or mechanics as defined in section 38-22-108 (1) (a), filed for record more than two months after completion of the building, improvement, or structure shall encumber the interest of any bona fide purchaser for value of real property, the principal improvement upon which is a single- or double-family dwelling, unless said purchaser at the time of conveyance has actual knowledge that the amounts due and secured by such lien have not been paid, or unless such lien statement has been recorded prior to conveyance, or unless a notice as provided in section 38-22-109 (10) has been filed within one month subsequent to completion or prior to conveyance, whichever is later; except that nothing in this section shall extend the time for recording lien statements as provided in section 38-22-109 (4), (5), and (10). For the purposes of this section, the dwelling shall be deemed complete upon conveyance and occupancy if not completed before. The lien for items of labor, work, or material which shall thereafter be furnished shall be effective and may be claimed within the time thereafter as provided in section 38-22-109 (4), (5), and (10), and their priority shall not be affected by this section.

    38-22-126 Disburser – Notice – Duty of Owner and Disburser

    (1) For the purposes of this section, the word disburser means any lender who has agreed to make any loan to the owner or contractor, the proceeds of which are to be disbursed from time to time as work upon a structure or other improvement progresses, or any part of which is to be withheld until all or any part of such work is completed; or, any person who receives funds from any lender, contractor, or owner to be disbursed from time to time as work upon a structure or other improvement progresses, or any part of which is to be withheld until all or any part of such work is completed; or, any owner who has agreed to pay any sum to any contractor from time to time as work upon a structure or other improvement progresses, or any part of which is to be withheld until all or any part of such work is completed.

    (2) It is the duty of the disburser, prior to the first disbursement, to see that there has been recorded in the office of the county clerk and recorder of the county where the land to be improved is situated, a notice stating the name and address of the owner, the names, addresses, and telephone numbers of the principal contractor, if any, and the disburser, and the legal description of the land and its address, if any. One notice may include as many parcels as desired, providing that all the information is stated as to each parcel. Such notice shall be indexed by the county clerk and recorder under the name of the owner and each principal contractor as grantors and according to address.

    (3) It is the duty of any person upon ordering or contracting for any labor, services, machinery, tools, equipment, or materials to be used as provided in section 38-22-101, upon demand of the person from whom he is so ordering or with whom he is so contracting, to furnish to such person a statement of the names, addresses, and telephone numbers of the owner or reputed owner of the land to be improved, the principal contractor, if any, and the disburser, if any, as defined in subsection (1) of this section, together with a legal description or the address, if any, of the land to be improved.

    (4) Any lien claimant who is entitled to a lien under this article may give notice to the disburser stating the property by address or legal description, or by such other description as will identify the real property; the claimant’s name, address, and telephone number; the person with whom he has contracted; and a general statement of his contract.

    (5) Such notice shall be in writing and shall be served upon the disburser by certified mail or by delivering the same personally to such disburser, or by leaving a copy at his residence or at his place of business with some person in charge.

    (6) Upon such notice being received by the disburser, it is the duty of the disburser, before disbursing any funds to the person designated in said notice with whom said claimant has contracted, to ascertain the amount due to the claimant on any disbursement date, and to pay such amount directly to the claimant out of any undisbursed funds available for and due to said person designated in said notice on such date; except that any amounts actually paid by the disburser to others for labor, services, Machinery, tools, equipment, and material performed, supplied, or furnished for such structure or improvement which are chargeable to said person designated in said notice shall not be deemed available for said person designated in said notice; and further except that if the amount claimed by said claimant is disputed by said person designated in said notice, the disburser may impound such amount until the amount due is settled by agreement or final judicial determination.

    (7) If the disburser fails to comply with subsection (6) of this section and the said claimant suffers loss by reason of said failure the disburser shall be liable to said claimant for the amount which the disburser should have paid claimant to the extent of claimant’s loss.

    38-22-127 Moneys for Lien Claims Made Trust Funds – Disbursements – Penalty

    (1) All funds disbursed to any contractor or subcontractor under any building, construction, or remodeling contract or on any construction project shall be held in trust for the payment of the subcontractors, material suppliers, or laborers who have furnished materials, services, or labor, who have a lien, or may have a lien, against the property, or who claim, or may claim, against a principal and surety under the provisions of this article and for which such disbursement was made.

    (2) This section shall not be construed so as to require any such contractor or subcontractor to hold in trust any funds which have been disbursed to him for any subcontractor, material supplier, or laborer who claims a lien against the property or claims against a principal and surety who has furnished a bond under the provisions of this article if such contractor or subcontractor has a good faith belief that such lien or claim is not valid or if such contractor or subcontractor, in good faith, claims a setoff, to the extent of such setoff.

    (3) If the contractor or subcontractor has furnished a performance or payment bond or if the owner of the property has executed a written release to the contractor or subcontractor, he need not furnish any such bond or hold such payments or disbursements as trust funds, and the provisions of this section shall not apply.

    (4) Every contractor or subcontractor shall maintain separate records of account for each project or contract, but nothing contained in this section shall be construed as requiring a contractor or subcontractor to deposit trust funds from a single project in a separate bank account solely for that project so long as trust funds are not expended in a manner prohibited by this section.

    (5) Any person who violates the provisions of subsections (1) and (2) of this section commits theft, as defined in section 18-4-401, C.R.S. 1973.

    38-22-128 Excessive Amounts Claimed

    Any person who files a lien under this article for an amount greater than is due without a reasonable possibility that said amount claimed is due and with the knowledge that said amount claimed is greater than that amount then due, and that fact is shown in any proceeding under this article, shall forfeit all rights to such lien plus such person shall be liable to the person against whom the lien was filed in an amount equal to the costs and all attorney’s fees.

    38-22-129 Principal Contractor May Provide Bond Prior to Commencement of Work

    (1) Except as provided in subsection (4) of this section, the provisions of section 38-22-101 (1) shall not apply if, at the commencement of any work upon any construction project for the improvement of real property as described in section 38-22-101 (1), a performance bond and a labor and materials payment bond, each in an amount equal to one hundred fifty percent of the contract price, are executed by the principal contractor and one or more corporate sureties authorized and qualified to do business in this state, for the protection of all contractors, subcontractors, materialmen, and laborers supplying labor or material in the prosecution of the work on such construction project for the use of each contractor, subcontractor, materialman, or laborer.

    (2) All subcontractors, materialmen, mechanics, and others who would otherwise be entitled to a lien under the provisions of section 38-22-101 (1) shall have a right of action directly against the principal contractor and his surety for the full amount due. Such action shall be brought within six months after completion of the last work on such project.

    (3) In order to be effective, a notice of such bond shall be filed with the county clerk and recorder of the county wherein such project is situate prior to the commencement of any work on the project and shall be indexed according to both the street address and the legal description of the property to be Improved. The principal contractor shall post a notice on the property that notice of such bond has been
    filed with the county clerk and recorder and shall make available copies of the bond to every contractor, subcontractor, materialman, mechanic, or laborer upon request.

    (4) If any claimant files for record a lien statement or other notice, pursuant to section 38-22-109, such lien shall be deemed released upon the filing for record of a notice executed by both the principal and all sureties acknowledging the existence of the bond furnished for such project and that said lien claimant is entitled to claim the benefits of said bond. Such acknowledgment shall be executed by the principal and sureties upon demand of the owners or any person filing a lien statement. Said notice may be delivered personally to the surety or its agent and the principal or his agent or may be mailed by certified or registered mail. If the principal and all sureties on any such bonds fail or refuse to execute and record such acknowledgment within thirty days after written demand is made upon them, all lien claimants shall be entitled to enforce their lien claims in the same manner as if no bond had been filed as
    provided in subsection (1) of this section.

    (5) In the event that any corporate surety on any bond filed pursuant to the provisions of subsection (1) of this section becomes subject to an order for relief under the federal bankruptcy code of 1978, Title 11 of the United States Code, is the subject of any state or federal corporate reorganization proceedings, makes any assignment for the benefit of creditors, or otherwise is unable to meet its financial obligations as they become due, the provisions of this section shall not apply, and any lien claimant shall be entitled to enforce such lien claim in the same manner as if no bond had been filed as provided in subsection (1) of this section.

    38-22-130 Payment of Claims by Surety

    (1) Subcontractors, materialmen, mechanics, and others who have claims aggregating two thousand dollars or less each on construction projects for the improvement of real property as described in section 38-22-101 (1) for which a bond was executed pursuant to section 38-22-129 shall serve upon the principal contractor and his surety an affidavit, supported by all reasonably available documentary evidence, that a claimant has furnished labor or materials used or performed in the prosecution of the work on such project, that he has been unpaid therefore, and the amount of such claim. If after forty-five days such affidavit remains uncontroverted, such surety shall pay to such claimant forthwith the full value of his claim.

    (2) Service of such affidavit may be accomplished by certified or registered mail, by personal delivery to such person, or by leaving a copy at his residence or at his place of business with some person in charge.

    38-22-131 Substitution of Bond Allowed

    (1) Whenever a mechanic’s lien has been filed in accordance with this article, the owner, whether legal or beneficial, of any interest in the property subject to the lien may, at any time, file with the clerk of the district court of the county wherein the property is situated a corporate surety bond or any other undertaking which has been approved by a judge of said district court.

    (2) Such bond or undertaking plus costs allowed to date shall be in an amount equal to one and one-half times the amount of the lien plus costs allowed to date and shall be approved by a judge of the district court with which such bond or undertaking is filed.

    (3) The bond or undertaking shall be conditioned that, if the lien claimant shall be finally adjudged to be entitled to recover upon the claim upon which his lien is based, the principal or his sureties shall pay to such claimant the amount of his judgment, together with any interest, costs, and other sums which such claimant would be entitled to recover upon the foreclosure of the lien.

    38-22-132 Lien to be Discharged

    Notwithstanding the provisions of section 38-22-119, upon the filing of a bond or undertaking as provided in section 38-22-131, the lien against the property shall be forthwith discharged and released in full, and the real property described in such bond or undertaking shall be released from the lien and from any action brought to foreclose such lien, and the bond or undertaking shall be substituted. The clerk of the district court with which such bond or undertaking has been filed shall issue a certificate of release which shall be recorded in the office of the clerk and recorder of the county wherein the original mechanic’s lien was filed, and the certificate of release shall show that the property has been released from the lien and from any action brought to foreclose such lien.

    38-22-133 Action to be Brought on Bond or Undertaking

    When a bond or undertaking is filed as provided in section 38-22-131, the person filing the original mechanic’s lien may bring an action upon the said bond or undertaking. Such action shall be commenced within the time allowed for the commencement of an action upon foreclosure of the lien, and the statute of limitations applicable to a lien foreclosure shall apply to the action upon the bond or undertaking as it would had no bond or undertaking been filed.

  • Connecticut, (post date:2013-04-23 22:57:48)

    Connecticut Lien Law

    Notice Req.
    Intent to Lien
    Lien Req.
    Prime Contractor

    Voluntary requirement to file an affidavit within 15 days of starting work to the project.

    The lien must be filed within 90 days of last performance of work. Enforcement must start within the 1 year period after recording the lien

    Sub Contractor

    A Notice of Intent sent to the owner and the prime contractor before filing a lien.

    The lien must be filed within 90 days of last performance of work. Enforcement must start within the 1 year period after recording the lien

    Suppliers/Other

    A Notice of Intent sent to the owner and the prime contractor before filing a lien.

    The lien must be filed within 90 days of last performance of work. Enforcement must start within the 1 year period after recording the lien

    PRIVATE PROJECTS:

    Connecticut 101

    Mechanics Lien

     

    1. How long do I have to file a claim of lien in Connecticut?

    Lien Claimant has 90 days after the day last performance of services or furnishing of materials were completed.

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    2. Do I have to file any notices before I start work on a property in Connecticut?

    No, not to begin services.

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    3. What is my last day performing services so that I can request payment?

    Filing begins the day that materials or services, are fulfilled to the contract.  The lien filing period may not extended to delay the completion of the work.

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    4. How long do I have to file for a lien of foreclosure?

    60 days if you make a final disposition of an appeal, but no later than 1 year from the date the lien was recorded.

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    5. Does my mechanic lien have priority over other liens?

    A mechanic’s lien takes priority over any other liens or mortgages.  Only liens that were recorded prior first furnishing of services or materials have priority.  All mechanic’s liens have the same priority, and if the total amount of several mechanic’s liens exceed the lienable fund, the lien claims may be divided.

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    6. Is there mandatory notice requirements in Connecticut?

    No. Only notice after performance of services is required to preserve a Claim of Lien.

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    7. Who satisfies the lien when I get paid?

    Once a lien is satisfied, and lien claimant must life a Release of Lien.  If there is failure to do so, an owner can proceed with a quiet title action, along with the claimant being issued a statutory penalty.

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    8. What cost can I claim for?

    Connecticut protects parties who furnish materials or services.  Fixtures that are not permanent to the building upon completion of services.

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    MILLER ACT STATUTE:

    The Connecticut “Little Miller Act

    Connecticut General Statutes, Title 49, Mortgages and Liens, Chapter 847, Liens, Sections 49-41 through 49-43
    __________________________________________________________________________________

    Sec. 49-41. Public buildings and public works. Bonds for protection of employees and materialmen. Performance bonds. Limits on use of owner-controlled insurance programs.

    (a) Each contract exceeding one hundred thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or a municipality shall include a provision that the person to perform the contract shall furnish to the state or municipality on or before the award date, a bond in the amount of the contract which shall be binding upon the award of the contract to that person, with a surety or sureties satisfactory to the officer awarding the contract, for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract for the use of each such person, provided no such bond shall be required to be furnished (1) in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than fifty thousand dollars, (2) in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than fifty thousand dollars, or (3) in relation to any general bid or sub-bid submitted by a consultant, as defined in section 4b-55. Any such bond furnished shall have as principal the name of the person awarded the contract.

    (b) Nothing in this section or sections 49-41a to 49-43, inclusive, shall be construed to limit the authority of any contracting officer to require a performance bond or other security in addition to the bond referred to in subsection (a) of this section, except that no such officer shall require a performance bond in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than twenty-five thousand dollars or in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than fifty thousand dollars.

    (c) No contract for the construction, alteration or repair of any public building or public work of the state or a municipality that requires a person to supply the state or municipality with a bond may include a provision that requires the person to obtain the bond from a specific surety, agent, broker or producer. No contracting officer may require that a bond be obtained from a specific surety, agent, broker or producer.

    (d) In the event that any political subdivision of the state enters into a contract described in subsection (a) of this section and fails to obtain delivery from the contractor of the bond required by this section, any person who has not been paid by the contractor for labor or materials supplied in the performance of work under the contract shall have the same legal right of action against such political subdivision of the state as such person would have had against a surety under the provisions of section 49-42. Nothing in this section shall be construed to extend liability to the state for any person’s right to payment or constitute a waiver of the state’s sovereign immunity.

    (e) (1) As used in this subsection, “owner-controlled insurance program” means an insurance procurement program under which a principal provides and consolidates insurance coverage for one or more contractors on one or more construction projects.

    (2) No contract for the construction, alteration or repair of any public building or public work of the state or a municipality may include a provision that allows or requires the state or municipality to maintain an owner-controlled insurance program, except for (A) a project approved pursuant to section 10a-109e, or (B) one or more municipal projects totaling one hundred million dollars or more (i) under the supervision of one construction manager, or (ii) located within the boundaries of a municipality if under the supervision of more than one construction manager.

    (3) Each contract or policy of insurance issued under an owner-controlled insurance program pursuant to this subsection shall provide that:

    (A) Coverage for work performed and materials furnished shall continue from the completion of the work until the date all causes of action are barred under any applicable statute of limitations.

    (B) Any notice of a change in coverage under the contract or policy or of a cancellation or refusal to renew the coverage under the contract or policy shall be provided to the principal and all contractors covered under the program.

    (C) The effective date of a (i) change in coverage under the contract or policy shall be at least thirty days after the date the principal and contractors receive the notice of change in coverage as required under subparagraph (B) of this subdivision, and (ii) cancellation or refusal to renew shall be at least sixty days after the principal and contractors receive the notice of change in coverage as required under subparagraph (B) of this subdivision.

    (4) Each principal or contractor shall disclose in the project plans or specifications at the time the principal or contractor is soliciting bids for the construction project that the project will be covered by an owner-controlled insurance program.

    Sec. 49-41a. Enforcement of payment by general contractor to subcontractor and by subcontractor to his subcontractors.

    (a) When any public work is awarded by a contract for which a payment bond is required by section 49-41, the contract for the public work shall contain the following provisions: (1) A requirement that the general contractor, within thirty days after payment to the contractor by the state or a municipality, pay any amounts due any subcontractor, whether for labor performed or materials furnished, when the labor or materials have been included in a requisition submitted by the contractor and paid by the state or a municipality; (2) a requirement that the general contractor shall include in each of its subcontracts a provision requiring each subcontractor to pay any amounts due any of its subcontractors, whether for labor performed or materials furnished, within thirty days after such subcontractor receives a payment from the general contractor which encompasses labor or materials furnished by such subcontractor.

    (b) If payment is not made by the general contractor or any of its subcontractors in accordance with such requirements, the subcontractor shall set forth his claim against the general contractor and the subcontractor of a subcontractor shall set forth its claim against the subcontractor through notice by registered or certified mail. Ten days after the receipt of that notice, the general contractor shall be liable to its subcontractor, and the subcontractor shall be liable to its subcontractor, for interest on the amount due and owing at the rate of one per cent per month. In addition, the general contractor, upon written demand of its subcontractor, or the subcontractor, upon written demand of its subcontractor, shall be required to place funds in the amount of the claim, plus interest of one per cent, in an interest-bearing escrow account in a bank in this state, provided the general contractor or subcontractor may refuse to place the funds in escrow on the grounds that the subcontractor has not substantially performed the work according to the terms of his or its employment. In the event that such general contractor or subcontractor refuses to place such funds in escrow, and the party making a claim against it under this section is found to have substantially performed its work in accordance with the terms of its employment in any arbitration or litigation to determine the validity of such claim, then such general contractor or subcontractor shall pay the attorney’s fees of such party.

    (c) No payment may be withheld from a subcontractor for work performed because of a dispute between the general contractor and another contractor or subcontractor.

    (d) This section shall not be construed to prohibit progress payments prior to final payment of the contract and is applicable to all subcontractors for material or labor whether they have contracted directly with the general contractor or with some other subcontractor on the work.

    Sec. 49-41b. Release of payments on construction projects.

    When any public work is awarded by a contract for which a payment bond is required by section 49-41 and such contract contains a provision requiring the general or prime contractor under such contract to furnish a performance bond in the full amount of the contract price, the following shall apply:

    (1) In the case of a contract advertised by the state Department of Public Works or any other state agency, except as specified in subdivision (2) of this section, (A) the awarding authority shall not withhold more than ten per cent from any periodic or final payment which is otherwise properly due to the general or prime contractor under the terms of such contract and (B) any such general or prime contractor shall not withhold from any subcontractor more than (i) ten per cent from any periodic or final payment which is otherwise due to the subcontractor or (ii) the amount withheld by the awarding authority from such general or prime contractor under subparagraph (A) of this subdivision, whichever is less. Notwithstanding the provisions of this subdivision (1), the awarding authority shall establish an early release program with respect to periodic payments by general or prime contractors to subcontractors.

    (2) In the case of a contract advertised by the state Department of Transportation, (A) the department shall not withhold more than two and one-half per cent from any periodic or final payment which is otherwise properly due to the general or prime contractor under the terms of such contract, and (B) any such general or prime contractor shall not withhold more than two and one-half per cent from any periodic or final payment which is otherwise due to any subcontractor.

    (3) If the awarding authority is a municipality, (A) it shall not withhold more than five per cent from any periodic or final payment which is otherwise properly due to the general or prime contractor under the terms of such contract, and (B) any such general or prime contractor shall not withhold more than five per cent from any periodic or final payment which is otherwise due to any subcontractor.

    Sec. 49-41c. State contractor to make payment to subcontractor within thirty days.

    Any person contracting with the state shall make payment to any subcontractor employed by such contractor within thirty days of payment by the state to the contractor for any work performed or, in the case of any contract entered into on or after October 1, 1986, for materials furnished by such subcontractor, provided such contractor may withhold such payment if such contractor has a bona fide reason for such withholding and if such contractor notifies the affected subcontractor, in writing, of his reasons for withholding such payment and provides the state board, commission, department, office, institution, council or other agency through which such contractor had made the contract, with a copy of the notice, within such thirty-day period.

    Sec. 49-42. Enforcement of right to payment on bond. Suit on bond, procedure and judgment.

    (a) Any person who performed work or supplied materials for which a requisition was submitted to, or for which an estimate was prepared by, the awarding authority and who does not receive full payment for such work or materials within sixty days of the applicable payment date provided for in subsection (a) of section 49-41a, or any person who supplied materials or performed subcontracting work not included on a requisition or estimate who has not received full payment for such materials or work within sixty days after the date such materials were supplied or such work was performed, may enforce such person’s right to payment under the bond by serving a notice of claim on the surety that issued the bond and a copy of such notice to the contractor named as principal in the bond not later than one hundred eighty days after the last date any such materials were supplied or any such work was performed by the claimant. For the payment of retainage, as defined in section 42-158i, such notice shall be served not later than one hundred eighty days after the applicable payment date provided for in subsection (a) of section 49-41a. The notice of claim shall state with substantial accuracy the amount claimed and the name of the party for whom the work was performed or to whom the materials were supplied, and shall provide a detailed description of the bonded project for which the work or materials were provided. If the content of a notice prepared in accordance with subsection (b) of section 49-41a complies with the requirements of this section, a copy of such notice, served not later than one hundred eighty days after the date provided for in this section upon the surety that issued the bond and upon the contractor named as principal in the bond, shall satisfy the notice requirements of this section. Not later than ninety days after service of the notice of claim, the surety shall make payment under the bond and satisfy the claim, or any portion of the claim which is not subject to a good faith dispute, and shall serve a notice on the claimant denying liability for any unpaid portion of the claim. The notices required under this section shall be served by registered or certified mail, postage prepaid in envelopes addressed to any office at which the surety, principal or claimant conducts business, or in any manner in which civil process may be served. If the surety denies liability on the claim, or any portion thereof, the claimant may bring action upon the payment bond in the Superior Court for such sums and prosecute the action to final execution and judgment. An action to recover on a payment bond under this section shall be privileged with respect to assignment for trial. The court shall not consolidate for trial any action brought under this section with any other action brought on the same bond unless the court finds that a substantial portion of the evidence to be adduced, other than the fact that the claims sought to be consolidated arise under the same general contract, is common to such actions and that consolidation will not result in excessive delays to any claimant whose action was instituted at a time significantly prior to the motion to consolidate. In any such proceeding, the court judgment shall award the prevailing party the costs for bringing such proceeding and allow interest at the rate of interest specified in the labor or materials contract under which the claim arises or, if no such interest rate is specified, at the rate of interest as provided in section 37-3a upon the amount recovered, computed from the date of service of the notice of claim, provided, for any portion of the claim which the court finds was due and payable after the date of service of the notice of claim, such interest shall be computed from the date such portion became due and payable. The court judgment may award reasonable attorneys fees to either party if upon reviewing the entire record, it appears that either the original claim, the surety’s denial of liability, or the defense interposed to the claim is without substantial basis in fact or law. Any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing the payment bond shall have a right of action upon the payment bond upon giving written notice of claim as provided in this section.

    (b) Every suit instituted under this section shall be brought in the name of the person suing, in the superior court for the judicial district where the contract was to be performed, irrespective of the amount in controversy in the suit, but no such suit may be commenced after the expiration of one year after the last date that materials were supplied or any work was performed by the claimant, except that any such suit solely seeking payment for retainage, as defined in section 42-158i, shall be commenced not later than one year after the date payment of such retainage was due, pursuant to the provisions of subsection (a) of section 49-41a.

    (c) The word “material” as used in sections 49-33 to 49-43, inclusive, shall include construction equipment and machinery that is rented or leased for use (1) in the prosecution of work provided for in the contract within the meaning of sections 49-33 to 49-43, inclusive, or (2) in the construction, raising or removal of any building or improvement of any lot or in the site development or subdivision of any plot of land within the meaning of sections 49-33 to 49-39, inclusive.

    Sec. 49-43. Certified copies of bonds and contracts for public works.

    Each agency of the state or of any subdivision thereof, in charge of the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof, shall furnish, to any person making application therefor who submits an affidavit that he has supplied labor or materials for the work and payment therefor has not been made or that he is being sued on the bond, a copy of the bond and the contract for which it was given, certified by the administrative head of the agency, which copy shall be prima facie evidence of the contents, execution and delivery of the original. Applicants shall pay for those certified copies such fees as are provided in section 1-212.

    LIEN STATUTE:

    TITLE 49 MORTGAGES AND LIENS

    CHAPTER 847 LIENS

    Sec. 49-32 Liens in Favor of the United States [Repealed]
    Sec. 49-32a Federal Liens
    Sec. 49-33 Mechanic’s Lien
    Sec. 49-34 Certificate of Lien to be Recorded and Notice Given to Owner
    Sec. 49-35 Notice of Intent
    Sec. 49-35a Application for Reduction or Discharge
    Sec. 49-35b Burden of Proof at Hearing
    Sec. 49-35c Appeal
    Sec. 49-35d Validation of Lien Recorded Prior to April 22, 1975
    Sec. 49-36 Liens Limited; Apportionment; Payments to Original Contractor
    Sec. 49-37 Dissolution of Mechanic’s Lien by Substitution of Bond
    Sec. 49-37a Lien Validated When Bond Substituted Prior to April 22, 1975
    Sec. 49-38 Lien on Railroad for Services or Materials in Construction
    Sec. 49-39 Time Limitation of Mechanic’s Lien
    Sec. 49-40 Record of Discharge of Mechanic’s and Judgment Liens [Repealed]
    Sec. 49-40a Mechanic’s Liens Expired by Limitation of Time
    Sec. 49-40b Transferred to Chapter 906, Sec. 52-380c
    Sec. 49-41 Public Structures
    Sec. 49-41a Enforcement of Payment by General Contractor to Subcontractor and by Subcontractor to His Subcontractors
    Sec. 49-41b Release of Payments on Public Works Construction Projects
    Sec. 49-41c State Contractor to Make Payment to Subcontractor Within Thirty Days
    Sec. 49-42 Enforcement of Right to Payment on Bond
    Sec. 49-43 Certified Copies of Bonds and Contracts for Public Works
    Secs. 49-44 to 49-46 Recording of Judgment Lien; When It Holds from Attachment [Repealed]
    Sec. 49-46a Transferred to Chapter 906, Sec. 52-380d
    Sec. 49-47 Transferred to Chapter 906, Sec. 52-380h
    Sec. 49-47a Form of Mechanic’s Lien Foreclosure Certificates
    Sec. 49-48 Transferred to Chapter 906, Sec. 52-380i
    Sec. 49-49 When Insolvency Proceedings Set Aside Lien [Repealed]
    Sec. 49-50 Transferred to Chapter 906, Sec. 52-380f
    Sec. 49-51 Discharge of Invalid Lien
    Sec. 49-52 Pendency of Action to Foreclose Lien on Personalty not to be Notice
    Sec. 49-53 Duty of Officer Serving Process in Such Action
    Sec. 49-54 Transferred to Chapter 906, Sec. 52-380b
    Sec. 49-58 Lien Not to Exceed Contract Price
    Sec. 49-59 Discharge of Liens
    Sec. 49-61 Release of Artificer’s Lien on Substitution of Bond
    Sec. 49-62 Form of Application
    Sec. 49-63 Notice of Application
    Sec. 49-64 Form of Bond
    Sec. 49-65 Dissolution of Lien to be Recorded
    Sec. 49-66 Pleadings May be Amended
    Sec. 49-67 Limitation of Action on Bond
    Sec. 49-86 Bond in Lieu of Attachment
    Sec. 49-87 Certificate of Dissolution of Bond, Filing
    Sec. 49-88 Duration of Lien
    Sec. 49-89 When Judgment Lien to Date Back to Notice
    Sec. 49-90 Certificate of Withdrawal of Suit or Nonsuit to be Issued by Court Clerk
    Sec. 49-91 Certificate of Removal of Lien
    Sec. 49-92 Other Lien Rights Not Affected [Repealed]
    Sec. 49-92a Purchaser’s Lien
    Sec. 49-92b Dissolution on Substitution of Bond
    Sec. 49-92c Limitation of Lien
    Sec. 49-92d Record of Discharge
    Sec. 49-92e Action to Claim Discharge
    Sec. 49-92f Certificate of Removal of Lien

    GENERAL STATUTES OF CONNECTICUT

    Revised to 1997

    TITLE 49 MORTGAGES AND LIENS

    CHAPTER 847 LIENS

    Sec. 49-32 Liens in Favor of the United States

    Sec. 49-32 is repealed.

    Sec. 49-32a Federal Liens

    (a) (1) Notices of liens upon real property for taxes payable to the United States and notices of liens upon real property for costs and damages payable to the United States, and certificates and notices affecting such liens shall be filed in the office of the clerk of the town in which the real property subject to a federal tax lien or other federal lien is situated. (2) Notices of liens upon personal property, whether tangible or intangible, for taxes payable to the United States and for costs and damages payable to the United States and certificates and notices affecting such liens shall be filed in the office of the Secretary of the State in accordance with subsection (1) of section 42a-9-403.
    (b) Certification by the Secretary of the Treasury of the United States or his delegate of notices of liens, certificates or other notices affecting tax liens or other federal liens entitles them to be filed and no other attestation, certification or acknowledgment is necessary.
    (c) (1) If a notice of federal tax lien or other federal lien, a refiling of a notice of tax lien or other federal lien or a notice of revocation of any certificate described in subdivision (2) is presented to the filing officer and (A) he is the Secretary of the State, he shall cause the notice to be marked, held and indexed in accordance with the provisions of subsection (4) of section 42a-9-403, as if the notice were a financing statement within the meaning of that section; or (B) he is a town clerk, he shall endorse thereon his identification and the date and time of receipt and forthwith record it in accordance with section 42a-9-409. (2) If a certificate of release, nonattachment, discharge or subordination of any tax lien or other federal lien is presented to the Secretary of the State for filing he shall(A) cause a certificate of release or nonattachment to be marked, held and indexed as if the certificate were a termination statement within the meaning of the Uniform Commercial Code, and (B) cause a certificate of discharge or subordination to be held, marked and indexed as if the certificate were a release of collateral within the meaning of the Uniform Commercial Code. (3) If a refiled notice of federal tax lien or other federal lien referred to in subdivision (1) or any of the certificates or notices referred to in subsection (b) is presented for filing with any other filing officer specified in subsection (a), he shall record it in accordance with subsection (2) of section 42a-9-409 if the original was recorded or, if the original was filed, permanently attach the refiled notice or the certificate to the original notice of lien and enter the refiled notice or the certificate with the date of filing in any alphabetical federal tax lien index or other federal lien index on the line where the original notice of lien is entered. (4) Upon request of any person, the filing officer shall issue his certificate showing whether there is on file, on the date and hour stated therein, any notice of federal tax lien or other federal lien or certificate or notice affecting the lien, filed on or after July 1, 1967, naming a particular person, and if a notice or certificate is on file, giving the date and hour of filing of each notice or certificate. The fee for such a certificate and for a copy of any notice of federal tax lien or other federal lien or notice or certificate affecting a federal tax lien or other federal lien shall be computed in accordance with subsection (2) of section 42a-9-407.
    (d) Except as provided by subsection (5) of section 42a-9-403, the fee for filing and indexing each notice of lien or certificate or notice affecting the tax lien or other federal lien is:
    (1) For a tax lien or other federal lien on real estate, as provided in section 7-34a; (2) for a tax lien on tangible and intangible personal property, three dollars; (3) for all other notices, including a certificate of release, discharge, subordination or nonattachment, one dollar.

    Sec. 49-33 Mechanic’s Lien Precedence. Rights of subcontractors.

    (a) If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.
    (b) The claim is a lien on the land, building and appurtenances or lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then on the plot of land and the claim takes precedence over any other encumbrance originating after the commencement of the services, or the furnishing of any such materials, subject to apportionment as provided in section 49-36.
    (c) If any such liens exist in favor of two or more persons for materials furnished or services rendered in connection with the same construction, raising, removal or repairs of any building or any of its appurtenances, or in the improvement of any lot, or in the site development or subdivision of any
    plot of land, no one of those persons shall have any priority over another except as hereinafter provided.
    (d) If any instrument constituting a valid encumbrance upon such land other than a mechanic’s lien is filed for record while the building is being constructed, raised, removed or repaired, or the lot is being improved, or the plot of land is being improved or subdivided, all such mechanic’s liens originating prior to the filing of that instrument for record take precedence over that encumbrance and no such mechanic’s lien shall have priority over any other such mechanic’s lien. That encumbrance and all such mechanic’s liens shall take precedence over any mechanic’s lien which originates for materials furnished or services rendered after the filing of that instrument for record, but no one of the mechanic’s liens originating after the filing of that instrument for record has precedence over another. If any lienor waives or releases his lien or claim of precedence to any such encumbrance, that lien shall be classed with and have no priority over liens originating subsequent to that encumbrance.
    (e) A mechanic’s lien shall not attach to any such building or its appurtenances or to the land on which the same stands or to any lot or to any plot of land, in favor of any subcontractor to a greater extent in the whole than the amount which the owner has agreed to pay to any person through whom the subcontractor claims subject to the provisions of section 49-36.
    (f) Any such subcontractor shall be subrogated to the rights of the person through whom the Subcontractor claims, except that the subcontractor shall have a mechanic’s lien or right to claim a mechanic’s lien in the event of any default by that person subject to the provisions of sections 49-34, 49-35 and 49-36, provided the total of such lien or liens shall not attach to any building or its appurtenances, or to the land on which the same stands or to any lot or to any plot of land, to a greater amount in the whole than the amount by which the contract price between the owner and the person through whom the subcontractor claims exceeds the reasonable cost, either estimated or actual, as the case may be, of satisfactory completion of the contract plus any damages resulting from such default for which that person might be held liable to the owner and all bona fide payments, as defined in section 49-36, made by the owner before receiving notice of such lien or liens.
    (g) In the case of the removal of any building, no such mechanic’s lien shall take precedence over any encumbrance upon the land to which such building has been removed which accrued before the building was removed upon the land.
    (h) Any mechanic’s lien may be foreclosed in the same manner as a mortgage.

    Sec. 49-34 Certificate of Lien to be Recorded and Notice Given to Owner

    A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials,
    (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and
    (2) within the same time, or prior to the lodging of the certificate but not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35.

    Sec. 49-35 Notice of Intent Liens of subcontractors and materialmen.

    (a) No person other than the original contractor for the construction, raising, removal or repairing of the building, or the development of any lot, or the site development or subdivision of any plot of land or a subcontractor whose contract with the original contractor is in writing and has been assented to in writing by the other party to the original contract, is entitled to claim any such mechanic’s lien, unless, after commencing, and not later than ninety days after ceasing, to furnish materials or render services for such construction, raising, removal or repairing, he gives written notice to the owner of the building, lot or plot of land and to the original contractor that he has furnished or commenced to furnish materials, or rendered or commenced to render services, and intends to claim a lien therefore on the building, lot or plot of land; provided an original contractor shall not be entitled to such notice, unless, not later than fifteen days after commencing the construction, raising, removal or repairing of the building, or the development of any lot, or the site development or subdivision of any plot of land, such original contractor lodges with the town clerk of the town in which the building, lot or plot of land is situated an affidavit in writing, which shall be recorded by the town clerk with deeds of land,

    (1) stating the name under which such original contractor conducts business,
    (2) stating his business address and
    (3) describing the building, lot or plot of land.

    The right of any person to claim a lien under this section shall not be affected by the failure of such affidavit to conform to the requirements of this section. The notice shall be served upon the owner or original contractor, if such owner or original contractor resides in the same town in which the building is being erected, raised, removed or repaired or the lot is being improved, or the plot of land is being improved or subdivided, by any indifferent person, sheriff or other proper officer, by leaving with such owner or original contractor or at his usual place of abode a true and attested copy thereof. If the owner or original contractor does not reside in such town, but has a known agent therein, the notice may be so served upon the agent, otherwise it may be served by any indifferent person, sheriff or other proper officer, by mailing a true and attested copy of the notice by registered or certified mail to the owner or original contractor at the place where he resides. If such copy is returned unclaimed, notice to such owner or original contractor shall be given by publication in accordance with the provisions of section 1-2. When there are two or more owners, or two or more original contractors, the notice shall be so served on each owner and on each original contractor. The notice, with the return of the person who served it endorsed thereon, shall be returned to the original maker of the notice within said period of ninety days.
    (b) No subcontractor, without a written contract complying with the provisions of this section, and no person who furnishes material or renders services by virtue of a contract with the original contractor or with any subcontractor, may be required to obtain an agreement with, or the consent of, the owner of the land, as provided in section 49-33, to enable him to claim a lien under this section.

    Sec. 49-35a Application for Reduction or Discharge Forms. Hearing. Entry fee.

    (a) Whenever one or more mechanics’ liens are placed upon any real estate pursuant to sections 49-33, 49-34, 49-35 and 49-38, the owner of the real estate, if no action to foreclose the lien is then pending before any court, may make application, together with a proposed order and summons, to the superior court for the judicial district in which the lien may be foreclosed under the provisions of section 51-345, or to any judge thereof, that a hearing or hearings be held to determine whether the lien or liens should be discharged or reduced. The court or judge shall thereupon order reasonable notice of the application to be given to the lienor or lienors named therein and, if the application is not made by all owners of the real estate as may appear of record, shall order reasonable notice of the application to be given to all other such owners, and shall set a date or dates for the hearing or hearings to be held thereon. If the lienor or lienors or any owner entitled to notice is not a resident of this state, the notice shall be given by personal service, registered or certified mail, publication or such other method as the court or judge shall direct. At least four days notice shall be given to the lienor, lienors or owners entitled to notice prior to the date of the hearing.
    (b) The application, order and summons shall be substantially in the following form:

    APPLICATION FOR DISCHARGE OR REDUCTION OF MECHANIC’S LIEN

    To the ____ Court of ____________ The undersigned represents:

    1. That ____________ is the owner of the real estate described in Schedule A attached hereto.
    2. That the names and addresses of all other owners of record of such real estate are as follows:
    3. That on or about __________, (date) ____, (name of lienor) of ____ (address of lienor) placed a mechanic’s lien on such real estate and gave notice thereof.
    4. That there is not probable cause to sustain the validity of such lien (or: That such lien is excessive).
    5. That the applicant seeks an order for discharge (or reduction) of such lien. Name of Applicant By __ His Attorney ORDER The above application having been presented to the court, it is hereby ordered, that a hearing be held thereon at __ a.m. and that the applicant give notice to the following persons:

    (Names and addresses of persons entitled to notice) of the pendency of said application and of the time when it will be heard by causing a true and attested copy of the application, and of this order to be served upon such persons by some proper officer or indifferent person on or before ___ and that due return of such notice be made to this court. Dated at __ this __ day of __ 20__ SUMMONS To the sheriff of the county of ___, his deputy, or either constable of the town of ___, in said county, Greeting: By authority of the state of Connecticut, you are hereby commanded to serve a true and attested copy of the above application and order upon ___, of ___ by leaving the same in his hands or at his usual place of abode (or such other notice as ordered by the court) on or before ___ Hereof fail not but due service and return make. Dated at ___ this __ day of ___ 20__ Commissioner of the Superior Court

    (1) The clerk upon receipt of all the documents in duplicate, if he finds them to be in proper form, shall fix a date for a hearing on the application and sign the order of hearing and notice. An entry fee of twenty dollars shall then be collected and a copy of the original document shall be placed in the court file.
    (2) The clerk shall deliver to the applicant’s attorney the original of the documents for service. Service having been made, the original documents shall be returned to the court with the endorsement by the officer of his doings.
    (c) If an action for foreclosure of the lien is pending before any court, any party to that action may at any time prior to trial, unless an application under subsection (a) of this section has previously been ruled upon, move that the lien be discharged or reduced. d) No more than one application under subsection (a) hereof or motion under subsection (c) hereof shall be ruled upon with respect to any single mechanic’s lien, except that the foregoing shall not preclude an application or motion by a person not given notice of the prior application or not a party to the action at the time the prior motion was ruled upon.

    Sec. 49-35b Burden of Proof at Hearing Authority of court.

    (a) Upon the hearing held on the application or motion set forth in section 49-35a, the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien. Any person entitled to notice under section 49-35a may appear, be heard and prove by clear and convincing evidence that the validity of the lien should not be sustained or the amount of the lien claimed is excessive and should be reduced.
    (b) Upon consideration of the facts before it, the court or judge may:
    (1) Deny the application or motion if probable cause to sustain the validity of the lien is established; or
    (2) order the lien discharged if(A) probable cause to sustain its validity is not established, or(B) by clear and convincing evidence its invalidity is established; or
    (3) reduce the amount of the lien if the amount is found to be excessive by clear and convincing evidence; or
    (4) order the lien discharged or reduce the amount of the lien conditioned upon the posting of a bond, with surety, in a sum deemed sufficient by the judge to indemnify the lienor for any damage which may occur by the discharge or the reduction of amount.

    Sec. 49-35c Appeal

    (a) Any order entered as provided in subsection (b) of section 49-35b shall be deemed a final judgment for the purpose of appeal.
    (b) No appeal may be taken from the order except within seven days thereof. The effect of the order shall be automatically stayed for the seven-day period. If an appeal is taken within the seven-day period, the party taking the appeal may, within that period, file an application with the clerk of the court in which the order was issued, requesting a stay of the effect of the order pending the appeal, which application shall set forth the reasons for the request. A copy of the application shall be sent to each other party by the applicant. Upon the filing of the application, the effect of the order shall be further stayed until a decision is rendered thereon. A hearing on the application shall be held promptly. The order shall be stayed if the party taking the appeal posts a bond, as provided in subsection (c) of this section.
    (c) Upon the hearing on the application, the court shall:
    (1) Upon motion of the party taking the appeal, set a bond with surety for the stay of the order as provided in subsection (b) of this section, in an amount which the court deems sufficient to indemnify the adverse party for any damages which may result from the stay. If the party taking the appeal gives that bond the order shall be stayed; or
    (2) grant the stay; or
    (3) deny the stay; or
    (4) condition the granting of the stay upon the giving of such a bond.
    (d) Any order of discharge or reduction or any order of any such stay shall take effect upon recording of a certified copy thereof in the office of the town clerk in which such lien was originally recorded. The clerk of the court in which any such order is issued shall not deliver any certified copies thereof until the time for taking an appeal has elapsed or, if an appeal is taken and an application for a stay of the order is filed, until such time as a decision granting or denying the stay has been rendered.

    Sec. 49-35d Validation of Lien Recorded Prior to April 22, 1975

    (a) Any person who prior to April 22, 1975, placed a mechanic’s lien upon any real estate pursuant to sections 49-33, 49-34, 49-35 and 49-38, which was not released or discharged on such date, may validate such lien by filing a new certificate of mechanic’s lien and serving a true and attested copy thereof pursuant to the provisions of section 49-34, and, if applicable, by serving the notice required by section 49-35, within ninety days from June 25, 1975, and such mechanic’s lien shall be deemed to have originated as of the effective date of the original mechanic’s lien so validated, provided, such validation shall not affect the interest of any person acquiring an interest in such real estate as an owner or mortgagee from April 22, 1975, through June 25, 1975, inclusive. Such validation shall not affect the interest of any person to whom such validation would be in violation of the constitution of the United States or the constitution of the state of Connecticut, but in such event such lien shall have no less validity than if the lienor had commenced the rendering of services or the furnishing of materials on June 25, 1975. Any such lien not validated pursuant to this section shall be invalid and discharged as a matter of law.
    (b) Any person who would have been entitled under the terms of sections 49-33, 49-34, 49-35 and 49-38, to claim a mechanic’s lien between April 22, 1975, and June 25, 1975, inclusive, but had not done so, may file a certificate of such lien and serve a true and attested copy thereof as required by section 49-34 and, if applicable, serve the notice required by section 49-35, within the time provided by section 49-34, or within ninety days of June 25, 1975, whichever period is longer. For purposes of determining when such person’s mechanic’s lien took effect, such person shall be deemed to have commenced the rendering of services or the furnishing of materials as of June 25, 1975, but for purposes of determining the amount of such lien such person shall be deemed to have commenced the rendering of services or the furnishing of materials as of the actual date of such commencement.
    (c) Any person who between April 22, 1975 and June 25, 1975, inclusive, placed a mechanic’s lien upon any real estate pursuant to sections 49-33, 49-34 and 49-38, which was not released or discharged on June 25, 1975, may file a new certificate of such lien and serve a true and attested copy thereof pursuant to the provisions of section 49-34, and, if applicable, may serve the notice required by section 49-35, within ninety days of June 25, 1975. For purposes of determining when such person’s mechanic’s lien took effect, such person shall be deemed to have commenced the rendering of services or the furnishing of materials as of June 25, 1975, but for purposes of determining the amount of such lien such person shall be deemed to have commenced the rendering of services or the furnishing of materials as of the actual date of such commencement.

    Sec. 49-36 Liens Limited; Apportionment; Payments to OriginalContractor

    (a) No mechanic’s lien may attach to any building or its appurtenances, or to the land on which the same stands, or any lot, or any plot of land, in favor of any person, to a greater amount in the whole than the price which the owner agreed to pay for the building and its appurtenances or the development of any such lot, or the development of any such plot of land.
    (b) When there are several claimants and the amount of their united claims exceeds that price, the claimants, other than the original contractor, shall be first paid in full, if the amount of that price is sufficient for that purpose; but, if not, it shall be apportioned among the claimants having the liens, other than the original contractor, in proportion to the amount of the debts due them respectively; and the court having jurisdiction thereof, on application of any person interested, may direct the manner in which the claims shall be paid.
    (c) In determining the amount to which any lien or liens may attach upon any land or building, or lot or plot of land, the owner of the land or building or lot or plot of land shall be allowed whatever payments he has made, in good faith, to the original contractor or contractors, before receiving notice of the lien or liens. No payments made in advance of the time stipulated in the original contract may be considered as made in good faith, unless notice of intention to make the payment has been given in writing to each person known to have furnished materials or rendered services at least five days before the payment is made.

    Sec. 49-37 Dissolution of Mechanic’s Lien by Substitution of Bond Joinder of actions on claim and bond.

    (a) Whenever any mechanic’s lien has been placed upon any real estate pursuant to sections 49-33, 49-34 and 49-35, the owner of that real estate, or any person interested in it, may make an application to any judge of the Superior Court that the lien be dissolved upon the substitution of a bond with surety, and the judge shall order reasonable notice to be given to the lienor of the application. If the lienor is not a resident of the state, the judge may order notice to be given by publication, registered or certified letter or personal service. If the judge is satisfied that the applicant in good faith intends to contest the lien, he shall, if the applicant offers a bond, with sufficient surety, conditioned to pay to the lienor or his assigns such amount as a court of competent jurisdiction may adjudge to have been secured by the lien, with interest and costs, order the lien to be dissolved and such bond substituted for the lien and shall return the application, notice, order and bond to the clerk of the superior court for the judicial district wherein the lien is recorded; and, if the applicant, within ten days from such return, causes a copy of the order, certified by the clerk, to be recorded in the town clerk’s office where the lien is recorded, the lien shall be dissolved. Whenever a bond is substituted for any lien after an action for the foreclosure of a lien has been commenced, the plaintiff in the foreclosure may amend his complaint, without costs, so as to make the action one upon the bond with which the plaintiff may join an action to recover upon his claim. Whenever a bond is substituted for any lien before an action for the foreclosure of the lien has been commenced, the plaintiff may join the action upon the bond with an action to recover upon his claim. Whenever a bond has been substituted for any lien, pursuant to this section, unless an action is brought to recover upon the bond within one year from the date of recording the certificate of lien, the bond shall be void.
    (b) Whenever a bond has been substituted for any lien pursuant to this section:
    (1) The principal or surety on the bond, if no action to recover on the bond is then pending before any court, may make application, together with a proposed order and summons, to the superior court for the judicial district in which the action may be brought, or to any judge of the court, that a hearing be held to determine whether the lien for which the bond was substituted should be declared invalid or reduced in amount. The court or judge shall thereupon order reasonable notice of the application to be given to the obligee on the bond and, if the application is not made by all principals or sureties on the bond, shall order reasonable notice of the application to be given to all other such principals and sureties, and shall set a date for the hearing to be held thereon. If the obligee or any principal or surety entitled to notice is not a resident of this state, the notice shall be given by personal service, registered or certified mail, publication or such other method as the court or judge shall direct. At least four days notice shall be given to the obligee, principal and surety entitled to notice prior to the date of the hearing.
    (2) The application, order and summons shall be substantially in the form established by subsection (b) of section 49-35a, adapted accordingly. The provisions of subdivisions (1) and (2) of subsection (b) of section 49-35a, shall apply.
    (3) If an action on the bond is pending before any court, any party to that action may at any time prior to trial, unless an application under subdivision (1) of this subsection has previously been ruled upon, move that the lien for which the bond was substituted be declared invalid or reduced in amount.
    (4) No more than one application or motion under subdivision (1) or (3) of this subsection may be ruled upon with respect to any single mechanic’s lien, except that the foregoing does not preclude an application or motion by a person not given notice of the prior application or not a party to the action at the time the prior motion was ruled upon. Nothing in this subdivision shall be construed as permitting a surety on a bond to bring an application for discharge or reduction, if the validity of the lien has previously been ruled upon pursuant to section 49-35a.
    (5) Upon the hearing held on the application or motion set forth in this subsection, the obligee on the bond shall first be required to establish that there is probable cause to sustain the validity of the lien. Any person entitled to notice under subdivision (1) of this section may appear, be heard and prove by clear and convincing evidence that the validity of the lien should not be sustained or that the amount of the lien claimed is excessive and should be reduced. Upon consideration of the facts before it, the court or judge may:

    (A) Deny the application or motion if probable cause to sustain the validity of the lien is established; or
    (B) order that the bond is void if(i) probable cause to sustain the validity of the lien is not established, or(ii) by clear and convincing evidence, the invalidity of the lien is established; or
    (C) order the amount of the bond reduced if the amount of the lien is found to be excessive by clear and convincing evidence.

    (6) Any order entered upon an application set forth in subdivision(1) of this subsection shall be deemed a final judgment for the purpose of appeal.

    Sec. 49-37a Lien Validated When Bond Substituted Prior to April 22, 1975

    Whenever prior to April 22, 1975, a bond has been substituted for any lien pursuant to section 49-37, which bond was in effect on said date, the obligee on such bond may validate the lien for which the bond was substituted by serving, by registered or certified mail, upon the principal and surety on such bond a copy of the certificate of mechanic’s lien which was originally filed, within ninety days of June 25, 1975. Any such lien not validated pursuant to this section shall be deemed to have been invalid and discharged as a matter of law.

    Sec. 49-38 Lien on Railroad for Services or Materials in Construction

    If any person has a claim for materials furnished or services rendered for the construction of any railroad, or any of its appurtenances, under any contract with or approved by the corporation owning or managing it, the railroad shall, with its real estate, right-of-way, material, equipment, rolling stock and franchises, be subject to the payment of that claim; and that claim shall be a lien on the railroad, railroad property and franchises, and the lien shall be asserted, perfected and foreclosed in all respects in accordance with the provisions of sections 49-34 to 49-37, inclusive, except that the certificates of the lien and of its discharge shall be filed in the office of the Secretary of the State, who shall record them in a book kept for that purpose.

    Sec. 49-39 Time Limitation of Mechanic’s Lien

    Action to foreclose privileged. A mechanic’s lien shall not continue in force for a longer period than one year after the lien has been perfected, unless the party claiming the lien commences an action to foreclose it, by complaint, cross-complaint or counterclaim, and records a notice of lis pendens in evidence thereof on the land records of the town in which the lien is recorded within one year from the date the lien was recorded or within sixty days of any final disposition of an appeal taken in accordance with section 49-35c, whichever is later. Each such lien, after the expiration of the one-year period or sixty-day period, as the case may be, without action commenced and notice thereof filed as aforesaid, shall be invalid and discharged as a matter of law. An action to foreclose a mechanic’s lien shall be privileged in respect to assignment for trial. With respect to any such lien which was validated in accordance with the provisions of section 49-37a, the one-year period or sixty-day period, as the case may be, shall toll from the date of the validation.

    Sec. 49-40 Record of Discharge of Mechanic’s and Judgment Liens

    Sec. 49-40 is repealed.

    Sec. 49-40a Mechanic’s Liens Expired by Limitation of Time

    Any mechanic’s lien which has expired because of failure to comply with the time limitations of section 49-39 is automatically extinguished and the continued existence of the lien unreleased of record in no way affects the record owner’s title nor the marketability of the same.

    Sec. 49-40b Transferred to Chapter 906, Sec. 52-380c

    Sec. 49-41 Public Structures Bonds for protection of employees and materialmen.

    (a) Each contract exceeding twenty-five thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof shall include a provision that the person to perform the contract shall furnish to the state or the subdivision on or before the award date, a bond in the amount of the contract which shall be binding upon the award of the contract to that person, with a surety or sureties satisfactory to the officer awarding the contract, for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract for the use of each such person, provided no such bond shall be required to be furnished
    (1) in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than twenty-five thousand dollars,
    (2) in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than fifty thousand dollars, or
    (3) in relation to any general bid or sub-bid submitted by a consultant, as defined in section 4b-55. Any such bond furnished shall have as principal the name of the person awarded the contract.
    (b) Nothing in this section or sections 49-41a to 49-43, inclusive, shall be construed to limit the authority of any contracting officer to require a performance bond or other security in addition to the bond herein referred to, except that no such officer shall require a performance bond in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than twenty-five thousand dollars or in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than fifty thousand dollars.

    Sec. 49-41a Enforcement of Payment by General Contractor to Subcontractor and by Subcontractor to His Subcontractors

    (a) When any public work is awarded by a contract for which a payment bond is required by section 49-41, the contract for the public work shall contain the following provisions:
    (1) A requirement that the general contractor, within thirty days after payment to the contractor by the state or a municipality, pay any amounts due any subcontractor, whether for labor performed or materials furnished, when the labor or materials have been included in a requisition submitted by the contractor and paid by the state or a municipality;
    (2) a requirement that the general contractor shall include in each of its subcontracts a provision Requiring each subcontractor to pay any amounts due any of its subcontractors, whether for labor performed or materials furnished, within thirty days after such subcontractor receives a payment from the general contractor which encompasses labor or materials furnished by such subcontractor.
    (b) If payment is not made by the general contractor or any of its subcontractors in accordance with such requirements, the subcontractor shall set forth his claim against the general contractor and the subcontractor of a subcontractor shall set forth its claim against the subcontractor through notice by registered or certified mail. Ten days after the receipt of that notice, the general contractor shall be liable to its subcontractor, and the subcontractor shall be liable to its subcontractor, for interest on the amount due and owing at the rate of one per cent per month. In addition, the general contractor, upon written demand of its subcontractor, or the subcontractor, upon written demand of its subcontractor, shall be required to place funds in the amount of the claim, plus interest of one per cent, in an interest-bearing escrow account in a bank in this state, provided the general contractor or subcontractor may refuse to place the funds in escrow on the grounds that the subcontractor has not substantially performed the work according to the terms of his or its employment. In the event that such general contractor or subcontractor refuses to place such funds in escrow, and the party making a claim against it under this section is found to have substantially performed its work in accordance with the terms of its employment in any arbitration or litigation to determine the validity of such claim, then such general contractor or subcontractor shall pay the attorney’s fees of such party.
    (c) No payment may be withheld from a subcontractor for work performed because of a dispute between the general contractor and another contractor or subcontractor.
    (d) This section shall not be construed to prohibit progress payments prior to final payment of the contract and is applicable to all subcontractors for material or labor whether they have contracted directly with the general contractor or with some other Subcontractor on the work.

    Sec. 49-41b Release of Payments on Public Works Construction Projects

    When any public work is awarded by a contract for which a payment bond is required by section 49-41 and such contract contains a provision requiring the general or prime contractor under such contract to furnish a performance bond in the full amount of the contract price, the following shall apply:

    (1) In the case of a contract advertised by the state Department of Public Works between July 1, 1996, and June 30, 1999, inclusive, (A) the department shall not withhold more than ten per cent from any periodic or final payment which is otherwise properly due to the general or prime contractor under the terms of such contract and (B) any such general or prime contractor shall not withhold from any subcontractor more than (i) ten per cent from any periodic or final payment which is otherwise due to the subcontractor or (ii) the amount withheld by the department from such general or prime contractor under subparagraph (A) of this subdivision, whichever is less. Notwithstanding the provisions of this subdivision (1), the Commissioner of Public Works shall establish an early release program with respect to periodic payments by general or prime contractors to subcontractors.
    (2) In the case of a contract advertised by the state Department of Public Works on or after July 1, 1999, or in any case in which the awarding authority is any other state agency, (A) the awarding authority shall not withhold more than two and one-half per cent from any periodic or final payment which is otherwise properly due to the general or prime contractor under the terms of such contract, and (B) any such general or prime contractor shall not withhold more than two and one-half per cent from any periodic or final payment which is otherwise due to any subcontractor.
    (3) If the awarding authority is a municipality, (A) it shall not withhold more than five per cent from any periodic or final payment which is otherwise properly due to the general or prime contractor under the terms of such contract, and (B) any such general or prime contractor shall not withhold more than five per cent from any periodic or final payment which is otherwise due to any subcontractor.

    Sec. 49-41c State Contractor to Make Payment to Subcontractor Within Thirty Days

    Any person contracting with the state shall make payment to any subcontractor employed by such contractor within thirty days of payment by the state to the contractor for any work performed or, in the case of any contract entered into on or after October 1, 1986, for materials furnished by such subcontractor, provided such contractor may withhold such payment if such contractor has a bona fide reason for such withholding and if such contractor notifies the affected subcontractor, in writing, of his reasons for withholding such payment and provides the state board, commission, department, office, institution, council or other agency through which such contractor had made the contract, with a copy of the notice, within such thirty-day period.

    Sec. 49-42 Enforcement of Right to Payment on Bond Suit on bond, procedure and judgment.

    (a) Any person who performed work or supplied materials for which a requisition was submitted to, or for which an estimate was prepared by, the awarding authority and who does not receive full payment for such work or materials within sixty days of the applicable payment date provided for in subsection (a) of section 49-41a, or any person who supplied materials or performed subcontracting work not included on a requisition or estimate who has not received full payment for such materials or work within sixty days after the date such materials were supplied or such work was performed, may enforce his right to payment under the bond by serving a notice of claim on the surety that issued the bond and a copy of such notice to the contractor named as principal in the bond within one hundred eighty days of the applicable payment date provided for in subsection (a) of section 49-41a, or, in the case of a person supplying materials or performing subcontracting work not included on a requisition or estimate, within one hundred eighty days after the date such materials were supplied or such work was performed. The notice of claim shall state with substantial accuracy the amount claimed and the name of the party for whom the work was performed or to whom the materials were supplied, and shall provide a detailed description of the bonded project for which the work or materials were provided. If the content of a notice prepared in accordance with subsection (b) of section 49-41a complies with the requirements of this section, a copy of such notice, served within one hundred eighty days of the payment date provided for in subsection (a) of section 49-41a upon the surety that issued the bond and upon the contractor named as principal in the bond, shall satisfy the notice requirements of this section. Within ninety days after service of the notice of claim, the surety shall make payment under the bond and satisfy the claim, or any portion of the claim which is not subject to a good faith dispute, and shall serve a notice on the claimant denying liability for any unpaid portion of the claim. The notices required under this section shall be served by registered or certified mail, postage prepaid in envelopes addressed to any office at which the surety, principal or claimant conducts his business, or in any manner in which civil process may be served. If the surety denies liability on the claim, or any portion thereof, the claimant may bring action upon the payment bond in the Superior Court for such sums and prosecute the action to final execution and judgment. An action to recover on a payment bond under this section shall be privileged with respect to assignment for trial. The court shall not consolidate for trial any action brought under this section with any other action brought on the same bond unless the court finds that a substantial portion of the evidence to be adduced, other than the fact that the claims sought to be consolidated arise under the same general contract, is common to such actions and that consolidation will not result in excessive delays to any claimant whose action was instituted at a time significantly prior to the motion to consolidate. In any such proceeding, the court judgment shall award the prevailing party the costs for bringing such proceeding and allow interest at the rate of interest specified in the labor or materials contract under which the claim arises or, if no such interest rate is specified, at the rate of interest as provided in section 37-3a upon the amount recovered, computed from the date of service of the notice of claim, provided, for any portion of the claim which the court finds was due and payable after the date of service of the notice of claim, such interest shall be computed from the date such portion became due and payable. The court judgment may award reasonable attorneys fees to either party if upon reviewing the entire record, it appears that either the original claim, the surety’s denial of liability, or the defense interposed to the claim is without substantial basis in fact or law. Any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing the payment bond shall have a right of action upon the payment bond upon giving written notice of claim as provided in this section.
    (b) Every suit instituted under this section shall be brought in the name of the person suing, in the superior court for the judicial district where the contract was to be performed, irrespective of the amount in controversy in the suit, but no such suit may be commenced after the expiration of one year after the applicable payment date provided for in subsection (a) of section 49-41a, or, in the case of a person supplying materials or performing subcontracting work not included on a requisition or estimate, no such suit may be commenced after the expiration of one year after the date such materials were supplied or such work was performed.
    (c) The word “material” as used in sections 49-41 to 49-43, inclusive, includes the rental of equipment used in the prosecution of work provided for in the contract.

    Sec. 49-43 Certified Copies of Bonds and Contracts for Public Works

    Each agency of the state or of any subdivision thereof, in charge of the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof, shall furnish, to any person making application therefore who submits an affidavit that he has supplied labor or materials for the work and payment therefore has not been made or that he is being sued on the bond, a copy of the bond and the contract for which it was given, certified by the administrative head of the agency, which copy shall be prima facie evidence of the contents, execution and delivery of the original. Applicants shall pay for those certified copies such fees as are provided in section 1-15.

    Secs. 49-44 to 49-46 Recording of Judgment Lien; When it Holds from Attachment

    Lien only on land liable to execution at date of judgment. Owner of judgment may file lien; foreclosure, limitation of time, notice of lis pendens. Sections 49-44 to 49-46, inclusive, are repealed.

    Sec. 49-46a Transferred to Chapter 906, Sec. 52-380d

    Sec. 49-47 Transferred to Chapter 906, Sec. 52-380h

    Sec. 49-47a Form of Mechanic’s Lien Foreclosure Certificates

    Certificates of foreclosure of mechanic’s liens shall be, as far as possible, of the same form as is prescribed for certificates of foreclosure of mortgages.

    Sec. 49-48 Transferred to Chapter 906, Sec. 52-380i

    Sec. 49-49 When Insolvency Proceedings Set Aside Lien

    Section 49-49 is repealed.

    Sec. 49-50 Transferred to Chapter 906, Sec. 52-380f

    Sec. 49-51 Discharge of Invalid Lien

    (a) Any person having an interest in any real or personal property described in any certificate of lien, which lien is invalid but not discharged of record, may give written notice to the lienor sent to him at his last-known address by registered mail or by certified mail, postage prepaid, return receipt requested, to discharge the lien. Upon receipt of such notice, the lienor shall discharge the lien by sending a release sufficient under section 52-380d, by first class mail, postage prepaid, to the person requesting the discharge. If the lien is not discharged within thirty days of the notice, that person may apply to the Superior Court for such a discharge, and the court may adjudge the validity or invalidity of the lien and may award the plaintiff damages for the failure of the defendant to make discharge upon request. If the court is of the opinion that such certificate of lien was filed without just cause, it may allow, in its discretion, damages to any person aggrieved by such failure to discharge, at the rate of one hundred dollars for each week after the expiration of such thirty days, but not exceeding in the whole the sum of five thousand dollars or an amount equal to the loss sustained by such aggrieved person as a result of such failure to discharge the lien, which loss shall include, but not be limited to, a reasonable attorney’s fee, whichever is greater.
    (b) When a lien on real property is adjudged invalid or is otherwise discharged by the court, a certified copy of the judgment of invalidity or discharge recorded on the land records of the town where the certificate of lien was filed fully discharges the lien. If such a discharged or invalid lien is a lien filed on personal property pursuant to section 52-355a, a release of lien in the form prescribed by subsection (c) of section 52-380d, certified to by a clerk of the Superior Court, with reference to and the date of the court order of discharge or invalidity, fully discharges the lien on filing with the Secretary of the State.

    Sec. 49-52 Pendency of Action to Foreclose Lien on Personalty Not to be Notice

    The pendency of an action for the foreclosure of any lien, other than a chattel mortgage, upon any personal estate is not notice of that action to any person who acquires an interest in that estate during the pendency of the action, unless the officer serving the process and complaint in the action leaves a true and attested copy of the process and complaint at the office of the town clerk of the town in which the lien is recorded at least twelve days before the return day of the process. A judgment or decree of foreclosure obtained in that action, upon any process and complaint of which a copy is not so left at the town clerk’s office, does not affect the rights of any person acquiring an interest in the estate during the pendency of the action.

    Sec. 49-53 Duty of Officer Serving Process in Such Action Record by town clerk.

    (a) The officer serving the process and complaint in an action for the foreclosure of any lien, other than a chattel mortgage, upon any personal estate shall leave a true and attested copy of the process and complaint at the town clerk’s office at least twelve days before the return day of the process, for which he shall be allowed the same fees as for other copies, and the fees shall be taxed with the other fees in the cause.
    (b) The town clerk at whose office any such copy is left shall keep the same on file for the inspection of all persons having any interest in the estate therein described. The town clerk shall endorse on all such copies the date of their reception, and shall plainly number them as they are received, consecutively. He shall also keep a book in which he shall index the copies, referring to their numbers, under the plaintiff’s name as grantee and the defendant’s name as grantor.

    Sec. 49-54 Transferred to Chapter 906, Sec. 52-380b

    Sec. 49-58 Lien Not to Exceed Contract Price

    A vessel or its appurtenances shall not be subject to vessel liens for a greater amount in the whole than the price agreed to be paid for the vessel or its repairs.

    Sec. 49-59 Discharge of Liens

    Penalty for failure to discharge. Each person who has lodged for record a certificate claiming a lien on any property, under the provisions of this chapter, shall, after receiving satisfaction of his claim or after the rendition of a final judgment against him showing that nothing is due thereon, within ten days after being requested in writing to do so by any person interested in having the lien removed, sign and lodge, in the office in which his original certificate was filed for record, a certificate that such lien is removed, which, when recorded, shall discharge such lien. If he fails to comply with such request, he shall pay to the party aggrieved such sum, not exceeding half the amount claimed by his lien, as the court having cognizance of the action brought therefore may determine.

    Sec. 49-61 Release of Artificer’s Lien on Substitution of Bond Lien on motor vehicle; notice to commissioner. Sale.

    (a) The owner of any personal property which is held by one who claims to be a bailee for hire of that personal property and to have a lien in consequence thereof, or anyone having a legal or equitable interest in that property, may apply in writing to any judge of the Superior Court, within whose jurisdiction that personal property is held or the lienor resides, to dissolve the lien upon the substitution of a bond with surety.
    (b) If the property is a motor vehicle and if no application that the lien be dissolved upon such substitution of a bond is made within thirty days of the date of the completion of the work upon the property by the bailor for hire, the bailee shall send a written notice to the Commissioner of Motor Vehicles, stating the engine number and chassis number thereof, the date the motor vehicle was left with him, the date the work was completed, the amount for which a lien is claimed, the registration thereof if any number plates are on the motor vehicle and the name of the owner or person who authorized the work to be done, and shall enclose a fee of five dollars. Such notice shall be placed on file by the Commissioner of Motor Vehicles and be open to public inspection. If the motor vehicle is subject to a security interest, the commissioner shall send the bailee the name and address of any lienholder as recorded on the certificate of title. Any sale under the provisions hereinafter stated shall be void unless the notice required in this section has been given to said commissioner, if the property is a motor vehicle.
    (c) If no application for such dissolution of the lien has been made by the bailor for hire within three months from the date of completion of the work upon the property, or if the property has not been replevied, the bailee may sell the property at public auction for cash at his place of business and apply the proceeds of the sale, first toward the payment of the debt or obligation owing to him and second toward the payment of any balance due on any conditional bill of sale held on the property.
    (d) The sale shall be advertised, in a newspaper published or having a circulation in the town where the bailee’s place of business is situated, three times, commencing at least ten days before the sale and, if the last usual place of abode of the bailor is known to or may reasonably be ascertained by the bailee, notice of the time and place of sale shall be given by mailing the notice to him in a registered or certified
    letter, postage prepaid, at least ten days before the time of the sale, and similar notice shall be given to any officer who has placed an attachment on the property and, if the property is a motor vehicle, any lienholder.
    (e) The proceeds of such sale, after the payment of the amount owing to the bailee and all expense connected with the sale and of any balance due on any conditional bill of sale, shall be paid to any officer who has placed an attachment on the property and be held by that officer in the same manner as though such moneys had been originally attached. If there has been no attachment, the balance shall be paid to the owner of the property or his legal representatives, if called for or claimed by him or them at any time within one year from the date of the sale, and, if the balance is not claimed or called for as aforesaid within said period, it shall escheat to the state.

    Sec. 49-62 Form of Application

    The application described in section 49-61 may be in the following form:

    “To ____, a Judge of the Superior Court for the judicial district of ____: The application of C.D. of the Town (or City) of .____ in the County of ____, and judicial district of ____, shows that he is the owner (or sets forth other legal or equitable interest) of the following personal property, viz.: Such personal property is now held by A.B. of the Town (or City) of ____, in the County of ____, and judicial district of ____________ under a claim of lien for storage of such personal property, (or for care, cartage, freight, work and material, etc., as the case may be), and that he is desirous that such lien be dissolved upon the substitution of a bond, with surety, according to the statute. Dated at ____ the ____ day of .____ 20__. C.D. (or C.D. by X, his attorney).”

    Sec. 49-63 Notice of Application

    Hearing. No such lien may be dissolved until reasonable notice of the application, in writing, signed by the applicant or his attorney, has been served upon the lienor or left at his usual place of abode or such other reasonable notice as the judge may order has been given. Any person interested may be heard in relation to the amount and sufficiency of the bond offered by the applicant. The bond shall be in amount not less than the amount claimed by the lienor, unless it appears to the authority to whom the application is made that the amount so claimed is excessive, in which event he may order the bond to be in such amount as he deems reasonable.

    Sec. 49-64 Form of Bond

    Such bond shall be taken to the lienor, and shall be substantially in the following form: “Know all men by these presents:

    That we, C. D. of ____, as principal, and ____ of ____, as surety, are holden and firmly bound, jointly and severally, unto A. B. of ____, in the penal sum of ____ dollars, to which payment well and truly to be made, we hereby bind ourselves, our heirs, executors and administrators, firmly by these presents. The Condition of this obligation is such that whereas certain personal property, viz.: ____, in which said C. D. has an interest as owner (or otherwise, as the case may be) is now held by said A. B. under claim of lien for storage (or otherwise, as the case may be) to the amount of ____. dollars: Now, Therefore, if said C. D. shall pay or cause to be paid any judgment that may be rendered against him by any court of competent jurisdiction not exceeding the amount of ___. dollars (the amount claimed under the lien), with interest and costs, or in default of such payment shall pay or cause to be paid to the officer having the execution issued on such judgment, on demand, the actual value at the date hereof of such personal property, not exempt from such lien, not exceeding said amount of ___. dollars, then this bond shall be void, but otherwise in full force and effect.

    Dated at ___. this ____ day of ____, 20__ ___________ Seal. ___________ Seal.”

    Sec. 49-65 Dissolution of Lien to be Recorded

    The authority dissolving the lien shall certify such dissolution upon the application, and forthwith return the application, notice, order and bond to the clerk of the superior court for the judicial district wherein such personal property is held under such lien, or wherein such lienor resides.

    Sec. 49-66 Pleadings May Be Amended

    In any case in which a bond is substituted for a lien after an action for the collection of the lienor’s charges has been commenced, the plaintiff in such action may amend his pleadings, without costs, so as to make the action one upon such bond.

    Sec. 49-67 Limitation of Action on Bond

    Any bond substituted for a lien under the provisions of sections 49-61 to 49-66, inclusive, shall be void unless an action is brought to recover thereon within one year from the date of such bond.

    Sec. 49-86 Bond in Lieu of Attachment Notice of lien

    Whenever a bond has been accepted in lieu of an attachment or in lieu of a previously accepted or ordered attachment bond, a notice of lien in favor of the attaching creditor and against the surety on the bond may be filed in the office of the town clerk of the town in which the real estate of the surety is situated, which notice of lien shall describe the land of the surety with reasonable certainty, and shall specify the date, amount and condition of the bond and the names of all parties, plaintiff and defendant, the court to which the action is returnable and the return day, in the action for which the bond is given. Such notice of lien, from the time of filing, shall constitute a lien upon the real estate described in such notice. Whenever a court or judge has power to order a bond in lieu of attachment, such court or judge may order a bond in lieu of a previously ordered or accepted attachment bond.

    Sec. 49-87 Certificate of Dissolution of Bond, Filing

    Upon dissolution of the surety bond, the surety may file with the town clerk where the real estate is situated a certificate of such dissolution signed by the plaintiff of record or by his attorney of record or by the authority making the attachment for which the bond was substituted.

    Sec. 49-88 Duration of Lien

    A lien on real estate arising under the provisions of section 49-86 shall not continue in force as a lien for a longer period than fifteen years after the date thereof unless within said period an action on the bond in connection with which the notice of lien was filed has been prosecuted to effect and a judgment lien against the surety filed according to law. All liens on real estate which have expired under the provisions of this section shall be deemed dissolved and the real estate shall be free from any lien or encumbrance by reason of the same and the town clerk of the town in which the real estate is situated shall, upon the request of any person interested, endorse on the record of the notice of lien the words “discharged by operation of law”.

    Sec. 49-89 When Judgment Lien to Date Back to Notice

    If a judgment lien is placed upon real estate described in a notice of lien filed pursuant to the provisions of section 49-86 within four months after the judgment was rendered against the surety, it shall hold from the date of the notice of lien, provided the action on the bond was commenced within one year from the date of judgment in the action in connection with which the bond was substituted, and provided further the judgment lien contains a clause referring to and identifying the notice of lien.

    Sec.49-90 Certificate of Withdrawal of Suit or Nonsuit to be Issued by Court Clerk

    If any lien arising under the provisions of section 49-86 has been made and the plaintiff has withdrawn his suit or has been nonsuited or final judgment has been rendered against him, or if such suit has not been returned, or if for any reason such lien has become of no effect, the clerk of the court to which such suit has been made returnable shall, upon the request of any person interested, issue a certificate in accordance with the facts, which certificate may be filed in the office of the town clerk, and such town clerk shall note on the margin of the record where such lien is recorded.

    Sec. 49-91 Certificate of Removal of Lien

    In any proceeding wherein a lien has been filed pursuant to the provisions of section 49-86, if the plaintiff therein has received satisfaction for his claim, or final judgment has been rendered against him thereon, or when for any reason the lien has become of no effect, the plaintiff or his attorney, at the request of any person interested in the estate liened or in having the lien removed, shall lodge a certificate with the town clerk that the lien is removed. Each such certificate shall be recorded at length in a book kept for that purpose by the clerk as a part of the land records of the town wherein the property affected by the release is located or wherein the notice of lien was filed.

    Sec. 49-92 Other Lien Rights Not Affected Compliance with other statutes.

    Section 49-92 is repealed.

    Sec. 49-92a Purchaser’s Lien Precedence. Foreclosure.

    A purchaser’s lien is created for the amount of the deposit paid pursuant to and stated in a contract for the conveyance of land by the recording of that contract in the records of the town in which the land is situated, provided the contract is executed by the owner and by the vendee of the land, witnessed and acknowledged in the same manner as required for a deed for the conveyance of land, and describes the particular land to which it refers. That purchaser’s lien shall be prior to any other liens and encumbrances originating after the contract is recorded. A purchaser’s lien may be foreclosed in the same manner as a mortgage. Transfer of title of the land to the vendee constitutes a release and discharge of the lien.

    Sec. 49-92b Dissolution on Substitution of Bond Joinder of actions on claim and bond.

    (a) Whenever any purchaser’s lien has been placed upon any real estate pursuant to section 49-92a, the owner of the real estate, or any person interested in the real estate, may make an application to any judge of the Superior Court that the lien be dissolved upon the substitution of a bond with surety, and the judge shall order reasonable notice to be given to the lienor of the application. If the lienor is not a resident of the state, the judge may order notice to be given by publication, registered or certified mail or personal service.
    (b) If the judge is satisfied that the applicant in good faith intends to contest the lien, he shall, if the applicant offers a bond, with sufficient surety, conditioned to pay to the lienor or his assigns such amount as the judge may adjudge to have been secured by the lien, with interest and costs, order the lien to be dissolved and the bond substituted therefore and shall return the application, notice, order and bond to the clerk of the superior court for the judicial district wherein the lien is recorded. If the applicant, within ten days from the return, causes a copy of the order, certified by the clerk, to be recorded in the town clerk’s office where the lien is recorded, the lien shall be dissolved.
    (c) Whenever a bond is substituted for any lien after an action for the foreclosure of a lien has been commenced, the plaintiff in that foreclosure may amend his complaint, without costs, so as to make the action one upon the bond with which the plaintiff may join an action to recover upon his claim.
    (d) Whenever a bond is substituted for any lien before an action for the foreclosure of the lien has been commenced, the plaintiff may join the action upon the bond with an action to recover upon his claim.
    (e) Whenever a bond has been substituted for any lien, pursuant to this section, unless an action is brought to recover upon such bond within two years from the date of recording the certificate of lien, such bond shall be void.

    Sec. 49-92c Limitation of Lien

    No purchaser’s lien shall continue in force for a longer period than two years after such lien has been perfected, unless the party claiming such lien, within said period, commences an action to foreclose the same and proceeds therewith to final judgment. Each such lien, after the expiration of two years without action commenced, shall be discharged of record by the person claiming the same, upon the request of the owner of the property upon which the lien has been claimed.

    Sec. 49-92d Record of Discharge

    The town clerk of the town in which the purchaser’s lien is filed shall, upon request of any person having an interest in the real estate covered by that lien, cause to be entered upon the land records a notation that the lien and, if applicable, the lis pendens or notice of foreclosure, is discharged by operation of law, provided the purchaser’s lien has expired by a provision of the statute of limitations, and (1) no lis pendens or notice of foreclosure of the lien has been filed with that town clerk, or (2) if a lis pendens or notice of foreclosure has been so filed or recorded and a certificate, issued by the clerk of the court to which the notice referred after the return day of the foreclosure action and indicating that no such foreclosure action remains pending and that no judgment has been entered in the action in thatcourt, has been filed for record with the town clerk.

    Sec. 49-92e Action to Claim Discharge

    Any person, having an interest in any real estate described in any recorded contract of sale creating a purchaser’s lien which is invalid but not discharged of record, may give written notice to the lienor to discharge the lien in the office where recorded. If the request is not complied with in ten days, that person may bring his complaint to the court which would have jurisdiction of the foreclosure of the lien, if valid, claiming such discharge of the lien, and the court may adjudge the validity or invalidity of the lien and may award the plaintiff damages for the failure of the defendant to make discharge upon request. A certified copy of the judgment of invalidity, recorded on the land records of the town where such certificate of lien was filed, fully discharges the lien.

    Sec. 49-92f Certificate of Removal of Lien

    Each person who has lodged for record a contract of sale claiming a lien on any property under the provisions of sections 49-92a to 49-92f, inclusive, shall, after receiving satisfaction of his claim or after the rendition of a final judgment against him showing that nothing is due thereon, within ten days after being requested in writing to do so by any person interested in having the lien removed, sign and lodge, in the office in which his original contract of sale was filed for record, a certificate that such lien is removed, which, when recorded, shall discharge such lien. If he fails to comply with such request, he shall pay to the party aggrieved such sum, not exceeding half the amount claimed by his lien, as the court having cognizance of the action brought therefore may determine.

  • Delaware, (post date:2013-04-23 22:58:28)

    Delaware Lien Law

    Notice Req.
    Intent to Lien
    Lien Req.
    Prime Contractor

    Not Required

    The lien must be filed within 180 days of completed work. Enforcement takes place with the lien filing.

    Sub Contractor

    Not Required

    The lien must be filed within 120 days of completed work. The lien is only effective to funds not paid by the prime contractor, on owner occupied residential property. Enforcement takes place with the lien filing.

    Suppliers/Other

    Not Required

    The lien must be filed within 120 days of completed work. The lien is only effective to funds not paid by the prime contractor, on owner occupied residential property. Enforcement takes place with the lien filing.

    PRIVATE PROJECTS:

    Delaware 101

    Notices and Mechanics Liens

     

    1. How long do I have to file a claim of lien in Delaware?

    180 days from the completion.  Subcontractors and suppliers have 120 days from the date of completion.

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    2. Do I have to file any notices before I start work on a property in?

    No, not in the state of Delaware.

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    3. What is my last day performing services so that I can request payment?

    For a contractor, the last day of work.  Returning to the site to do any additional work after you first, last day of work, is not included in your final day of services.

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    4. Who do not have any lien rights in the state of Delaware?

    Rental equipment providers, suppliers to suppliers are not allowed lien rights.

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    5. How long do I have to file for a lien of foreclosure?

    In Delaware the Statement of Claim is established as the document to start a lien foreclosure.

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    6. Is there mandatory notice requirements in Delaware?

    A lien claimant is required to send a notice to all lien holders on the real estate.   Also, a Writ of Scire Facias, is required on an occupied place of residence. 

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    7. Who satisfies the lien when I get paid?

    The owner or any interested party may petition the court that the lien be discharged against the property upon the payment of the sum equal to the amount of the claim and deposited with the court.

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    8. What cost can I claim for?

    Attorney fees and damages.

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    MILLER ACT STATUTE:

    The Delaware “Little Miller Act

    Delaware Code, Title 29, State Government, Budget, Fiscal, Procurement and Contracting Regulations, Chapter 69, State Procurement, Subchapter IV, Public Works Contracting, Section 6962
    __________________________________________________________________________________

    § 6962. Large public works contract procedures.

    (a) Applicability. — Any state contract for which an agency is a party and for which the probable cost is greater than the amount set by the Contracting and Purchasing Advisory Council pursuant to § 6913 of this title for small public works contracts shall be subject to the provisions of this section.

    *          *          *          *          *          *

    (d) Bid specifications and plans requirements. –

    (8) Bid bonding requirements. –

    a. All bids shall be accompanied by a deposit of either a good and sufficient bond to the agency for the benefit of the agency, with corporate surety authorized to do business in this State, the form of the bond and the surety to be approved by the agency, and the bond form used shall be the standard form issued by the Office of Management and Budget for this purpose or a security of the bidder assigned to the agency, for a sum equal to at least 10% of the bid. The bid bond need not be for a specific sum, but may be stated to be for a sum equal to 10% of the bid to which it relates and not to exceed a certain stated sum, if said sum is equal to at least 10% of the bid. Any bid which, at the time it is submitted, is not accompanied by a bid bond or sufficient security as required by this paragraph shall not be opened or read, and shall be rejected.

    b. Upon the execution of a formal contract and performance bond, the bid bond or security shall be returned to the successful bidder. The security of the unsuccessful bidders shall be returned to them immediately upon the awarding of the contract or the rejection of all bids, but in no event later than 30 days after the opening of bids with the exception of school districts and the Department of Public Instruction, which shall be no more than 60 days unless the contracting agency or school district extends the bid evaluation period by 5 working days per the requirements of paragraph (d)(13)a. of this section. If the bid evaluation period is extended by 5 working days, then the security of each unsuccessful bidder shall be returned to them on the first working day after the end of the extended bid evaluation period.

    c. Loss of bid bond as damages. — In the event of any successful bidder refusing or neglecting to execute a formal contract and bond within 20 days of the awarding of the contract, the bid bond or security deposited by the successful bidder shall be taken and become the absolute property of the State for the benefit of the agency as liquidated damages. Such damages shall neither constitute a forfeiture nor a penalty and shall be deposited with the Secretary of Finance. Such monies pertaining to Department of Transportation contracts shall be deposited in the Transportation Trust Fund. The contracting agency may award the contract to the next lowest responsible bidder or re-advertise for new bids.

    d. In the case of bids submitted to agencies other than any county of this State and other than any public school district, wherever security is required under this section, the vendor shall also supply with its bid its taxpayer identification number (i.e., federal employer identification number or social security number) or a Delaware business license number and, should the vendor be awarded a contract, such vendor shall provide to the agency the taxpayer identification or Delaware business license numbers of such subcontractors. Such numbers shall be provided on the later of the date on which such subcontractor is required to be identified or the time the contract is executed. The agency shall report to the Division of Revenue each vendor selected for award within 15 days of execution of the contract and each subcontractor within 15 days of such contractor having been identified to the agency or on the date of execution of the contract, whichever is later, unless the Director of the Division of Revenue has notified the agency of criteria according to which, in the Director’s discretion, reporting is not required and the contract meets such criteria.

    (9) Performance bonding requirements. –

    a. Simultaneous with the execution of the formal contract, the successful bidder shall also execute a good and sufficient bond to the contracting agency for the benefit of the agency, with corporate surety authorized to do business in this State, in a sum equal to 100% of the contract price and the bond form used shall be the standard form issued by the Office of Management and Budget.

    b. The bond shall be conditioned upon the faithful compliance and performance by the successful bidder of each and every term and condition of the contract and the proposal and plans and specifications thereof, at the time and in the manner prescribed by the contract and the plans and specifications, including the payment in full, to every firm furnishing materiel or performing labor in the performance of the contract, of all sums of money due it for such labor or materiel. The bond shall also contain the successful bidder’s guarantee to indemnify and save harmless the agency from all costs, damages and expenses growing out of or by reason of the successful bidder’s failure to comply and perform the work and complete the contract in accordance with the contract.

    c. The agency may, when it considers that the interests of the agency so require, cause judgment to be confessed upon the bond. All sums received through confession of judgment shall be paid for the credit of the agency to the Secretary of Finance or to the chief financial officer of the agency if it is not a state agency.

    d. Every firm furnishing materiel or performing labor under the contract for which the successful bidder is liable may maintain an action on the bond for its own use in the name of the agency in any court of competent jurisdiction for the recovery of such sum or sums as may be due such firm from the successful bidder, but if the bond so provides, no suit shall be commenced after the expiration of 1 year following the date on which the successful bidder ceased work on the contract. Otherwise, suits may be commenced at any time within 3 years following the date the last work was done on the contract.

    e. No firm or surety, in any action brought under this section, or on the bond required by this section, shall assert as a defense to such action the claim that the bond given pursuant to this section contained a limitation or restriction not provided for by this section.

    f. In the event of defaults of its contracts, the money collected on the performance bonds shall be utilized by the contracting agency for the projects for which the performance bonds were issued. All performance bond proceeds received shall be deposited with the Secretary of Finance for the credit of the agency. Such monies pertaining to Department of Transportation contracts shall be deposited in the Transportation Trust Fund.

    g. In addition to the bond, letter of credit or other financial security posted by the successful bidder in conjunction with the execution of the formal contract, each successful bidder, regardless of the type of the security posted or waived, as the case may be, must purchase adequate insurance for the performance of the contract and, by submission of a bid, does agree to indemnify and save harmless and to defend all legal or equitable actions brought against the agency or officer or employee of the agency for and from all claims of liability which is or may be the result of the successful bidder’s actions during the performance of the contract. The purchase or nonpurchase of such insurance or the involvement of the successful bidder in any legal or equitable defense of any action brought against the successful bidder based upon work performed pursuant to the contract shall not waive any defense which the agency and its officers and employees might otherwise have to such claims, specifically including the defense of sovereign immunity, where applicable, and by the terms of this section, the agency and its officers and employees shall not be financially responsible for the consequences of work performed, pursuant to said contract.

    h. Contracts may contain a waiver of the bond requirement; provided however, that the successful bidder post with the contracting agency an irrevocable letter of credit or other suitable or readily collectible financial security for the project. Such security shall be subject to the terms and conditions of the contracting agency.

    LIEN STATUTE:

    TITLE 25 PROPERTY PART II MORTGAGES AND OTHER LIENS

    CHAPTER 27 MECHANICS’ LIENS

    SUBCHAPTER I GENERAL PROVISIONS

    2701 Definitions
    2702 Persons Entitled to Lien
    2703 Requirements for Lien on Land
    2704 Corporations or Individuals
    2705 Lists of Suppliers of Labor and Materials, Demand
    2706 Waivers of Liens
    2707 Restrictions on Liens on Residences; Certifications and Releases
    2708 Subcontractor Liens, Fringe Benefits

    SUBCHAPTER II ENFORCEMENT IN SUPERIOR COURT

    2711 Time for Filing Statement of Claims
    2712 Contents of Statement of Claims, Complaint
    2713 Liens Against Two or More Structures
    2714 Scire Facias
    2715 Writ of Scire Facias
    2716 Default, Defense
    2717 Proof of Claim
    2718 Judgment Lien
    2719 Execution
    2720 Ratable Division
    2721 Personal Actions
    2722 Work Ordered by Tenants
    2723 Withholding Funds from Contractor
    2724 Mechanics Lien Docket
    2725 Lien and Personal Action
    2726 Liens on Vessels
    2727 Audits, Reports
    2728 Attachments, Judgments
    2729 Cash Deposit, Security
    2731 Lien for Less Than $100
    2732 Time for Filing Claim
    2733 Statement of Claim
    2734 Summons, Failure to Appear
    2735 Transcript of Judgment
    2736 Execution
    2737 Transferred

    DELAWARE CODE

    TITLE 25 PROPERTY PART II MORTGAGES AND OTHER LIENS

    CHAPTER 27 MECHANICS’ LIENS SUBCHAPTER I GENERAL PROVISIONS

    2701 Definitions

    As used in this chapter, unless the context requires a different meaning.
    (1) “Labor” includes work.
    (2) “Structure” includes a building or house.

    2702 Persons Entitled to Lien

    (a)It shall be lawful for any person having performed or furnished labor or material, or both, to an amount exceeding $25 in or for the erection, alteration or repair of any structure, in pursuance of any contract, express or implied, with the owners of such structure or with the agent of such owner or with any contractor who has contracted for the erection, alteration or repair of the same and for the furnishing of the whole or any part of the materials therefore, including any person who has performed or furnished labor or material, or both, for or at such structure under a contract with or order from any subcontractor to obtain a lien upon such structure and upon the ground upon which the same may be situated or erected.
    (b)Liens may also be obtained in connection with: labor performed and materials furnished in plumbing, gas fitting, paper hanging, paving, placing iron works and machinery of every kind in mills and factories, bridge building, the erection, construction and filling in of wharves, piers and docks and all improvements to land by drainage, dredging, filling in, irrigating and erecting banks and the services rendered and labor performed and materials furnished by architects.

    2703 Requirements for Lien on Land

    No lien shall attach in case the improvements are to the land alone, unless a contract in writing, signed by the owner or owners thereof, setting forth the names of all parties to the contract and containing a description by the metes and bounds of the land to be affected and by a statement of the general character of the work to be done, and of the total amount to be paid thereunder, and the amounts of the partial payments, together with the time when such payments shall be due and payable.

    2704 Corporations or Individuals

    Liens may be filed for or against corporations or individuals.

    2705 Lists of Suppliers of Labor and Materials, Demand

    The owner of any structure built, repaired or altered by any contractor or subcontractor may require such contractor or subcontractor from time to time to furnish and submit to him a complete and accurate list in writing of all persons who have furnished labor or material, or both, in connection therewith, and who may be entitled to avail themselves of the provisions of this chapter. Should any such contractor or subcontractor fail to furnish such list for 10 days after demand made therefore by such owner, he shall be entitled to receive no further payments from the owner until such list be furnished and shall not be entitled to avail himself of any of the provisions of this chapter.

    2706 Waivers of Liens

    (a) Persons entitled to avail themselves of the lien provided for in this chapter shall not be considered as waiving the same by granting a credit or receiving notes or other securities, unless the same be received as payment or the lien expressly waived, but the sole effect thereof shall be to prevent such persons from availing themselves of the liens provided for in this chapter until the expiration of the time agreed upon.
    (b) Notwithstanding the provisions of any other law, except as provided in this subsection: Any contract, any agreement or understanding whereby the right to file or enforce any lien created under this chapter is waived, shall be void as against public policy and wholly unenforceable. This section shall not preclude a requirement for a written waiver of the right to file a mechanics’ lien executed and delivered by a contractor, subcontractor, material supplier or laborer simultaneously with or after payment for the labor performed or the materials supplied has been made to such contractor, subcontractor, material supplier or laborer nor shall this section be applicable to a written agreement to subordinate, release or satisfy all or part of such lien made after a statement of claim has been filed under this chapter. Nothing in this subsection shall amend, exempt, limit or qualify the provisions of section 2707 of this title.

    2707 Restrictions on Liens on Residences; Certifications and Releases

    No lien shall be obtained under this chapter upon the lands, structure, or both, of any owner which is used solely as a residence of said owner when the owner has made either full or final payment to the contractor, in good faith, with whom he contracted for the construction, erection, building, improvement, alteration or repair thereof. Prior to or simultaneous with the receipt of any full or final payment by the contractor, the contractor must provide the owner either (1) a notarized, verified written certification that the contractor has paid in full for all labor performed and materials furnished to the date of such full or final payment in or for such construction, erection, building, improvement, alteration or repair or (2) a written release of mechanics’ liens signed by all persons who would otherwise be entitled to avail themselves of the provisions of this chapter, containing a notarized, verified certification signed by the contractor that all of the persons signing the release constitute all of the persons who have furnished materials and performed labor in and for the construction, erection, building, improvement, alteration and repair to the date of the release and who would be entitled otherwise to file mechanics’ liens claims. Failure of the contractor to provide the owner a written certification or a release of mechanics’ liens at such time shall constitute sufficient cause for the immediate suspension, revocation or cancellation of the contractor’s occupational and business licenses. If the owner has not made full payment in good faith to such contractor, the lien may be obtainable in accordance with this chapter, but it shall be a lien only to the extent of the balance of the payment due such contractor, which balance or portion shall be payable pro rata among the claimants who perfect liens. Payments made to the contractor by the owner after service of process, as provided in section 2715 of this title, shall not be deemed to be “in good faith.”

    2708 Subcontractors Liens, Fringe Benefits

    A mechanics’ lien may be used to secure payment of any unpaid amounts due under contract from the contractor arising from a subcontractor’s labor including payment of fringe benefit items. As used in this section, the phrase “fringe benefit items” shall have the same meaning as the phrase“benefits or wage supplements” defined in s 1109(b) of Title 19.

    SUBCHAPTER II ENFORCEMENT IN SUPERIOR COURT

    2711 Time for Filing Statements of Claims

    (a) A contractor who (1) has made his contract directly with the owner or reputed owner of any structure and (2) has furnished both labor and material in and for such structure shall file no statement of claim until after the expiration of 90 days from the completion of such structure contracted for by him; but such contractor, in order to avail himself of the benefits of this subchapter, shall file his statement of claim within 30 days after the expiration of the 90-day period.
    (b) All other persons embraced within this chapter and entitled to avail themselves of the liens herein provided for shall file a statement of their respective claims within 90 days from the completion of the labor performed or from the last delivery of materials furnished by them respectively.

    2712 Contents of Statement of Claims, Complaint

    (a) Every person entitled to the benefits conferred by this chapter and desiring to avail himself of the lien provided for in this chapter, shall, within the time specified in this chapter, file a statement of claim, which may also serve as a complaint when so denominated, in the office of the Prothonotary of the Superior Court in and for the county wherein such structure is situated.
    (b) The complaint and/or statement of claim shall set forth:
    (1) The name of the plaintiff or claimant;
    (2) The name of the owner or reputed owner of the structure;
    (3) The name of the contractor and whether the contract of the plaintiff-claimant was made with such owner or his agent or with such contractor;
    (4) The amount claimed to be due, the nature and kind of the labor done or materials furnished with a bill of particulars annexed, showing the kind and amount of labor done or materials furnished;
    (5) The time when the doing of the labor or the furnishing of the materials was commenced;
    (6) The time when the doing of the labor or the furnishing of the materials was finished;
    (7) The location of the structure with such description as may be sufficient to identify the same;
    (8) That the labor was done or the materials were furnished on the credit of such structure;
    (9) The amount of plaintiff’s claim (which must be in excess of $25) and that neither this amount nor any part thereof has been paid to plaintiff; and
    (10) The amount which plaintiff claims to be due him on each structure.
    (11) The time of recording of a first mortgage, or a conveyance in the nature of a first mortgage, upon such structure which is granted to secure an existing indebtedness or future advances provided at least 50% of the loan proceeds are used for the payment of labor or materials, or both, for such structure.
    (c) The complaint and/or statement of claim shall be supported by the affidavit of the plaintiff-claimant that the facts therein are true and correct.

    2713 Liens Against Two or More Structures

    In every case in which 1 claim for labor or materials is filed by the same person against 2 or more structures owned by the same person for building, altering or repairing 2 or more structures owned by the same person, the claimant shall, at the time of filing such joint claim, designate the amount which he claims to be due to him on each of such structures.

    2714 Scira Facias

    (a) The proceedings to recover the amount of any claim shall be by writ of scire facias.
    (b) The writ of scire facias used under the provisions of this chapter shall be in the form prescribed by the Superior Court.

    2715 Writ of Scire Facias

    The writ shall be issued, returnable and served in the same manner as other writs of scire facias upon the defendant therein named, if he can be found within the county. A copy of the writ shall be left with some person residing in the structure to which the labor was done or for which the materials were furnished, if occupied as a place of residence, but if not so occupied, the sheriff shall affix a copy of such writ upon the door or other front part of such structure.

    2716 Default, Defense

    Judgment by default may be entered for the plaintiff at such time and in the manner prescribed by the rules of the Superior Court, unless the defendant has previously filed in the cause an affidavit that he verily believes there is a legal defense to the whole or part of such cause of action and setting forth the nature and character of the defense. If the defense is to a part only, then the defendant shall specify the sum really due, and judgment may be entered for the plaintiff at his election for the sum acknowledged to be due. If judgment is not so entered by default, then like proceedings shall be had as in other cases of scire facias.

    2717 Proof of Claim

    Proof by the claimant that labor or materials, or both, was performed or furnished upon or to any structure, or immediately adjacent thereto, shall be prima facie evidence that the same was performed or furnished for and on the credit of such structure.

    2718 Judgment Lien

    (a) Any judgment obtained under a claim made in accordance with this subchapter shall become a lien upon such structure and upon the ground upon which the same is situated, erected or constructed and shall relate back to the day upon which the labor was begun or the furnishing of material was commenced, or the time immediately following the time of recording of a first mortgage, or a conveyance in the nature of a first mortgage, upon such structure which is granted to secure an existing indebtedness or future advances provided at least 50% of the loan proceeds are used for the payment of labor or materials, or both, for such structure, whichever shall last occur.
    (b) In the case of the erection, construction and filling in of wharves, piers and docks and improvements to land, the liens shall extend to the lots or lands in front of which improvements are made.

    2719 Execution

    The execution of every judgment under the foregoing provisions shall be by writ of levari facias in the following form: “_________County, ss.: The State of Delaware.

    To the Sheriff of said County,

    Greeting: We command you that without any other writ from us of the following described building and lot of ground, to wit (describing the same according to the record), in your bailiwick, you cause to be levied as well a certain debt of ____ which _____. lately in our Superior Court for the County aforesaid, before the Judges thereof, recovered against .____ to be levied of the said building and lot of ground, as also the interest thereon from the ______ day of ____ A. D.,.____. and also the sum of ._______ for the cost which accrued thereon, according to the form and effect of an act of the General Assembly in such cases made and provided, and have you there moneys before our Judges at ______ at our Superior Court in and for the County of _______ there to be held on the ______day of ____ next to render unto the said _________ for his debt, interest and costs aforesaid, and have you then there this writ.”

    Witness (as in similar writs).

    2720 Ratable Division

    If the proceeds received from any sale under the writ of levari facias is not sufficient to pay in full all liens, such proceeds shall be ratably divided among the persons who have availed themselves of the provisions of this chapter without priority or preference of one over the other.

    2721 Personal Actions

    (a) Nothing contained in this subchapter shall be construed to impair or otherwise affect the right of any person to whom any debt may be due for labor done or materials furnished to maintain any personal action against the owner or contractor of such structure to recover the amount of such debt.
    (b) Nothing contained in this subchapter shall be construed to impair or otherwise affect the right of any person to whom any debt may be due for labor done or materials furnished in the erection, alteration or repair of any structure to maintain any personal action against the owner or reputed owner of the structure or against any contractor or against the same and other contracting parties for the same or for any greater or less demand before, concurrently with or after the proceedings for obtaining the lien upon the structureas provided in this chapter, and the judgment whether for the plaintiff or defendant or any of the defendants in such personal action shall in no wise impair, alter or affect the lien or the proceedings or judgment or execution provided for in this chapter.

    2722 Work Ordered by Tenants

    Nothing contained in this subchapter shall be construed to render property liable to liens under this chapter for repairs, alterations or additions, when such property has been altered, added to or repaired by or at the instance of any lessee or tenant without the prior written consent of the owner or his duly authorized agent.

    2723 Withholding Funds from Contractor

    The owner of any structure built, repaired or altered by any contractor who has contracted to build, erect, alter or repair the same and furnish the materials therefore may, in case any liens are entered under this chapter upon the structure, upon any claim for materials which by the terms of his contract the contractor was bound to furnish, by any person or persons other than such contractor, retain and withhold from such contractor so much of the moneys to be paid to him in pursuance of the contract made with such contractor as may be necessary to liquidate and discharge such liens; and, in case judgment is recovered by such lien creditors, the owner may apply the moneys or such part thereof as may be necessary to satisfy the judgment to the payment and satisfaction thereof. Such payment shall be considered and treated as a payment pro tanto to the contractor towards the moneys provided to be paid by the contractor.

    2724 Mechanics Lien Docket

    The Prothonotary in each county of this State shall procure and keep a docket, to be called “The Mechanics’ Lien Docket,” in which he shall make an entry of each claim filed, setting down therein the names of the parties, plaintiff and defendant, the amount claimed, the day upon which the claim is filed and of the issuing of the scire facias, a description of the property against which the claim is sought to be charged, amount for which judgment is rendered, the day on which the same is rendered, the party for and against whom it is rendered and, in case of judgment for the plaintiff, the time to which the judgment relates back as a lien and other entries necessary and proper to a full understanding of the case. The time to which the judgment relates back as a lien shall be ascertained in the same manner as the amount of the judgment is ascertained.

    2725 Lien and Personal Action

    (a) When the claimant proceeds under this chapter for availing himself of his lien and institutes any personal action for the same demand or any part thereof or for a demand of which the amount for which he claims a lien is a part, it shall be no objection in either suit that some of the parties defendant in the 1 suit are not also parties defendant in the other suit. In any such personal action or in the suit to avail himself of the lien, whichever is last docketed, the plaintiff shall file an affidavit setting out the demand in each of the suits and stating to what extent the respective demands are identical. The judgment in either of the actions shall not be pleaded as a bar in the other action.
    (b) Whenever any moneys are applied on the judgment on either of the demands pursuant to the execution thereof or pursuant to any other execution proceedings, the Superior Court may order all or any part to be credited on the judgment in the other of the demands according to the equity of the matter as the equity appears to the Court.

    2726 Liens on Vessels

    This subchapter shall also extend to labor or materials performed or furnished in the construction, alteration, furnishing, rigging, launching or repairing of any ship or vessel within this State. No bill of particulars and affidavit shall be filed more than 1 year after such ship or vessel has been launched, rigged, furnished and ready for sea or after such repairs have been completed and shall contain the name of the ship or vessel or a description thereof sufficient for identification. Upon filing the bill of particulars and affidavit under the provisions of this section, the Prothonotary may issue a writ of attachment, directed to the sheriff of the county in which the ship or vessel may be, commanding the sheriff to attach the defendant by such ship or vessel, together with the tackle, apparel and furniture, wheresoever the same may be found in his bailiwick, so that he appears at the next term of the Superior Court to answer the plaintiff’s demands. The sheriff shall, under such writ, seize and take possession of the ship or vessel and have the same inventoried and appraised and shall be answerable therefore. If the defendant in the attachment at any time before judgment appears and enters into recognizance to the plaintiff in the writ of attachment in a reasonable penalty and with surety to be approved by the Prothonotary with condition to pay the condemnation money and all costs or otherwise abide the judgment of the Superior Court in the case and if he fails to make good his plea, the attachment shall be dissolved, the ship or vessel shall be discharged, and the case shall proceed as in other cases of assumpsit for work and labor or materials furnished.

    2727 Audits, Reports

    On the return of the writ of attachment or summons the Court may, upon petition of any person claiming to have performed or furnished labor or materials at the request of the plaintiff or plaintiffs in the attachment, appoint 3 suitable persons to audit and determine the claim of the plaintiff and also the claim of the petitioner, who shall adjust and ascertain all the demands, including that of the plaintiff in the writ. The auditors shall severally be sworn or affirmed to perform their duties according to the best of their skill and knowledge. They shall give 10 days notice to the parties of the time and place of their first meeting by advertisement, posted at the courthouse door and at least 5 other public places in the county. Their subsequent sittings shall be by adjournment duly made and publicly announced. They may investigate any claim presented in any form they judge best and may examine any of the parties upon oath or affirmation. On receipt of the proceeds of the sale of the property attached or against which judgment is obtained or any part thereof, the auditors shall calculate and settle the proportions and dividends due the several parties and shall make report to the next term of the Court after such appointment and, upon confirmation of the report, pay over to the several parties their respective share of the proceeds according to such appointment. The Court may hear exceptions to and correct such account and report, either in the calculations, dividends, apportionment, or otherwise.

    2728 Attachments, Judgments

    If the attachment has not been dissolved, as provided in this subchapter, judgment may be given for the plaintiff in the attachment at the second term after issuing the writ as in other cases of attachment, and hereupon the Court may order that the sheriff shall sell the property attached, on due notice, and pay the proceeds, deducting legal costs and charges, to auditors for distribution. Any balance remaining due from the defendant in the attachment to any of the parties after such distribution of the proceeds may be collected as other debts, and any surplus after paying costs shall be returned to the defendant or his executors, administrators or assigns. All sales made under this subchapter shall be good against the defendant, his executors, administrators or assigns.

    2729 Cash Deposit, Security

    (a) Cash deposit. ¾ Any claim filed hereunder shall, upon petition of the owner or any party in interest, be discharged as a lien against the property whenever a sum equal to the amount of the claim shall have been deposited with the Court in said proceedings for application to the payment of the amount finally determined to be due. Said petition shall include an affidavit by the owner or party in interest setting forth which parts of the claim filed hereunder are disputed and which parts are not disputed. The nondisputed part of the claim shall be paid to the claimant before the lien against the property is discharged. If it is finally determined by the Court that the disputed portion of the claim has been grossly overstated by the affiant, the Court may, in its discretion, award damages to the claimant against the affiant in an amount up to twice the figure stated by the affiant to be disputed.
    (b) Refund of excess. ¾ Any excess of funds paid into Court as aforesaid, over the amount of the claim or claims determined and paid therefrom, shall be refunded to the owner or party depositing same upon application.
    (c) Security in lieu of cash. ¾ In lieu of the deposit of any such sum or sums in cash, approved security may be entered in such proceedings in an amount which the Court shall approve, which, however, shall in no event be less than the full amount of such required deposit; and the entry of such security shall entitle the owner to have such liens discharged to the same effect as though the required sums have been deposited in Court as aforesaid.
    (d) Authority of Court. ¾ The Court, upon petition filed by any party, and after notice and hearing, may upon cause shown:
    (1) Require the increase or decrease of any deposit or security;
    (2) Strike off security improperly filed;
    (3) Permit the substitution of security and enter an exoneration of security already given.

    2731 Lien for Less Than $100

    Any person having performed any labor to any amount less than $100 in or for the erection, alteration or repair of any structure or bridge, in pursuance of any contract, expressed or implied, with the owner or reputed owner of such structure or bridge or with any contractor who has contracted for the erection, alteration or repair of any structure or bridge, or any part thereof, may obtain a lien upon such structure or bridge and upon the ground upon which the same may be situated or erected in the manner provided in this subchapter.

    2732 Time for Filing Claim

    No person having done or performed any labor in or about the erection, alteration or repair of any structure or bridge shall be allowed to file any statement of his claim before a justice of the peace until after the expiration of 20 days from the time of the last labor done or performed by him, but, in order to avail himself of the benefits of this subchapter, he shall file his claim within 10 days after the expiration of the 20 days aforesaid. Any person entitled to the benefits of this subchapter shall file his claim under oath, within the time above specified, with any justice of the peace of the county wherein such structure or bridge is situated.

    2733 Statement of Claim

    The statement of claim shall set forth the names of the party claimant, the owner or reputed owner of the structure or bridge, the contractor and the kind of labor done and whether the contract was with the owner or his agent or with the contractor, the sum claimed to be due, the time when the labor was commenced and finished, the location of such structure or bridge, the ground upon which the same is situated, and a description sufficient to identify the same.

    2734 Summons, Failure to Appear

    Immediately upon the filing of any claim under this subchapter, the justice of the peace with whom the claim is filed shall issue a summons, as in other civil cases, to the owner and contractor, directed to any constable of the county. The time for the defendant’s appearance shall not be more than 3 days from the date of the summons, and not more than 2 adjournments shall be had and then only from day to day. If the defendant fails to appear at the time appointed or if after a hearing the justice is satisfied of the correctness of the claim, he shall give judgment as in other cases and, upon the payment of cost and a demand for the transcript, he shall furnish such transcript.

    2735 Transcript of Judgment

    The transcript and judgment may be entered in the Superior Court of the county in which the structure is situated and, when so entered, if within 2 days from the date of the judgment, shall become a lien on such structure or bridge and upon the ground upon which the same is erected and shall relate back to the day when the labor was commenced and shall take priority accordingly. Any and all transcripts taken and entered in the Superior Court under this subchapter shall contain a description of the property upon which it is to become a lien and shall conform to the description set forth in the plaintiff’s statement. All costs and charges shall follow the judgment and shall be the same as are authorized by law in civil cases before justices of the peace. Every contractor, when so required, shall give ample security to the owner of any structure being altered, erected or repaired by him to save such owner harmless from the provisions of this subchapter.

    2736 Execution

    The execution of every judgment entered in the Superior Court upon transcript under the provisions of this subchapter shall be by writ of levari facias in the following form:

    “__________ County, ss.:The State of Delaware.

    To the Sheriff of said County,

    Greeting: We command you that without any other writ from us, of the following described building and lot of ground, to wit (describing the same according to the record) in your bailiwick, you cause to be levied as well a certain debt of _______ which _______ lately before one of the justices of the peace for the County aforesaid recovered against ________. to be levied of the said building and lot of ground, as also the interest thereon from the .________ day of ._______ .D ..________ and also the sum of .______ for the costs which accrued thereon according to the form and effect of an Act of the General Assembly in such cases made and provided, and have you there the moneys before our Judges at _______ at our Superior Court in and for the County of ._______ there to be held on the .______ day of _______ next, to render unto the said ._____ for his debt, interest and costs aforesaid and have you then there this writ.”

    Witness (as in similar writs).

  • Florida, (post date:2013-04-23 22:58:45)

    Florida Lien Law

    Notice Req.
    Intent to Lien
    Lien Req.
    Prime Contractor

    No Notice to Owner/Notice to Contractor required. General Contractor files NOC on projects that are greater than $2,500.00

    Not Required

    90 days from last furnishing materials and/or labor. 1 year to foreclose unless there is a Contest of Lien which shortens lien rights to 60 days.

    Sub Contractor

    Notice to Owner within 45 days of commencing work. If you have specially fabricated material the clock starts ticking as soon as you start production.

    Not Required

    Lien must be recorded within 90 days from furnishing labor and/or matieral. 1 year to foreclose unless there is a Contest of Lien which shortens lien rights to 60 days.

    Suppliers/Other

    Notice to Owner within 45 days of commencing work. If you have specially fabricated material the clock starts ticking as soon as you start production.

    Not Required

    Lien must be recorded within 90 days from furnishing labor and/or matieral. 1 year to foreclose unless there is a Contest of Lien which shortens lien rights to 60 days.

    PRIVATE PROJECTS:

    Florida

    Notice to Owner/Notice to Contractor, Notice of Nonpayment, Claim on Bond, Liens

     

    1. Does Florida law require any notice of filing for the performance of private work to secure your lien rights?  

    Yes! If you do not have a direct contract with the owner of the property you must send a Notice to owner/Notice to Contractor within 45 days of commencing work.

    SECURE YOUR LIEN RIGHTS by sending a Notice to Owner/Notice to Contractor to Performance NOW!

     

    2. Are there any special rules for specialty fabricated material as to the time in which to send a Notice to Owner/Notice to Contractor?

    Yes! If you are specially fabricating materials for a specific job the time starts when you start fabrication, not when you deliver the fabrication to the property.

    SECURE YOUR LIEN RIGHTS by sending a Notice to Owner/Notice to Contractor to Performance NOW!

     

    3. Will Florida law need any notice or filing prior to work done on the site?

    Yes it does!   For General Contractors a Notice of Commencement must be recorded and posted on the jobsite before the work begins!

    GET PAID NOW Sign up with SunRay Construction Solutions!

     

    4. Are there any exceptions to which a Notice of Commencement is not required?

    Yes! Professional services such as surveying, engineering or designers are not required to file a Notice of Commencement.

     

    5. What if my contract is with the tenant and a short form of the lease or memorandum of the lease is recorded what are my rights?

    If you have a contract with a tenant you can lien the tenant’s interest if there is a short form of the lease or memorandum of the lease is recorded.  If not you may have rights to lien the fee simple’s interest.

     

    6. Does Florida law require any notice of filing for the performance of work to secure your Bond Claim rights for private work? 

    Yes! If you have a direct contract with the GC you are required to send a Notice to Owner/Notice to Contractor to all of the responsible properties including the bonding company.

    SECURE YOUR LIEN RIGHTS by sending a Notice to Owner/Notice to Contractor to Performance NOW!

     

     7. What if I am not paid and the project is bonded?

    You have 90 days from the last day you furnished labor and/or materials to a property to send a Notice of Nonpayment to the bonding company.

    GET PAID NOW Sign up with SunRay Construction Solutions!

     

    8. How much time do I have to lien a project?

    You have 90 days from the last day you are on the project to lien the project.

    GET PAID NOW Sign up with SunRay Construction Solutions!

     

    9. What if my lien is contested by the owner of the property?

    If the owner contests the lien your time to foreclose on a lien can be reduced from one year to 60 days or even 20 days depending on the method on which the owner chooses at the time.

     

     

     

     

    MILLER ACT STATUTE:

    The Florida “Little Miller Act”

     

    Florida Statutes, Title XVIII, Public Lands and Property, Chapter 255, Public Property and Publicly Owned Buildings, Section 255.05

    __________________________________________________________________________________

     

    Copyright © The Florida Legislature

     

    255.05 Bond of contractor constructing public buildings; form; action by materialmen.–

     

    (1)(a) Any person entering into a formal contract with the state or any county, city, or political subdivision thereof, or other public authority or private entity, for the construction of a public building, for the prosecution and completion of a public work, or for repairs upon a public building or public work shall be required, before commencing the work or before recommencing the work after a default or abandonment, to execute, deliver to the public owner, and record in the public records of the county where the improvement is located, a payment and performance bond with a surety insurer authorized to do business in this state as surety. A public entity may not require a contractor to secure a surety bond under this section from a specific agent or bonding company. The bond must state on its front page: the name, principal business address, and phone number of the contractor, the surety, the owner of the property being improved, and, if different from the owner, the contracting public entity; the contract number assigned by the contracting public entity; and a description of the project sufficient to identify it, such as a legal description or the street address of the property being improved, and a general description of the improvement. Such bond shall be conditioned upon the contractor’s performance of the construction work in the time and manner prescribed in the contract and promptly making payments to all persons defined in s. 713.01 who furnish labor, services, or materials for the prosecution of the work provided for in the contract. Any claimant may apply to the governmental entity having charge of the work for copies of the contract and bond and shall thereupon be furnished with a certified copy of the contract and bond. The claimant shall have a right of action against the contractor and surety for the amount due him or her, including unpaid finance charges due under the claimant’s contract. Such action shall not involve the public authority in any expense. When such work is done for the state and the contract is for $100,000 or less, no payment and performance bond shall be required. At the discretion of the official or board awarding such contract when such work is done for any county, city, political subdivision, or public authority, any person entering into such a contract which is for $200,000 or less may be exempted from executing the payment and performance bond. When such work is done for the state, the Secretary of Management Services may delegate to state agencies the authority to exempt any person entering into such a contract amounting to more than $100,000 but less than $200,000 from executing the payment and performance bond. In the event such exemption is granted, the officer or officials shall not be personally liable to persons suffering loss because of granting such exemption. The Department of Management Services shall maintain information on the number of requests by state agencies for delegation of authority to waive the bond requirements by agency and project number and whether any request for delegation was denied and the justification for the denial. Any provision in a payment bond furnished for public work contracts as provided by this subsection which restricts the classes of persons as defined in s. 713.01 protected by the bond or the venue of any proceeding relating to such bond is unenforceable.

     

    (b) The Department of Management Services shall adopt rules with respect to all contracts for $200,000 or less, to provide:

     

    1. Procedures for retaining up to 10 percent of each request for payment submitted by a contractor and procedures for determining disbursements from the amount retained on a pro rata basis to laborers, materialmen, and subcontractors, as defined in s. 713.01.

     

    2. Procedures for requiring certification from laborers, materialmen, and subcontractors, as defined in s. 713.01, prior to final payment to the contractor that such laborers, materialmen, and subcontractors have no claims against the contractor resulting from the completion of the work provided for in the contract.

     

    The state shall not be held liable to any laborer, materialman, or subcontractor for any amounts greater than the pro rata share as determined under this section.

     

    (c)1. The amount of the bond shall equal the contract price, except that for a contract in excess of $250 million, if the state, county, municipality, political subdivision, or other public entity finds that a bond in the amount of the contract price is not reasonably available, the public owner shall set the amount of the bond at the largest amount reasonably available, but not less than $250 million.

     

    2. For construction-management or design-build contracts, if the public owner does not include in the bond amount the cost of design or other nonconstruction services, the bond may not be conditioned on performance of such services or payment to persons furnishing such services. Notwithstanding paragraph (a), such a bond may exclude persons furnishing such services from the classes of persons protected by the bond.

     

    (2)(a)1. If a claimant is no longer furnishing labor, services, or materials on a project, a contractor or the contractor’s agent or attorney may elect to shorten the prescribed time in this paragraph within which an action to enforce any claim against a payment bond provided pursuant to this section may be commenced by recording in the clerk’s office a notice in substantially the following form:

     

    NOTICE OF CONTEST OF CLAIM

    AGAINST PAYMENT BOND

     

    To: (Name and address of claimant)

     

    You are notified that the undersigned contests your notice of nonpayment, dated _______________, __________, and served on the undersigned on _______________, __________, and that the time within which you may file suit to enforce your claim is limited to 60 days after the date of service of this notice.

     

    DATED on _______________, __________.

     

    Signed: (Contractor or Attorney)

     

    The claim of any claimant upon whom such notice is served and who fails to institute a suit to enforce his or her claim against the payment bond within 60 days after service of such notice shall be extinguished automatically. The clerk shall mail a copy of the notice of contest to the claimant at the address shown in the notice of nonpayment or most recent amendment thereto and shall certify to such service on the face of such notice and record the notice. Service is complete upon mailing.

     

    2. A claimant, except a laborer, who is not in privity with the contractor shall, before commencing or not later than 45 days after commencing to furnish labor, services, or materials for the prosecution of the work, furnish the contractor with a written notice that he or she intends to look to the bond for protection. A claimant who is not in privity with the contractor and who has not received payment for his or her labor, services, or materials shall deliver to the contractor and to the surety written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. The notice of nonpayment may be served at any time during the progress of the work or thereafter but not before 45 days after the first furnishing of labor, services, or materials, and not later than 90 days after the final furnishing of the labor, services, or materials by the claimant or, with respect to rental equipment, not later than 90 days after the date that the rental equipment was last on the job site available for use. Any notice of nonpayment served by a claimant who is not in privity with the contractor which includes sums for retainage must specify the portion of the amount claimed for retainage. No action for the labor, materials, or supplies may be instituted against the contractor or the surety unless both notices have been given. Notices required or permitted under this section may be served in accordance with s. 713.18. A claimant may not waive in advance his or her right to bring an action under the bond against the surety. In any action brought to enforce a claim against a payment bond under this section, the prevailing party is entitled to recover a reasonable fee for the services of his or her attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party’s costs, as allowed in equitable actions. The time periods for service of a notice of nonpayment or for bringing an action against a contractor or a surety shall be measured from the last day of furnishing labor, services, or materials by the claimant and shall not be measured by other standards, such as the issuance of a certificate of occupancy or the issuance of a certificate of substantial completion.

     

    (b) When a person is required to execute a waiver of his or her right to make a claim against the payment bond in exchange for, or to induce payment of, a progress payment, the waiver may be in substantially the following form:

     

    WAIVER OF RIGHT TO CLAIM

    AGAINST THE PAYMENT BOND

    (PROGRESS PAYMENT)

     

    The undersigned, in consideration of the sum of $_____, hereby waives its right to claim against the payment bond for labor, services, or materials furnished through (insert date) to (insert the name of your customer) on the job of (insert the name of the owner) , for improvements to the following described project:

     

    (description of project)

     

    This waiver does not cover any retention or any labor, services, or materials furnished after the date specified.

     

    DATED ON __________, _____.

     

    (Claimant)

     

    By:_______________

     

    (c) When a person is required to execute a waiver of his or her right to make a claim against the payment bond, in exchange for, or to induce payment of, the final payment, the waiver may be in substantially the following form:

     

    WAIVER OF RIGHT TO CLAIM

    AGAINST THE PAYMENT BOND (FINAL PAYMENT)

     

    The undersigned, in consideration of the final payment in the amount of $_____, hereby waives its right to claim against the payment bond for labor, services, or materials furnished to (insert the name of your customer) on the job of (insert the name of the owner) , for improvements to the following described project:

     

     

     

    (description of project)

     

     

     

    DATED ON __________, _____.

     

    (Claimant)

     

    By:_______________

     

    (d) A person may not require a claimant to furnish a waiver that is different from the forms in paragraphs (b) and (c).

     

    (e) A claimant who executes a waiver in exchange for a check may condition the waiver on payment of the check.

     

    (f) A waiver that is not substantially similar to the forms in this subsection is enforceable in accordance with its terms.

     

    (3) The bond required in subsection (1) may be in substantially the following form:

     

    PUBLIC CONSTRUCTION BOND

     

    Bond No. (enter bond number)

     

    BY THIS BOND, We _____, as Principal and _____, a corporation, as Surety, are bound to _____, herein called Owner, in the sum of $_____, for payment of which we bind ourselves, our heirs, personal representatives, successors, and assigns, jointly and severally.

     

    THE CONDITION OF THIS BOND is that if Principal:

     

    1. Performs the contract dated _____, _____, between Principal and Owner for construction of _____, the contract being made a part of this bond by reference, at the times and in the manner prescribed in the contract; and

     

    2. Promptly makes payments to all claimants, as defined in Section 255.05(1), Florida Statutes, supplying Principal with labor, materials, or supplies, used directly or indirectly by Principal in the prosecution of the work provided for in the contract; and

     

    3. Pays Owner all losses, damages, expenses, costs, and attorney’s fees, including appellate proceedings, that Owner sustains because of a default by Principal under the contract; and

     

    4. Performs the guarantee of all work and materials furnished under the contract for the time specified in the contract, then this bond is void; otherwise it remains in full force.

    Any action instituted by a claimant under this bond for payment must be in accordance with the notice and time limitation provisions in Section 255.05(2), Florida Statutes.

     

    Any changes in or under the contract documents and compliance or noncompliance with any formalities connected with the contract or the changes does not affect Surety’s obligation under this bond.

     

    DATED ON _____, _____.

     

    (Name of Principal)

     

    By (As Attorney in Fact)

     

    (Name of Surety)

     

    (4) The payment bond provisions of all bonds required by subsection (1) shall be construed and deemed statutory payment bonds furnished pursuant to this section and such bonds shall not under any circumstances be converted into common law bonds.

     

    (5) In addition to the provisions of chapter 47, any action authorized under this section may be brought in the county in which the public building or public work is being constructed or repaired. This subsection shall not apply to an action instituted prior to May 17, 1977.

     

    (6) All payment bond forms used by a public owner and all payment bonds executed pursuant to this section by a surety shall make reference to this section by number and shall contain reference to the notice and time limitation provisions in subsection (2).

     

    (7) In lieu of the bond required by this section, a contractor may file with the state, county, city, or other political authority an alternative form of security in the form of cash, a money order, a certified check, a cashier’s check, an irrevocable letter of credit, or a security of a type listed in part II of chapter 625. Any such alternative form of security shall be for the same purpose and be subject to the same conditions as those applicable to the bond required by this section. The determination of the value of an alternative form of security shall be made by the appropriate state, county, city, or other political subdivision.

     

    (8) When a contractor has furnished a payment bond pursuant to this section, he or she may, when the state, county, municipality, political subdivision, or other public authority makes any payment to the contractor or directly to a claimant, serve a written demand on any claimant who is not in privity with the contractor for a written statement under oath of his or her account showing the nature of the labor or services performed and to be performed, if any; the materials furnished; the materials to be furnished, if known; the amount paid on account to date; the amount due; and the amount to become due, if known, as of the date of the statement by the claimant. Any such demand to a claimant who is not in privity with the contractor must be served on the claimant at the address and to the attention of any person who is designated to receive the demand in the notice to contractor served by the claimant. The failure or refusal to furnish the statement does not deprive the claimant of his or her rights under the bond if the demand is not served at the address of the claimant or directed to the attention of the person designated to receive the demand in the notice to contractor. The failure to furnish the statement within 30 days after the demand, or the furnishing of a false or fraudulent statement, deprives the claimant who fails to furnish the statement, or who furnishes the false or fraudulent statement, of his or her rights under the bond. If the contractor serves more than one demand for statement of account on a claimant and none of the information regarding the account has changed since the claimant’s last response to a demand, the failure or refusal to furnish such statement does not deprive the claimant of his or her rights under the bond. The negligent inclusion or omission of any information deprives the claimant of his or her rights under the bond to the extent that the contractor can demonstrate prejudice from such act or omission by the claimant. The failure to furnish a response to a demand for statement of account does not affect the validity of any claim on the bond being enforced in a lawsuit filed before the date the demand for statement of account is received by the claimant.

     

    (9) On any public works project for which the public authority requires a performance and payment bond, suits at law and in equity may be brought and maintained by and against the public authority on any contract claim arising from breach of an express provision or an implied covenant of a written agreement or a written directive issued by the public authority pursuant to the written agreement. In any such suit, the public authority and the contractor shall have all of the same rights and obligations as a private person under a like contract except that no liability may be based on an oral modification of either the written contract or written directive. Nothing herein shall be construed to waive the sovereign immunity of the state and its political subdivisions from equitable claims and equitable remedies. The provisions of this subsection shall apply only to contracts entered into on or after July 1, 1999.

     

    (10) An action, except an action for recovery of retainage, must be instituted against the contractor or the surety on the payment bond or the payment provisions of a combined payment and performance bond within 1 year after the performance of the labor or completion of delivery of the materials or supplies. An action for recovery of retainage must be instituted against the contractor or the surety within 1 year after the performance of the labor or completion of delivery of the materials or supplies; however, such an action may not be instituted until one of the following conditions is satisfied:

     

    (a) The public entity has paid out the claimant’s retainage to the contractor, and the time provided under s. 218.735 or s. 255.073(3) for payment of that retainage to the claimant has expired;

     

    (b) The claimant has completed all work required under its contract and 70 days have passed since the contractor sent its final payment request to the public entity; or

     

    (c) At least 160 days have passed since reaching substantial completion of the construction services purchased, as defined in the contract, or if not defined in the contract, since reaching beneficial occupancy or use of the project.

     

    (d) The claimant has asked the contractor, in writing, for any of the following information and the contractor has failed to respond to the claimant’s request, in writing, within 10 days after receipt of the request:

     

    1. Whether the project has reached substantial completion, as that term is defined in the contract, or if not defined in the contract, if beneficial occupancy or use of the project has occurred.

     

    2. Whether the contractor has received payment of the claimant’s retainage, and if so, the date the retainage was received by the contractor.

     

    3. Whether the contractor has sent its final payment request to the public entity, and if so, the date on which the final payment request was sent.

     

    If none of the conditions described in paragraph (a), paragraph (b), paragraph (c), or paragraph (d) is satisfied and an action for recovery of retainage cannot be instituted within the 1-year limitation period set forth in this subsection, this limitation period shall be extended until 120 days after one of these conditions is satisfied.

    LIEN STATUTE:

    PART I

    CONSTRUCTION LIENS

    713.001 Short title of part.

    713.01 Definitions.

    713.012 Written notices, demands, or requests.

    713.015 Mandatory provisions for direct contracts.

    713.02 Types of lienors and exemptions.

    713.03 Liens for professional services.

    713.04 Subdivision improvements.

    713.05 Liens of persons in privity.

    713.06 Liens of persons not in privity; proper payments.

    713.07 Priority of liens.

    713.08 Claim of lien.

    713.09 Single claim of lien.

    713.10 Extent of liens.

    713.11 Liens for improving land in which the contracting party has no interest.

    713.12 Liens for improving real property under contract with husband or wife on property of the other or of both.

    713.13 Notice of commencement.

    713.132 Notice of termination.

    713.135 Notice of commencement and applicability of lien.

    713.14 Application of money to materials account.

    713.15 Repossession of materials not used.

    713.16 Demand for copy of contract and statements of account; form.

    713.165 Request for list of subcontractors and suppliers.

    713.17 Materials not attachable for debts of purchaser.

    713.18 Manner of serving notices and other instruments.

    713.19 Assignment of lien.

    713.20 Waiver or release of liens.

    713.21 Discharge of lien.

    713.22 Duration of lien.

    713.23 Payment bond.

    713.235 Waivers of right to claim against payment bond; forms.

    713.24 Transfer of liens to security.

    713.245 Conditional payment bond.

    713.25 Applicability of ch. 65-456.

    713.26 Redemption and sale.

    713.27 Interplead.

    713.28 Judgments in case of failure to establish liens; personal and deficiency judgments or decrees.

    713.29 Attorney’s fees.

    713.30 Other actions not barred.

    713.31 Remedies in case of fraud or collusion.

    713.32 Insurance proceeds liable for demands.

    713.33 Disbursing agent and others may rely on owner’s notices.

    713.345 Moneys received for real property improvements; penalty for misapplication.

    713.346 Payment on construction contracts.

    713.3471 Lender responsibilities with construction loans.

    713.35 Making or furnishing false statement.

    713.37 Rule of construction.

    713.001 Short title of part.—This part may be cited as the “Construction Lien Law.”

    History.—s. 1, ch. 90-109.

     

    713.01 Definitions.—As used in this part, the term:

    (1) “Abandoned property” means all tangible personal property that has been disposed of on public property in a wrecked, inoperative, or partially dismantled condition.

    (2) “Architect” means a person or firm that is authorized to practice architecture pursuant to chapter 481 or a general contractor who provides architectural services under a design-build contract authorized by s. 481.229(3).

    (3) “Claim of lien” means the claim recorded as provided in s. 713.08.

    (4) “Clerk’s office” means the office of the clerk of the circuit court of the county in which the real property is located.

    (5) “Commencement of the improvement” means the time of filing for record of the notice of commencement provided in s. 713.13.

    (6) “Contract” means an agreement for improving real property, written or unwritten, express or implied, and includes extras or change orders.

    (7) “Contract price” means the amount agreed upon by the contracting parties for performing all labor and services and furnishing all materials covered by their contract and must be increased or diminished by the price of extras or change orders, or by any amounts attributable to changes in the scope of the work or defects in workmanship or materials or any other breaches of the contract; but no penalty or liquidated damages between the owner and a contractor diminishes the contract price as to any other lienor. If no price is agreed upon by the contracting parties, this term means the value of all labor, services, or materials covered by their contract, with any increases and diminutions, as provided in this subsection. Allowance items are a part of the contract when accepted by the owner.

    (8) “Contractor” means a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it, or who takes over from a contractor as so defined the entire remaining work under such contract. The term “contractor” includes an architect, landscape architect, or engineer who improves real property pursuant to a design-build contract authorized by s. 489.103(16).

    (9) “Direct contract” means a contract between the owner and any other person.

    (10) “Engineer” means a person or firm that is authorized to practice engineering pursuant to chapter 471 or a general contractor who provides engineering services under a design-build contract authorized by s. 471.003(2)(i).

    (11) “Extras or change orders” means labor, services, or materials for improving real property authorized by the owner and added to or deleted from labor, services, or materials covered by a previous contract between the same parties.

    (12) “Final furnishing” means the last date that the lienor furnishes labor, services, or materials. Such date may not be measured by other standards, such as the issuance of a certificate of occupancy or the issuance of a certificate of final completion, and does not include correction of deficiencies in the lienor’s previously performed work or materials supplied. With respect to rental equipment, the term means the date that the rental equipment was last on the job site and available for use.

    (13) “Furnish materials” means supply materials which are incorporated in the improvement including normal wastage in construction operations; or specially fabricated materials for incorporation in the improvement, not including any design work, submittals, or the like preliminary to actual fabrication of the materials; or supply materials used for the construction and not remaining in the improvement, subject to diminution by the salvage value of such materials; and includes supplying rental equipment, but does not include supplying handtools. The delivery of materials to the site of the improvement is prima facie evidence of incorporation of such materials in the improvement. The delivery of rental equipment to the site of the improvement is prima facie evidence of the period of the actual use of the rental equipment from the delivery through the time the equipment is last available for use at the site, or 2 business days after the lessor of the rental equipment receives a written notice from the owner or the lessee of the rental equipment to pick up the equipment, whichever occurs first.

    (14) “Improve” means build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including the furnishing of carpet or rugs or appliances that are permanently affixed to the real property and final construction cleanup to prepare a structure for occupancy; or perform any labor or services or furnish any materials in grading, seeding, sodding, or planting for landscaping purposes, including the furnishing of trees, shrubs, bushes, or plants that are planted on the real property, or in equipping any improvement with fixtures or permanent apparatus or provide any solid-waste collection or disposal on the site of the improvement.

    (15) “Improvement” means any building, structure, construction, demolition, excavation, solid-waste removal, landscaping, or any part thereof existing, built, erected, placed, made, or done on land or other real property for its permanent benefit.

    (16) “Laborer” means any person other than an architect, landscape architect, engineer, surveyor and mapper, and the like who, under properly authorized contract, personally performs on the site of the improvement labor or services for improving real property and does not furnish materials or labor service of others.

    (17) “Lender” means any person who loans money to an owner for construction of an improvement to real property, who secures that loan by recording a mortgage on the real property, and who periodically disburses portions of the proceeds of that loan for the payment of the improvement.

    (18) “Lienor” means a person who is:

    (a) A contractor;

    (b) A subcontractor;

    (c) A sub-subcontractor;

    (d) A laborer;

    (e) A materialman who contracts with the owner, a contractor, a subcontractor, or a sub-subcontractor; or

    (f) A professional lienor under s. 713.03;

     

    and who has a lien or prospective lien upon real property under this part, and includes his or her successor in interest. No other person may have a lien under this part.

    (19) “Lienor giving notice” means any lienor, except a contractor, who has duly and timely served a notice to the owner and, if required, to the contractor and subcontractor, as provided in s. 713.06(2).

    (20) “Materialman” means any person who furnishes materials under contract to the owner, contractor, subcontractor, or sub-subcontractor on the site of the improvement or for direct delivery to the site of the improvement or, for specially fabricated materials, off the site of the improvement for the particular improvement, and who performs no labor in the installation thereof.

    (21) “Notice by lienor” means the notice to owner served as provided in s. 713.06(2).

    (22) “Notice of commencement” means the notice recorded as provided in s. 713.13.

    (23) “Owner” means a person who is the owner of any legal or equitable interest in real property, which interest can be sold by legal process, and who enters into a contract for the improvement of the real property. The term includes a condominium association pursuant to chapter 718 as to improvements made to association property or common elements. The term does not include any political subdivision, agency, or department of the state, a municipality, or other governmental entity.

    (24) “Perform” or “furnish” when used in connection with the words “labor” or “services” or “materials” means performance or furnishing by the lienor or by another for him or her.

    (25) “Post” or “posting” means placing the document referred to on the site of the improvement in a conspicuous place at the front of the site and in a manner that protects the document from the weather.

    (26) “Real property” means the land that is improved and the improvements thereon, including fixtures, except any such property owned by the state or any county, municipality, school board, or governmental agency, commission, or political subdivision.

    (27) “Site of the improvement” means the real property which is being improved and on which labor or services are performed or materials furnished in furtherance of the operations of improving such real property. In cases of removal, without demolition and under contract, of an improvement from one lot, parcel, or tract of land to another, this term means the real property to which the improvement is removed.

    (28) “Subcontractor” means a person other than a materialman or laborer who enters into a contract with a contractor for the performance of any part of such contractor’s contract, including the removal of solid waste from the real property. The term includes a temporary help firm as defined in s. 443.101.

    (29) “Sub-subcontractor” means a person other than a materialman or laborer who enters into a contract with a subcontractor for the performance of any part of such subcontractor’s contract, including the removal of solid waste from the real property. The term includes a temporary help firm as defined in s. 443.101.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254; s. 1, ch. 77-353; s. 1, ch. 80-97; s. 2, ch. 90-109; s. 1, ch. 91-102; s. 3, ch. 92-286; ss. 120, 317, ch. 94-119; s. 800, ch. 97-102; s. 2, ch. 98-135; s. 71, ch. 99-3; s. 2, ch. 2001-164; s. 4, ch. 2001-211; s. 2, ch. 2007-221.

    Note.—Former s. 84.011.

    713.012 Written notices, demands, or requests.—Notices, demands, or requests permitted or required under this part, except any required by s. 713.14, must be in writing.

    History.—s. 3, ch. 2007-221.

    713.015 Mandatory provisions for direct contracts.—

    (1) Any direct contract greater than $2,500 between an owner and a contractor, related to improvements to real property consisting of single or multiple family dwellings up to and including four units, must contain the following notice provision printed in no less than 12-point, capitalized, boldfaced type on the front page of the contract or on a separate page, signed by the owner and dated:

     

    ACCORDING TO FLORIDA’S CONSTRUCTION LIEN LAW (SECTIONS 713.001-713.37, FLORIDA STATUTES), THOSE WHO WORK ON YOUR PROPERTY OR PROVIDE MATERIALS AND SERVICES AND ARE NOT PAID IN FULL HAVE A RIGHT TO ENFORCE THEIR CLAIM FOR PAYMENT AGAINST YOUR PROPERTY. THIS CLAIM IS KNOWN AS A CONSTRUCTION LIEN. IF YOUR CONTRACTOR OR A SUBCONTRACTOR FAILS TO PAY SUBCONTRACTORS, SUB-SUBCONTRACTORS, OR MATERIAL SUPPLIERS, THOSE PEOPLE WHO ARE OWED MONEY MAY LOOK TO YOUR PROPERTY FOR PAYMENT, EVEN IF YOU HAVE ALREADY PAID YOUR CONTRACTOR IN FULL. IF YOU FAIL TO PAY YOUR CONTRACTOR, YOUR CONTRACTOR MAY ALSO HAVE A LIEN ON YOUR PROPERTY. THIS MEANS IF A LIEN IS FILED YOUR PROPERTY COULD BE SOLD AGAINST YOUR WILL TO PAY FOR LABOR, MATERIALS, OR OTHER SERVICES THAT YOUR CONTRACTOR OR A SUBCONTRACTOR MAY HAVE FAILED TO PAY. TO PROTECT YOURSELF, YOU SHOULD STIPULATE IN THIS CONTRACT THAT BEFORE ANY PAYMENT IS MADE, YOUR CONTRACTOR IS REQUIRED TO PROVIDE YOU WITH A WRITTEN RELEASE OF LIEN FROM ANY PERSON OR COMPANY THAT HAS PROVIDED TO YOU A “NOTICE TO OWNER.” FLORIDA’S CONSTRUCTION LIEN LAW IS COMPLEX, AND IT IS RECOMMENDED THAT YOU CONSULT AN ATTORNEY.

    (2)(a) If the contract is written, the notice must be in the contract document. If the contract is oral or implied, the notice must be provided in a document referencing the contract.

    (b) The failure to provide such written notice does not bar the enforcement of a lien against a person who has not been adversely affected.

    (c) This section may not be construed to adversely affect the lien and bond rights of lienors who are not in privity with the owner. This section does not apply when the owner is a contractor licensed under chapter 489 or is a person who created parcels or offers parcels for sale or lease in the ordinary course of business.

    History.—s. 1, ch. 2003-177; s. 5, ch. 2005-227; s. 4, ch. 2007-221.

    713.02 Types of lienors and exemptions.—

    (1) Persons performing the services described in s. 713.03 shall have rights to a lien on real property as provided in that section.

    (2) Persons performing services or furnishing materials for subdivision improvements as described in s. 713.04 shall have rights to a lien on real property as provided in that section.

    (3) Persons who are in privity with an owner and who perform labor or services or furnish materials constituting an improvement or part thereof shall have rights to a lien on real property as provided in s. 713.05.

    (4) Persons who are not in privity with an owner and who perform labor or services or furnish materials constituting a part of an improvement under the direct contract of another person shall have rights to a lien on real property as provided in s. 713.06.

    (5) Any improvement for which the direct contract price is $2,500 or less shall be exempt from all other provisions of this part except the provisions of s. 713.05.

    (6) The owner and contractor may agree that the contractor shall furnish a payment bond as provided in s. 713.23, and upon receipt of the bond the owner is exempt from the other provisions of this part as to that direct contract, but this does not exempt the owner from the lien of the contractor who furnishes the bond. If the bond is provided, it shall secure all liens subsequently accruing under this part as provided in s. 713.23.

    (7) Notwithstanding any other provision of this part, no lien shall exist in favor of any contractor, subcontractor, or sub-subcontractor who is unlicensed as provided in s. 489.128 or s. 489.532. Notwithstanding any other provision of this part, if a contract is rendered unenforceable by an unlicensed contractor, subcontractor, or sub-subcontractor pursuant to s. 489.128 or s. 489.532, such unenforceability shall not affect the rights of any other persons to enforce contract, lien, or bond remedies and shall not affect the obligations of a surety that has provided a bond on behalf of the unlicensed contractor, subcontractor, or sub-subcontractor. It shall not be a defense to any claim on a bond or indemnity agreement that the principal or indemnitor is unlicensed as provided in s. 489.128 or s. 489.532.

    History.—s. 1, ch. 63-135; s. 1, ch. 67-210; s. 35, ch. 67-254; s. 7, ch. 69-97; ss. 2, 17, ch. 77-353; s. 1, ch. 78-397; s. 2, ch. 87-74; s. 15, ch. 87-310; s. 3, ch. 88-397; s. 801, ch. 97-102; s. 5, ch. 2001-211; s. 3, ch. 2003-257; s. 6, ch. 2005-227; s. 5, ch. 2007-221.

    Note.—Former s. 84.022.

    713.03 Liens for professional services.—

    (1) Any person who performs services as architect, landscape architect, interior designer, engineer, or surveyor and mapper, subject to compliance with and the limitations imposed by this part, has a lien on the real property improved for any money that is owing to him or her for his or her services used in connection with improving the real property or for his or her services in supervising any portion of the work of improving the real property, rendered in accordance with his or her contract and with the direct contract.

    (2) Any architect, landscape architect, interior designer, engineer, or surveyor and mapper who has a direct contract and who in the practice of his or her profession shall perform services, by himself or herself or others, in connection with a specific parcel of real property and subject to said compliances and limitations, shall have a lien upon such real property for the money owing to him or her for his or her professional services, regardless of whether such real property is actually improved.

    (3) No liens under this section shall be acquired until a claim of lien is recorded. No lienor under this section shall be required to serve a notice to owner as provided in s. 713.06(2) or an affidavit concerning unpaid lienors as provided in s. 713.06(3).

    History.—s. 1, ch. 63-135; s. 1, ch. 65-456; s. 35, ch. 67-254; s. 3, ch. 77-353; s. 2, ch. 85-103; s. 3, ch. 90-109; s. 121, ch. 94-119; s. 802, ch. 97-102.

    Note.—Former s. 84.031.

    713.04 Subdivision improvements.—

    (1) Any lienor who, regardless of privity, performs services or furnishes material to real property for the purpose of making it suitable as the site for the construction of an improvement or improvements shall be entitled to a lien on the real property for any money that is owed to her or him for her or his services or materials furnished in accordance with her or his contract and the direct contract. The total amount of liens allowed under this section shall not exceed the amount of the direct contract under which the lienor furnishes labor, materials, or services. The work of making real property suitable as the site of an improvement shall include but shall not be limited to the grading, leveling, excavating, and filling of land, including the furnishing of fill soil; the grading and paving of streets, curbs, and sidewalks; the construction of ditches and other area drainage facilities; the laying of pipes and conduits for water, gas, electric, sewage, and drainage purposes; and the construction of canals and shall also include the altering, repairing, and redoing of all these things. When the services or materials are placed on land dedicated to public use and are furnished under contract with the owner of the abutting land, the cost of the services and materials, if unpaid, may be the basis for a lien upon the abutting land. When the services or materials are placed upon land under contract with the owner of the land who subsequently dedicates parts of the land to public use, the person furnishing the services or materials placed upon the dedicated land shall be entitled to a lien upon the land abutting the dedicated land for the unpaid cost of the services and materials placed upon the dedicated land, or in the case of improvements that serve or benefit real property that is divided by the improvements, to a lien upon each abutting part for the equitable part of the full amount due and owing. If the part of the cost to be borne by each parcel of the land subject to the same lien is not specified in the contract, it shall be prorated equitably among the parcels served or benefited. No lien under this section shall be acquired until a claim of lien is recorded. No notice of commencement shall be filed for liens under this section. No lienor shall be required to serve a notice to owner for liens under this section.

    (2) If a lienor under this section who is not in privity with the owner serves a notice on the owner in accordance with the provisions of s. 713.06(2), payment of lienors by the owner under this section shall be governed by s. 713.06(3)(c), (d), (e), (f), (g), (h), and (4).

    (3) The owner shall not pay any money on account of a direct contract before actual furnishing of labor and services or materials for subdivision improvements. Any payment not complying with such requirement shall not qualify as a proper payment under this chapter.

    (4) The owner shall make final payment on account of a direct contract only after the contractor complies with s. 713.06(3)(d). Any payment not complying with such requirement shall not qualify as a proper payment under this chapter.

    History.—s. 1, ch. 63-135; s. 2, ch. 65-456; s. 35, ch. 67-254; s. 2, ch. 80-97; s. 2, ch. 86-247; s. 803, ch. 97-102; s. 7, ch. 2005-227.

    Note.—Former s. 84.041.

    713.05 Liens of persons in privity.—A materialman or laborer, either of whom is in privity with the owner, or a contractor who complies with the provisions of this part shall, subject to the limitations thereof, have a lien on the real property improved for any money that is owed to him or her for labor, services, materials, or other items required by, or furnished in accordance with, the direct contract and for unpaid finance charges due under the lienor’s contract. A materialman or laborer, in privity with the owner, or a contractor shall also have a lien on the owner’s real property for any money that is owed to him or her for labor, services, or materials furnished to improve public property if the improvements to the public property are a condition of the permit to improve the owner’s real property. No lien under this section shall be acquired until a claim of lien is recorded. A lienor who, as a subcontractor, sub-subcontractor, laborer, or materialman not in privity with the owner, commences to furnish labor, services, or material to an improvement and who thereafter becomes in privity with the owner shall have a lien for any money that is owed to him or her for the labor, services, or materials furnished after he or she becomes in privity with the owner. A lienor may record one claim of lien to cover both his or her work done in privity with the owner and not in privity with the owner. No lienor under this section shall be required to serve a notice to owner as provided in s. 713.06(2). A lienor, except a laborer or materialman, who is in privity with the owner and claims a lien under this section shall furnish the contractor’s affidavit required in s. 713.06(3)(d). A contractor may claim a lien for any labor, services, or materials furnished by another lienor for which he or she is obligated to pay the lienor, regardless of the right of the lienor to claim a lien; but, if the lienor claims a valid lien, the contractor shall not recover the amount of the lien recovered by the lienor, and the amount of the contractor’s claim of lien may be reduced accordingly by court order. No person shall have a lien under this section except those lienors specified in it, as their designations are defined in s. 713.01.

    History.—s. 1, ch. 63-135; s. 3, ch. 65-456; s. 2, ch. 67-210; s. 35, ch. 67-254; s. 4, ch. 77-353; s. 3, ch. 80-97; s. 1, ch. 96-383; s. 1763, ch. 97-102.

    Note.—Former s. 84.051.

    713.06 Liens of persons not in privity; proper payments.—

    (1) A materialman or laborer, either of whom is not in privity with the owner, or a subcontractor or sub-subcontractor who complies with the provisions of this part and is subject to the limitations thereof, has a lien on the real property improved for any money that is owed to him or her for labor, services, or materials furnished in accordance with his or her contract and with the direct contract and for any unpaid finance charges due under the lienor’s contract. A materialman or laborer, either of whom is not in privity with the owner, or a subcontractor or sub-subcontractor who complies with the provisions of this part and is subject to the limitations thereof, also has a lien on the owner’s real property for labor, services, or materials furnished to improve public property if the improvement of the public property is furnished in accordance with his or her contract and with the direct contract. The total amount of all liens allowed under this part for furnishing labor, services, or material covered by any certain direct contract must not exceed the amount of the contract price fixed by the direct contract except as provided in subsection (3). No person may have a lien under this section except those lienors specified in it, as their designations are defined in s. 713.01.

    (2)(a) All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, must serve a notice on the owner setting forth the lienor’s name and address, a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished. A sub-subcontractor or a materialman to a subcontractor must serve a copy of the notice on the contractor as a prerequisite to perfecting a lien under this chapter and recording a claim of lien. A materialman to a sub-subcontractor must serve a copy of the notice to owner on the contractor as a prerequisite to perfecting a lien under this chapter and recording a claim of lien. A materialman to a sub-subcontractor shall serve the notice to owner on the subcontractor if the materialman knows the name and address of the subcontractor. The notice must be served before commencing, or not later than 45 days after commencing, to furnish his or her labor, services, or materials, but, in any event, before the date of the owner’s disbursement of the final payment after the contractor has furnished the affidavit under subparagraph (3)(d)1. The notice must be served regardless of the method of payments by the owner, whether proper or improper, and does not give to the lienor serving the notice any priority over other lienors in the same category; and the failure to serve the notice, or to timely serve it, is a complete defense to enforcement of a lien by any person. The serving of the notice does not dispense with recording the claim of lien. The notice is not a lien, cloud, or encumbrance on the real property nor actual or constructive notice of any of them.

    (b) If the owner, in his or her notice of commencement, has designated a person in addition to himself or herself to receive a copy of such lienor’s notice, as provided in s. 713.13(1)(b), the lienor shall serve a copy of his or her notice on the person so designated. The failure by the lienor to serve such copy, however, does not invalidate an otherwise valid lien.

    (c) The notice may be in substantially the following form and must include the information and the warning contained in the following form:

     

    WARNING! FLORIDA’S CONSTRUCTION LIEN LAW ALLOWS SOME UNPAID CONTRACTORS, SUBCONTRACTORS, AND MATERIAL SUPPLIERS TO FILE LIENS AGAINST YOUR PROPERTY EVEN IF YOU HAVE MADE PAYMENT IN FULL.

     

    UNDER FLORIDA LAW, YOUR FAILURE TO MAKE SURE THAT WE ARE PAID MAY RESULT IN A LIEN AGAINST YOUR PROPERTY AND YOUR PAYING TWICE.

     

    TO AVOID A LIEN AND PAYING TWICE, YOU MUST OBTAIN A WRITTEN RELEASE FROM US EVERY TIME YOU PAY YOUR CONTRACTOR.

     

    NOTICE TO OWNER

     

    To (Owner’s name and address)

     

    The undersigned hereby informs you that he or she has furnished or is furnishing services or materials as follows:

     

    (General description of services or materials) for the improvement of the real property identified as (property description) under an order given by .

     

    Florida law prescribes the serving of this notice and restricts your right to make payments under your contract in accordance with Section 713.06, Florida Statutes.

     

    IMPORTANT INFORMATION FOR

    YOUR PROTECTION

     

    Under Florida’s laws, those who work on your property or provide materials and are not paid have a right to enforce their claim for payment against your property. This claim is known as a construction lien.

     

    If your contractor fails to pay subcontractors or material suppliers or neglects to make other legally required payments, the people who are owed money may look to your property for payment, EVEN IF YOU HAVE PAID YOUR CONTRACTOR IN FULL.

     

    PROTECT YOURSELF:

     

    —RECOGNIZE that this Notice to Owner may result in a lien against your property unless all those supplying a Notice to Owner have been paid.

     

    —LEARN more about the Construction Lien Law, Chapter 713, Part I, Florida Statutes, and the meaning of this notice by contacting an attorney or the Florida Department of Business and Professional Regulation.

     

    (Lienor’s Signature)

     

    (Lienor’s Name)

     

    (Lienor’s Address)

     

    Copies to: (Those persons listed in Section 713.06(2)(a) and (b), Florida Statutes)

     

    The form may be combined with a notice to contractor given under s. 255.05 or s. 713.23 and, if so, may be entitled “NOTICE TO OWNER/NOTICE TO CONTRACTOR.”

    (d) A notice to an owner served on a lender must be in writing, must be served in accordance with s. 713.18, and shall be addressed to the persons designated, if any, and to the place and address designated in the notice of commencement. Any lender who, after receiving a notice provided under this subsection, pays a contractor on behalf of the owner for an improvement shall make proper payments as provided in paragraph (3)(c) as to each such notice received by the lender. The failure of a lender to comply with this paragraph renders the lender liable to the owner for all damages sustained by the owner as a result of that failure. This paragraph does not give any person other than an owner a claim or right of action against a lender for the failure of the lender to comply with this paragraph. Further, this paragraph does not prohibit a lender from disbursing construction funds at any time directly to the owner, in which event the lender has no obligation to make proper payments under this paragraph.

    (e) A lienor, in the absence of a recorded notice of commencement, may rely on the information contained in the building permit application to serve the notice prescribed in paragraphs (a), (b), and (c).

    (f) If a lienor has substantially complied with the provisions of paragraphs (a), (b), and (c), errors or omissions do not prevent the enforcement of a claim against a person who has not been adversely affected by such omission or error. However, a lienor must strictly comply with the time requirements of paragraph (a).

    (3) The owner may make proper payments on the direct contract as to lienors under this section, in the following manner:

    (a) If the description of the property in the notice prescribed by s. 713.13 is incorrect and the error adversely affects any lienor, payments made on the direct contract shall be held improperly paid to that lienor; but this does not apply to clerical errors when the description listed covers the property where the improvements are.

    (b) The owner may pay to any laborers the whole or any part of the amounts that shall then be due and payable to them respectively for labor or services performed by them and covered by the direct contract, and shall deduct the same from the balance due the contractor under a direct contract.

    (c) When any payment becomes due to the contractor on the direct contract, except the final payment:

    1. The owner shall pay or cause to be paid, within the limitations imposed by subparagraph 2., the sum then due to each lienor giving notice prior to the time of the payment. The owner may require, and, in such event, the contractor shall furnish as a prerequisite to requiring payment to himself or herself, an affidavit as prescribed in subparagraph (d)1., on any payment made, or to be made, on a direct contract, but the furnishing of the affidavit shall not relieve the owner of his or her responsibility to pay or cause to be paid all lienors giving notice. The owner shall be under no obligation to any lienor, except laborers, from whom he or she has not received a notice to owner at the time of making a payment.

    2. When the payment due is insufficient to pay all bills of lienors giving notice, the owner shall prorate the amount then due under the direct contract among the lienors giving notice pro rata in the manner prescribed in subsection (4). Lienors receiving money shall execute partial releases, as provided in s. 713.20(2), to the extent of the payment received.

    3. If any affidavit permitted hereunder recites any outstanding bills for labor, services, or materials, the owner may pay the bills in full direct to the person or firm to which they are due if the balance due on the direct contract at the time the affidavit is given is sufficient to pay the bills and shall deduct the amounts so paid from the balance of payment due the contractor. This subparagraph shall not create any obligation of the owner to pay any person who is not a lienor giving notice.

    4. No person furnishing labor or material, or both, who is required to serve a notice under paragraph (2)(a) and who did not serve the notice and whose time for service has expired shall be entitled to be paid by the owner because he or she is listed in an affidavit furnished by the contractor under subparagraph (c)1.

    5. If the contract is terminated before completion, the contractor shall comply with subparagraph (d)1.

    (d) When the final payment under a direct contract becomes due the contractor:

    1. The contractor shall give to the owner a final payment affidavit stating, if that be the fact, that all lienors under his or her direct contract who have timely served a notice to owner on the owner and the contractor have been paid in full or, if the fact be otherwise, showing the name of each such lienor who has not been paid in full and the amount due or to become due each for labor, services, or materials furnished. The affidavit must be in substantially the following form:

     

    CONTRACTOR’S FINAL PAYMENT AFFIDAVIT

     

    State of Florida

    County of

     

    Before me, the undersigned authority, personally appeared (name of affiant) , who, after being first duly sworn, deposes and says of his or her personal knowledge the following:

     

    1. He or she is the (title of affiant) , of (name of contractor’s business) , which does business in the State of Florida, hereinafter referred to as the “Contractor.”

     

    2. Contractor, pursuant to a contract with (name of owner) , hereinafter referred to as the “Owner,” has furnished or caused to be furnished labor, materials, and services for the construction of certain improvements to real property as more particularly set forth in said contract.

     

    3. This affidavit is executed by the Contractor in accordance with section 713.06 of the Florida Statutes for the purposes of obtaining final payment from the Owner in the amount of $ .

     

    4. All work to be performed under the contract has been fully completed, and all lienors under the direct contract have been paid in full, except the following listed lienors:

     

    NAME OF LIENOR AMOUNT DUE

     

    Signed, sealed, and delivered this day of , ,

     

    By (name of affiant)

     

    (title of affiant)

     

    (name of contractor’s business)

     

    Sworn to and subscribed before me this day of by (name of affiant) , who is personally known to me or produced as identification, and did take an oath.

     

    (name of notary public)

     

    Notary Public

     

    My Commission Expires:

     

    (date of expiration of commission)

     

    The contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit; however, the negligent inclusion or omission of any information in the affidavit which has not prejudiced the owner does not constitute a default that operates to defeat an otherwise valid lien. The contractor shall execute the affidavit and deliver it to the owner at least 5 days before instituting an action as a prerequisite to the institution of any action to enforce his or her lien under this chapter, even if the final payment has not become due because the contract is terminated for a reason other than completion and regardless of whether the contractor has any lienors working under him or her or not.

    2. If the contractor’s affidavit required in this subsection recites any outstanding bills for labor, services, or materials, the owner may, after giving the contractor at least 10 days’ written notice, pay such bills in full direct to the person or firm to which they are due, if the balance due on a direct contract at the time the affidavit is given is sufficient to pay them and lienors giving notice, and shall deduct the amounts so paid from the balance due the contractor. Lienors listed in said affidavit not giving notice, whose 45-day notice time has not expired, shall be paid in full or pro rata, as appropriate, from any balance then remaining due the contractor; but no lienor whose notice time has expired shall be paid by the owner or by any other person except the person with whom that lienor has a contract.

    3. If the balance due is not sufficient to pay in full all lienors listed in the affidavit and entitled to payment from the owner under this part and other lienors giving notice, the owner shall pay no money to anyone until such time as the contractor has furnished him or her with the difference; however, if the contractor fails to furnish the difference within 10 days from delivery of the affidavit or notice from the owner to the contractor to furnish the affidavit, the owner shall determine the amount due each lienor and shall disburse to them the amounts due from him or her on a direct contract in accordance with the procedure established by subsection (4).

    4. The owner shall have the right to rely on the contractor’s affidavit given under this paragraph in making the final payment, unless there are lienors giving notice who are not listed in the affidavit. If there are lienors giving notice who are not so listed, the owner may pay such lienors and any persons listed in the affidavit that are entitled to be paid by the owner under subparagraph 2. and shall thereupon be discharged of any further responsibility under the direct contract, except for any balance that may be due to the contractor.

    5. The owner shall retain the final payment due under the direct contract that shall not be disbursed until the contractor’s affidavit under subparagraph 1. has been furnished to the owner.

    6. When final payment has become due to the contractor and the owner fails to withhold as required by subparagraph 5., the property improved shall be subject to the full amount of all valid liens of which the owner has notice at the time the contractor furnishes his or her affidavit.

    (e) If the improvement is abandoned before completion, the owner shall determine the amount due each lienor giving notice and shall pay the same in full or prorate in the same manner as provided in subsection (4).

    (f) No contractor shall have any right to require the owner to pay any money to him or her under a direct contract if such money cannot be properly paid by the owner to the contractor in accordance with this section.

    (g) Except with written consent of the contractor, before paying any money directly to any lienor except the contractor or any laborer, the owner shall give the contractor at least 10 days’ written notice of his or her intention to do so, and the amount he or she proposes to pay each lienor.

    (h) When the owner has properly retained all sums required in this section to be retained but has otherwise made improper payments, the owner’s real property shall be liable to all laborers, subcontractors, sub-subcontractors, and materialmen complying with this chapter only to the extent of the retentions and the improper payments, notwithstanding the other provisions of this subsection. Any money paid by the owner on a direct contract, the payment of which is proved to have caused no detriment to any certain lienor, shall be held properly paid as to the lienor, and if any of the money shall be held not properly paid as to any other lienors, the entire benefit of its being held not properly paid as to them shall go to the lienors.

    (4)(a) In determining the amounts for which liens between lienors claiming under a direct contract shall be paid by the owner or allowed by the court within the total amount fixed by the direct contract and under the provisions of this section, the owner or court shall pay or allow such liens in the following order:

    1. Liens of all laborers.

    2. Liens of all persons other than the contractor.

    3. Lien of the contractor.

    (b) Should the total amount for which liens under such direct contract may be allowed be less than the total amount of liens under such contract in all classes above mentioned, all liens in a class shall be allowed for their full amounts before any liens shall be allowed to any subsequent class. Should the amount applicable to the liens of any single class be insufficient to permit all liens within that class to be allowed for their full amounts, each lien shall be allowed for its pro rata share of the total amount applicable to liens of that class; but if the same labor, services, or materials shall be covered by liens of more than one class, such labor, services, or materials shall be allowed only in the earliest class by which they shall be covered; and also if the same labor, services, or materials shall be covered by liens of two or more lienors of the same class, such labor, services, or materials shall be allowed only in the lien of the lienor farthest removed from the contractor. This section shall not be construed to affect the priority of liens derived under separate direct contracts.

    History.—s. 1, ch. 63-135; ss. 4, 5, ch. 65-456; s. 35, ch. 67-254; s. 1, ch. 75-227; s. 5, ch. 77-353; s. 4, ch. 80-97; s. 3, ch. 87-74; s. 4, ch. 90-109; s. 1, ch. 93-99; s. 318, ch. 94-119; s. 229, ch. 94-218; s. 2, ch. 96-383; s. 1764, ch. 97-102; s. 2, ch. 97-219; s. 3, ch. 98-135; s. 3, ch. 99-386; ss. 2, 3, ch. 2003-177.

    Note.—Former s. 84.061.

    713.07 Priority of liens.—

    (1) Liens under ss. 713.03 and 713.04 shall attach at the time of recordation of the claim of lien and shall take priority as of that time.

    (2) Liens under ss. 713.05 and 713.06 shall attach and take priority as of the time of recordation of the notice of commencement, but in the event a notice of commencement is not filed, then such liens shall attach and take priority as of the time the claim of lien is recorded.

    (3) All such liens shall have priority over any conveyance, encumbrance or demand not recorded against the real property prior to the time such lien attached as provided herein, but any conveyance, encumbrance or demand recorded prior to the time such lien attaches and any proceeds thereof, regardless of when disbursed, shall have priority over such liens.

    (4) If construction ceases or the direct contract is terminated before completion and the owner desires to recommence construction, he or she may pay all lienors in full or pro rata in accordance with s. 713.06(4) prior to recommencement in which event all liens for the recommenced construction shall take priority from such recommencement; or the owner may record an affidavit in the clerk’s office stating his or her intention to recommence construction and that all lienors giving notice have been paid in full except those listed therein as not having been so paid in which event 30 days after such recording, the rights of any person acquiring any interest, lien, or encumbrance on said property or of any lienor on the recommenced construction shall be paramount to any lien on the prior construction unless such prior lienor records a claim of lien within said 30-day period. A copy of said affidavit shall be served on each lienor named therein. Before recommencing, the owner shall record and post a notice of commencement for the recommenced construction, as provided in s. 713.13.

    History.—s. 1, ch. 63-135; s. 6, ch. 65-456; s. 35, ch. 67-254; s. 804, ch. 97-102; s. 6, ch. 2007-221.

    Note.—Former s. 84.071.

    713.08 Claim of lien.—

    (1) For the purpose of perfecting her or his lien under this part, every lienor, including laborers and persons in privity, shall record a claim of lien which shall state:

    (a) The name of the lienor and the address where notices or process under this part may be served on the lienor.

    (b) The name of the person with whom the lienor contracted or by whom she or he was employed.

    (c) The labor, services, or materials furnished and the contract price or value thereof. Materials specially fabricated at a place other than the site of the improvement for incorporation in the improvement but not so incorporated and the contract price or value thereof shall be separately stated in the claim of lien.

    (d) A description of the real property sufficient for identification.

    (e) The name of the owner.

    (f) The time when the first and the last item of labor or service or materials was furnished.

    (g) The amount unpaid the lienor for such labor or services or materials and for unpaid finance charges due under the lienor’s contract.

    (h) If the lien is claimed by a person not in privity with the owner, the date and method of service of the notice to owner. If the lien is claimed by a person not in privity with the contractor or subcontractor, the date and method of service of the copy of the notice on the contractor or subcontractor.

    (2) The claim of lien may be prepared by the lienor or the lienor’s employee or attorney and shall be signed and sworn to or affirmed by the lienor or the lienor’s agent acquainted with the facts stated therein.

    (3) The claim of lien shall be sufficient if it is in substantially the following form, and includes the following warning:

     

    WARNING!

     

    THIS LEGAL DOCUMENT REFLECTS THAT A CONSTRUCTION LIEN HAS BEEN PLACED ON THE REAL PROPERTY LISTED HEREIN. UNLESS THE OWNER OF SUCH PROPERTY TAKES ACTION TO SHORTEN THE TIME PERIOD, THIS LIEN MAY REMAIN VALID FOR ONE YEAR FROM THE DATE OF RECORDING, AND SHALL EXPIRE AND BECOME NULL AND VOID THEREAFTER UNLESS LEGAL PROCEEDINGS HAVE BEEN COMMENCED TO FORECLOSE OR TO DISCHARGE THIS LIEN.

     

    CLAIM OF LIEN

     

    State of

     

    County of

     

    Before me, the undersigned notary public, personally appeared , who was duly sworn and says that she or he is (the lienor herein) (the agent of the lienor herein ), whose address is ; and that in accordance with a contract with , lienor furnished labor, services, or materials consisting of on the following described real property in County, Florida:

     

    (Legal description of real property)

     

    owned by of a total value of $ , of which there remains unpaid $ , and furnished the first of the items on , (year) , and the last of the items on , (year) ; and (if the lien is claimed by one not in privity with the owner) that the lienor served her or his notice to owner on , (year) , by ; and (if required) that the lienor served copies of the notice on the contractor on , (year) , by and on the subcontractor, , on , (year) , by .

     

    (Signature)

     

    Sworn to (or affirmed) and subscribed before me this day of , (year) , by (name of person making statement) .

     

    (Signature of Notary Public – State of Florida)

     

    (Print, Type, or Stamp Commissioned Name of Notary Public)

     

    Personally Known OR Produced Identification

     

    Type of Identification Produced

     

    However, the negligent inclusion or omission of any information in the claim of lien which has not prejudiced the owner does not constitute a default that operates to defeat an otherwise valid lien.

    (4)(a) The omission of any of the foregoing details or errors in such claim of lien shall not, within the discretion of the trial court, prevent the enforcement of such lien as against one who has not been adversely affected by such omission or error.

    (b) Any claim of lien recorded as provided in this part may be amended at any time during the period allowed for recording such claim of lien, provided that such amendment shall not cause any person to suffer any detriment by having acted in good faith in reliance upon such claim of lien as originally recorded. Any amendment of the claim of lien shall be recorded in the same manner as provided for recording the original claim of lien.

    (c) The claim of lien shall be served on the owner. Failure to serve any claim of lien in the manner provided in s. 713.18 before recording or within 15 days after recording shall render the claim of lien voidable to the extent that the failure or delay is shown to have been prejudicial to any person entitled to rely on the service.

    (5) The claim of lien may be recorded at any time during the progress of the work or thereafter but not later than 90 days after the final furnishing of the labor or services or materials by the lienor. However, if the original contract is terminated under s. 713.07(4), a claim for a lien attaching prior to such termination may not be recorded after 90 days following the date of such termination or 90 days after the final furnishing of labor, services, or materials by the lienor, whichever occurs first. The claim of lien shall be recorded in the clerk’s office. If such real property is situated in two or more counties, the claim of lien shall be recorded in the clerk’s office in each of such counties. The recording of the claim of lien shall be constructive notice to all persons of the contents and effect of such claim. The validity of the lien and the right to record a claim therefor shall not be affected by the insolvency, bankruptcy, or death of the owner before the claim of lien is recorded.

    History.—s. 1, ch. 63-135; s. 7, ch. 65-456; s. 35, ch. 67-254; s. 6, ch. 77-353; s. 5, ch. 80-97; s. 4, ch. 92-286; s. 3, ch. 96-383; s. 1765, ch. 97-102; s. 13, ch. 98-246; s. 4, ch. 99-386; s. 4, ch. 2003-177; s. 8, ch. 2005-227; s. 7, ch. 2007-221.

    Note.—Former s. 84.081.

    713.09 Single claim of lien.—A lienor is required to record only one claim of lien covering his or her entire demand against the real property when the amount demanded is for labor or services or material furnished for more than one improvement under the same direct contract. The single claim of lien is sufficient even though the improvement is for one or more improvements located on separate lots, parcels, or tracts of land. If materials to be used on one or more improvements on separate lots, parcels, or tracts of land under one direct contract are delivered by a lienor to a place designated by the person with whom the materialman contracted, other than the site of the improvement, the delivery to the place designated is prima facie evidence of delivery to the site of the improvement and incorporation in the improvement. The single claim of lien may be limited to a part of multiple lots, parcels, or tracts of land and their improvements or may cover all of the lots, parcels, or tracts of land and improvements. In each claim of lien under this section, the owner under the direct contract must be the same person for all lots, parcels, or tracts of land against which a single claim of lien is recorded.

    History.—s. 1, ch. 63-135; s. 8, ch. 65-456; s. 35, ch. 67-254; s. 6, ch. 80-97; s. 5, ch. 90-109; s. 805, ch. 97-102.

    Note.—Former s. 84.091.

    713.10 Extent of liens.—

    (1) Except as provided in s. 713.12, a lien under this part shall extend to, and only to, the right, title, and interest of the person who contracts for the improvement as such right, title, and interest exists at the commencement of the improvement or is thereafter acquired in the real property. When an improvement is made by a lessee in accordance with an agreement between such lessee and her or his lessor, the lien shall extend also to the interest of such lessor.

    (2)(a) When the lease expressly provides that the interest of the lessor shall not be subject to liens for improvements made by the lessee, the lessee shall notify the contractor making any such improvements of such provision or provisions in the lease, and the knowing or willful failure of the lessee to provide such notice to the contractor shall render the contract between the lessee and the contractor voidable at the option of the contractor.

    (b) The interest of the lessor is not subject to liens for improvements made by the lessee when:

    1. The lease, or a short form or a memorandum of the lease that contains the specific language in the lease prohibiting such liability, is recorded in the official records of the county where the premises are located before the recording of a notice of commencement for improvements to the premises and the terms of the lease expressly prohibit such liability; or

    2. The terms of the lease expressly prohibit such liability, and a notice advising that leases for the rental of premises on a parcel of land prohibit such liability has been recorded in the official records of the county in which the parcel of land is located before the recording of a notice of commencement for improvements to the premises, and the notice includes the following:

    a. The name of the lessor.

    b. The legal description of the parcel of land to which the notice applies.

    c. The specific language contained in the various leases prohibiting such liability.

    d. A statement that all or a majority of the leases entered into for premises on the parcel of land expressly prohibit such liability.

    3. The lessee is a mobile home owner who is leasing a mobile home lot in a mobile home park from the lessor.

     

    A notice that is consistent with subparagraph 2. effectively prohibits liens for improvements made by a lessee even if other leases for premises on the parcel do not expressly prohibit liens or if provisions of each lease restricting the application of liens are not identical.

    (3) Any contractor or lienor under contract to furnish labor, services, or materials for improvements being made by a lessee may serve written demand on the lessor for a copy of the provision in the lease prohibiting liability for improvements made by the lessee, which copy shall be verified under s. 92.525. The demand must identify the lessee and the premises being improved and must be in a document that is separate from the notice to the owner as provided in s. 713.06(2). The interest of any lessor who does not serve a verified copy of the lease provision within 30 days after demand, or who serves a false or fraudulent copy, is subject to a lien under this part by the contractor or lienor who made the demand if the contractor or lienor has otherwise complied with this part and did not have actual notice that the interest of the lessor was not subject to a lien for improvements made by the lessee. The written demand must include a warning in conspicuous type in substantially the following form:

     

    WARNING

     

    YOUR FAILURE TO SERVE THE REQUESTED VERIFIED COPY WITHIN 30 DAYS OR THE SERVICE OF A FALSE COPY MAY RESULT IN YOUR PROPERTY BEING SUBJECT TO THE CLAIM OF LIEN OF THE PERSON REQUESTING THE VERIFIED COPY.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254; s. 1, ch. 85-103; s. 1, ch. 92-148; s. 806, ch. 97-102; s. 1, ch. 2011-212; s. 4, ch. 2012-211.

    Note.—Former s. 84.101.

    713.11 Liens for improving land in which the contracting party has no interest.—When the person contracting for improving real property has no interest as owner in the land, no lien shall attach to the land, except as provided in s. 713.12, but if removal of such improvement from the land is practicable, the lien of a lienor shall attach to the improvement on which he or she has performed labor or services or for which he or she has furnished materials. The court, in the enforcement of such lien, may order such improvement to be separately sold and the purchaser may remove it within such reasonable time as the court may fix. The purchase price for such improvement shall be paid into court. The owner of the land upon which the improvement was made may demand that the land be restored substantially to its condition before the improvement was commenced, in which case the court shall order its restoration and the reasonable charge therefor shall be first paid out of such purchase price and the remainder shall be paid to lienors and other encumbrancers in accordance with their respective rights.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254; s. 807, ch. 97-102.

    Note.—Former s. 84.111.

    713.12 Liens for improving real property under contract with husband or wife on property of the other or of both.—When the contract for improving real property is made with a husband or wife who is not separated and living apart from his or her spouse and the property is owned by the other or by both, the spouse who contracts shall be deemed to be the agent of the other to the extent of subjecting the right, title, or interest of the other in said property to liens under this part unless such other shall, within 10 days after learning of such contract, give the contractor and record in the clerk’s office, notice of his or her objection thereto.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254.

    Note.—Former s. 84.121.

    713.13 Notice of commencement.—

    (1)(a) Except for an improvement that is exempt pursuant to s. 713.02(5), an owner or the owner’s authorized agent before actually commencing to improve any real property, or recommencing completion of any improvement after default or abandonment, whether or not a project has a payment bond complying with s. 713.23, shall record a notice of commencement in the clerk’s office and forthwith post either a certified copy thereof or a notarized statement that the notice of commencement has been filed for recording along with a copy thereof. The notice of commencement shall contain the following information:

    1. A description sufficient for identification of the real property to be improved. The description should include the legal description of the property and also should include the street address and tax folio number of the property if available or, if there is no street address available, such additional information as will describe the physical location of the real property to be improved.

    2. A general description of the improvement.

    3. The name and address of the owner, the owner’s interest in the site of the improvement, and the name and address of the fee simple titleholder, if other than such owner. A lessee who contracts for the improvements is an owner as defined under s. 713.01(23) and must be listed as the owner together with a statement that the ownership interest is a leasehold interest.

    4. The name and address of the contractor.

    5. The name and address of the surety on the payment bond under s. 713.23, if any, and the amount of such bond.

    6. The name and address of any person making a loan for the construction of the improvements.

    7. The name and address within the state of a person other than himself or herself who may be designated by the owner as the person upon whom notices or other documents may be served under this part; and service upon the person so designated constitutes service upon the owner.

    (b) The owner, at his or her option, may designate a person in addition to himself or herself to receive a copy of the lienor’s notice as provided in s. 713.06(2)(b), and if he or she does so, the name and address of such person must be included in the notice of commencement.

    (c) If the contract between the owner and a contractor named in the notice of commencement expresses a period of time for completion for the construction of the improvement greater than 1 year, the notice of commencement must state that it is effective for a period of 1 year plus any additional period of time. Any payments made by the owner after the expiration of the notice of commencement are considered improper payments.

    (d) A notice of commencement must be in substantially the following form:

     

    Permit No. Tax Folio No.

     

    NOTICE OF COMMENCEMENT

     

    State of

     

    County of

     

    The undersigned hereby gives notice that improvement will be made to certain real property, and in accordance with Chapter 713, Florida Statutes, the following information is provided in this Notice of Commencement.

    1. Description of property: (legal description of the property, and street address if available) .

    2. General description of improvement: .

    3. Owner information or Lessee information if the Lessee contracted for the improvement:

    a. Name and address: .

    b. Interest in property: .

    c. Name and address of fee simple titleholder (if different from Owner listed above): .

    4.a. Contractor: (name and address) .

    b. Contractor’s phone number: .

    5. Surety (if applicable, a copy of the payment bond is attached):

    a. Name and address: .

    b. Phone number: .

    c. Amount of bond: $ .

    6.a. Lender: (name and address) .

    b. Lender’s phone number: .

    7. Persons within the State of Florida designated by Owner upon whom notices or other documents may be served as provided by Section 713.13(1)(a)7., Florida Statutes:

    a. Name and address: .

    b. Phone numbers of designated persons: .

    8.a. In addition to himself or herself, Owner designates of to receive a copy of the Lienor’s Notice as provided in Section 713.13(1)(b), Florida Statutes.

    b. Phone number of person or entity designated by owner: .

    9. Expiration date of notice of commencement (the expiration date will be 1 year from the date of recording unless a different date is specified) .

     

    WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13, FLORIDA STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF COMMENCEMENT.

     

    (Signature of Owner or Lessee, or Owner’s or Lessee’s Authorized Officer/Director/Partner/Manager)

     

    (Signatory’s Title/Office)

     

    The foregoing instrument was acknowledged before me this day of , (year) , by (name of person) as (type of authority, . . . e.g. officer, trustee, attorney in fact) for (name of party on behalf of whom instrument was executed) .

     

    (Signature of Notary Public – State of Florida)

     

    (Print, Type, or Stamp Commissioned Name of Notary Public)

     

    Personally Known OR Produced Identification

     

    Type of Identification Produced

    (e) A copy of any payment bond must be attached at the time of recordation of the notice of commencement. The failure to attach a copy of the bond to the notice of commencement when the notice is recorded negates the exemption provided in s. 713.02(6). However, if a payment bond under s. 713.23 exists but was not attached at the time of recordation of the notice of commencement, the bond may be used to transfer any recorded lien of a lienor except that of the contractor by the recordation and service of a notice of bond pursuant to s. 713.23(2). The notice requirements of s. 713.23 apply to any claim against the bond; however, the time limits for serving any required notices shall, at the option of the lienor, be calculated from the dates specified in s. 713.23 or the date the notice of bond is served on the lienor.

    (f) The giving of a notice of commencement is effective upon the filing of the notice in the clerk’s office.

    (g) The owner must sign the notice of commencement and no one else may be permitted to sign in his or her stead.

    (2) If the improvement described in the notice of commencement is not actually commenced within 90 days after the recording thereof, such notice is void and of no further effect.

    (3) The recording of a notice of commencement does not constitute a lien, cloud, or encumbrance on real property, but gives constructive notice that claims of lien under this part may be recorded and may take priority as provided in s. 713.07. The posting of a copy does not constitute a lien, cloud, or encumbrance on real property, nor actual or constructive notice of any of them.

    (4) This section does not apply to an owner who is constructing improvements described in s. 713.04.

    (5)(a) A notice of commencement that is recorded within the effective period may be amended to extend the effective period, change erroneous information in the original notice, or add information that was omitted from the original notice. However, in order to change contractors, a new notice of commencement or notice of recommencement must be executed and recorded.

    (b) The amended notice must identify the official records book and page where the original notice of commencement is recorded, and a copy of the amended notice must be served by the owner upon the contractor and each lienor who serves notice before or within 30 days after the date the amended notice is recorded.

    (6) Unless otherwise provided in the notice of commencement or a new or amended notice of commencement, a notice of commencement is not effectual in law or equity against a conveyance, transfer, or mortgage of or lien on the real property described in the notice, or against creditors or subsequent purchasers for a valuable consideration, after 1 year after the date of recording the notice of commencement.

    (7) A lender must, prior to the disbursement of any construction funds to the contractor, record the notice of commencement in the clerk’s office as required by this section; however, the lender is not required to post a certified copy of the notice at the construction site. The posting of the notice at the construction site remains the owner’s obligation. The failure of a lender to record the notice of commencement as required by this subsection renders the lender liable to the owner for all damages sustained by the owner as a result of the failure. Whenever a lender is required to record a notice of commencement, the lender shall designate the lender, in addition to others, to receive copies of notices to owner. This subsection does not give any person other than the owner a claim or right of action against a lender for failure to record a notice of commencement.

    History.—s. 1, ch. 63-135; s. 9, ch. 65-456; s. 35, ch. 67-254; s. 14, ch. 77-353; s. 7, ch. 80-97; s. 4, ch. 88-397; s. 6, ch. 90-109; s. 2, ch. 91-102; s. 4, ch. 96-383; s. 1766, ch. 97-102; s. 14, ch. 98-246; s. 6, ch. 2001-211; s. 9, ch. 2005-227; s. 8, ch. 2007-221; s. 2, ch. 2011-212; s. 5, ch. 2012-211.

    Note.—Former s. 84.131.

    713.132 Notice of termination.—

    (1) An owner may terminate the period of effectiveness of a notice of commencement by executing, swearing to, and recording a notice of termination that contains:

    (a) The same information as the notice of commencement;

    (b) The recording office document book and page reference numbers and date of the notice of commencement;

    (c) A statement of the date as of which the notice of commencement is terminated, which date may not be earlier than 30 days after the notice of termination is recorded;

    (d) A statement specifying that the notice applies to all the real property subject to the notice of commencement or specifying the portion of such real property to which it applies;

    (e) A statement that all lienors have been paid in full; and

    (f) A statement that the owner has, before recording the notice of termination, served a copy of the notice of termination on the contractor and on each lienor who has a direct contract with the owner or who has served a notice to owner. The owner is not required to serve a copy of the notice of termination on any lienor who has executed a waiver and release of lien upon final payment in accordance with s. 713.20.

    (2) An owner has the right to rely on a contractor’s affidavit given under s. 713.06(3)(d), except with respect to lienors who have already given notice, in connection with the execution, swearing to, and recording of a notice of termination. However, the notice of termination must be accompanied by the contractor’s affidavit.

    (3) An owner may not record a notice of termination except after completion of construction, or after construction ceases before completion and all lienors have been paid in full or pro rata in accordance with s. 713.06(4). If an owner or a contractor, by fraud or collusion, knowingly makes any fraudulent statement or affidavit in a notice of termination or any accompanying affidavit, the owner and the contractor, or either of them, as the case may be, is liable to any lienor who suffers damages as a result of the filing of the fraudulent notice of termination; and any such lienor has a right of action for damages occasioned thereby.

    (4) A notice of termination is effective to terminate the notice of commencement at the later of 30 days after recording of the notice of termination or the date stated in the notice of termination as the date on which the notice of commencement is terminated, if the notice of termination has been served pursuant to paragraph (1)(f) on the contractor and on each lienor who has a direct contract with the owner or who has served a notice to owner.

    History.—s. 7, ch. 90-109; s. 5, ch. 92-286; s. 3, ch. 97-219; s. 4, ch. 98-135; s. 7, ch. 2012-211.

    713.135 Notice of commencement and applicability of lien.—

    (1) When any person applies for a building permit, the authority issuing such permit shall:

    (a) Print on the face of each permit card in no less than 14-point, capitalized, boldfaced type: “WARNING TO OWNER: YOUR FAILURE TO RECORD A NOTICE OF COMMENCEMENT MAY RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN ATTORNEY BEFORE RECORDING YOUR NOTICE OF COMMENCEMENT.”

    (b) Provide the applicant and the owner of the real property upon which improvements are to be constructed with a printed statement stating that the right, title, and interest of the person who has contracted for the improvement may be subject to attachment under the Construction Lien Law. The Department of Business and Professional Regulation shall furnish, for distribution, the statement described in this paragraph, and the statement must be a summary of the Construction Lien Law and must include an explanation of the provisions of the Construction Lien Law relating to the recording, and the posting of copies, of notices of commencement and a statement encouraging the owner to record a notice of commencement and post a copy of the notice of commencement in accordance with s. 713.13. The statement must also contain an explanation of the owner’s rights if a lienor fails to furnish the owner with a notice as provided in s. 713.06(2) and an explanation of the owner’s rights as provided in s. 713.22. The authority that issues the building permit must obtain from the Department of Business and Professional Regulation the statement required by this paragraph and must mail, deliver by electronic mail or other electronic format or facsimile, or personally deliver that statement to the owner or, in a case in which the owner is required to personally appear to obtain the permit, provide that statement to any owner making improvements to real property consisting of a single or multiple family dwelling up to and including four units. However, the failure by the authorities to provide the summary does not subject the issuing authority to liability.

    (c) In addition to providing the owner with the statement as required by paragraph (b), inform each applicant who is not the person whose right, title, and interest is subject to attachment that, as a condition to the issuance of a building permit, the applicant must promise in good faith that the statement will be delivered to the person whose property is subject to attachment.

    (d) Furnish to the applicant two or more copies of a form of notice of commencement conforming with s. 713.13. If the direct contract is greater than $2,500, the applicant shall file with the issuing authority prior to the first inspection either a certified copy of the recorded notice of commencement or a notarized statement that the notice of commencement has been filed for recording, along with a copy thereof. In the absence of the filing of a certified copy of the recorded notice of commencement, the issuing authority or a private provider performing inspection services may not perform or approve subsequent inspections until the applicant files by mail, facsimile, hand delivery, or any other means such certified copy with the issuing authority. The certified copy of the notice of commencement must contain the name and address of the owner, the name and address of the contractor, and the location or address of the property being improved. The issuing authority shall verify that the name and address of the owner, the name of the contractor, and the location or address of the property being improved which is contained in the certified copy of the notice of commencement is consistent with the information in the building permit application. The issuing authority shall provide the recording information on the certified copy of the recorded notice of commencement to any person upon request. This subsection does not require the recording of a notice of commencement prior to the issuance of a building permit. If a local government requires a separate permit or inspection for installation of temporary electrical service or other temporary utility service, land clearing, or other preliminary site work, such permits may be issued and such inspections may be conducted without providing the issuing authority with a certified copy of a recorded notice of commencement or a notarized statement regarding a recorded notice of commencement. This subsection does not apply to a direct contract to repair or replace an existing heating or air-conditioning system in an amount less than $7,500.

    (e) Not require that a notice of commencement be recorded as a condition of the application for, or processing or issuance of, a building permit. However, this paragraph does not modify or waive the inspection requirements set forth in this subsection.

    (2) An issuing authority under subsection (1) is not liable in any civil action for the failure of the person whose property is subject to attachment to receive or to be delivered a printed statement stating that the right, title, and interest of the person who has contracted for the improvement may be subject to attachment under the Construction Lien Law.

    (3) An issuing authority under subsection (1) is not liable in any civil action for the failure to verify that a certified copy of the recorded notice of commencement has been filed in accordance with this section.

    (4) The several boards of county commissioners, municipal councils, or other similar bodies may by ordinance or resolution establish reasonable fees for furnishing copies of the forms and the printed statement provided in paragraphs (1)(b) and (d) in an amount not to exceed $5 to be paid by the applicant for each permit in addition to all other costs of the permit; however, no forms or statement need be furnished, mailed, or otherwise provided to, nor may such additional fee be obtained from, applicants for permits in those cases in which the owner of a legal or equitable interest (including that of ownership of stock of a corporate landowner) of the real property to be improved is engaged in the business of construction of buildings for sale to others and intends to make the improvements authorized by the permit on the property and upon completion will offer the improved real property for sale.

    (5) In addition to any other information required by the authority issuing the permit, each building permit application must contain:

    (a) The name and address of the owner of the real property;

    (b) The name and address of the contractor;

    (c) A description sufficient to identify the real property to be improved; and

    (d) The number or identifying symbol assigned to the building permit by the issuing authority, which number or symbol must be affixed to the application by the issuing authority.

    (6)(a) In addition to any other information required by the authority issuing the permit, the building permit application must be in substantially the following form:

     

    Tax Folio No.

     

    BUILDING PERMIT APPLICATION

     

    Owner’s Name

     

    Owner’s Address

     

    Fee Simple Titleholder’s Name (If other than owner)

     

    Fee Simple Titleholder’s Address (If other than owner)

     

    City

     

    State Zip

     

    Contractor’s Name

     

    Contractor’s Address

     

    City

     

    State Zip

     

    Job Name

     

    Job Address

     

    City County

     

    Legal Description

     

    Bonding Company

     

    Bonding Company Address

     

    City State

     

    Architect/Engineer’s Name

     

    Architect/Engineer’s Address

     

    Mortgage Lender’s Name

     

    Mortgage Lender’s Address

     

    Application is hereby made to obtain a permit to do the work and installations as indicated. I certify that no work or installation has commenced prior to the issuance of a permit and that all work will be performed to meet the standards of all laws regulating construction in this jurisdiction. I understand that a separate permit must be secured for ELECTRICAL WORK, PLUMBING, SIGNS, WELLS, POOLS, FURNACES, BOILERS, HEATERS, TANKS, and AIR CONDITIONERS, etc.

     

    OWNER’S AFFIDAVIT: I certify that all the foregoing information is accurate and that all work will be done in compliance with all applicable laws regulating construction and zoning.

     

    WARNING TO OWNER: YOUR FAILURE TO RECORD A NOTICE OF COMMENCEMENT MAY RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION.

     

    IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF COMMENCEMENT.

     

    (Signature of Owner or Agent)

     

    (including contractor)

     

    STATE OF FLORIDA

     

    COUNTY OF

     

    Sworn to (or affirmed) and subscribed before me this day of , (year) , by (name of person making statement) .

     

    (Signature of Notary Public – State of Florida)

     

    (Print, Type, or Stamp Commissioned Name of Notary Public)

     

    Personally Known OR Produced Identification

     

    Type of Identification Produced

     

    (Signature of Contractor)

     

    STATE OF FLORIDA

     

    COUNTY OF

     

    Sworn to (or affirmed) and subscribed before me this day of , (year) , by (name of person making statement) .

     

    (Signature of Notary Public – State of Florida)

     

    (Print, Type, or Stamp Commissioned Name of Notary Public)

     

    Personally Known OR Produced Identification

     

    Type of Identification Produced

     

    (Certificate of Competency Holder)

     

    Contractor’s State Certification or Registration No.

     

    Contractor’s Certificate of Competency No.

     

    APPLICATION APPROVED BY

    Permit Officer

    (b)1. Consistent with the requirements of paragraph (a), an authority responsible for issuing building permits under this section may accept a building permit application in an electronic format, as prescribed by the authority. Building permit applications submitted to the authority electronically must contain the following additional statement in lieu of the requirement in paragraph (a) that a signed, sworn, and notarized signature of the owner or agent and the contractor be part of the owner’s affidavit:

     

    OWNER’S ELECTRONIC SUBMISSION STATEMENT: Under penalty of perjury, I declare that all the information contained in this building permit application is true and correct.

    2. For purposes of implementing a “United States Department of Energy SunShot Initiative: Rooftop Solar Challenge” grant and the participation of county and municipal governments, including local permitting agencies under the jurisdiction of such county and municipal governments, an owner or contractor shall not be required to personally appear and provide a notarized signature when filing a building permit application, if such building permit application will be electronically submitted to the permitting authority, the application relates to a solar project, and the owner or contractor certifies the application, consistent with this paragraph, using the permitting authority’s electronic confirmation system. For purposes of this subsection, a “solar project” means installing, uninstalling, or replacing solar panels on single-family residential property, multifamily residential property, or commercial property.

    (c) An authority responsible for issuing building permit applications which accepts building permit applications in an electronic format shall provide public Internet access to the electronic building permit applications in a searchable format.

    (d) An authority responsible for issuing building permits which accepts building permit applications in an electronic format for solar projects, as defined in subparagraph (b)2., is not liable in any civil action for any inaccurate information submitted by an owner or contractor using the authority’s electronic confirmation system.

    (7) This section applies to every municipality and county in the state which now has or hereafter may have a system of issuing building permits for the construction of improvements or for the alteration or repair of improvements on or to real property located within the geographic limits of the issuing authority.

    History.—ss. 1, 2, 3, ch. 67-185; s. 2, ch. 78-397; s. 1, ch. 84-26; s. 1, ch. 86-247; s. 4, ch. 87-74; s. 8, ch. 90-109; s. 3, ch. 91-102; s. 2, ch. 93-99; s. 230, ch. 94-218; s. 5, ch. 96-383; s. 4, ch. 97-219; s. 15, ch. 98-246; s. 71, ch. 99-5; s. 5, ch. 99-386; s. 5, ch. 2003-177; s. 2, ch. 2006-187; s. 9, ch. 2007-221; s. 18, ch. 2012-13.

    713.14 Application of money to materials account.—

    (1) Any owner, contractor, subcontractor, or sub-subcontractor, in making any payment under, or properly applicable to, any contract to one with whom she or he has a running account, or with whom she or he has more than one contract, or to whom she or he is otherwise indebted, shall designate the contract under which the payment is made or the items of account to which it is to be applied. If she or he shall fail to do so or shall make a false designation, she or he shall be liable to anyone suffering a loss in consequence for the amount of the loss.

    (2) When a payment for materials is made to a subcontractor, sub-subcontractor, or materialman, the subcontractor, sub-subcontractor, or materialman shall demand of the person making the payment a designation of the account and the items of account to which the payment is to apply. In any case in which a lien is claimed for materials furnished by a subcontractor, sub-subcontractor, or materialman, it is a defense to the claim, to the extent of the payment made, to prove that a payment made by the owner to the contractor for the materials has been paid over to the subcontractor, sub-subcontractor, or materialman, and to prove also that when such payment was received by such subcontractor, sub-subcontractor, or materialman she or he did not demand a designation of the account and of the items of account to which the payment was to be applied or, receiving a designation of its application to the account for the materials, she or he failed to apply the payment in accordance therewith. This subsection is cumulative to any other defenses available to the person paying the materialman, subcontractor, or sub-subcontractor.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254; s. 7, ch. 77-353; s. 9, ch. 90-109; s. 808, ch. 97-102.

    Note.—Former s. 84.141.

    713.15 Repossession of materials not used.—If for any reason the completion of an improvement is abandoned or though the improvement is completed, materials delivered are not used therefor, a person who has delivered materials for the improvement which have not been incorporated therein and for which he or she has not received payment may peaceably repossess and remove such materials or replevy the same and thereupon he or she shall have no lien on the real property or improvements and no right against any persons for the price thereof, but shall have the same rights in regard to the materials as if he or she had never parted with their possession. This right to repossess and remove or replevy the materials shall not be affected by their sale, encumbrance, attachment, or transfer from the site of improvement, except that if the materials have been so transferred, the right to repossess or replevy them shall not be effective as against a purchaser or encumbrancer thereof in good faith whose interest therein is acquired after such transfer from the site of the improvement or as against a creditor attaching after such transfer. The right of repossession and removal given by this section shall extend only to materials whose purchase price does not exceed the amount remaining due to the person repossessing but where materials have been partly paid for, the person delivering them may repossess them as allowed in this section on refunding the part of the purchase price which has been paid.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254; s. 809, ch. 97-102.

    Note.—Former s. 84.151.

    713.16 Demand for copy of contract and statements of account; form.—

    (1) A copy of the contract of a lienor or owner and a statement of the amount due or to become due if fixed or ascertainable thereon must be furnished by any party thereto, upon written demand of an owner or a lienor contracting with or employed by the other party to such contract. If the owner or lienor refuses or neglects to furnish such copy of the contract or such statement, or willfully and falsely states the amount due or to become due if fixed or ascertainable under such contract, any person who suffers any detriment thereby has a cause of action against the person refusing or neglecting to furnish the same or willfully and falsely stating the amount due or to become due for his or her damages sustained thereby. The information contained in such copy or statement furnished pursuant to such written demand is binding upon the owner or lienor furnishing it unless actual notice of any modification is given to the person demanding the copy or statement before such person acts in good faith in reliance on it. The person demanding such documents must pay for the reproduction thereof; and, if such person fails or refuses to do so, he or she is entitled only to inspect such documents at reasonable times and places.

    (2) The owner may serve in writing a demand of any lienor for a written statement under oath of his or her account showing the nature of the labor or services performed and to be performed, if any, the materials furnished, the materials to be furnished, if known, the amount paid on account to date, the amount due, and the amount to become due, if known, as of the date of the statement by the lienor. Any such demand to a lienor must be served on the lienor at the address and to the attention of any person who is designated to receive the demand in the notice to owner served by such lienor and must include a description of the property and the names of the owner, the contractor, and the lienor’s customer, as set forth in the lienor’s notice to owner. The failure or refusal to furnish the statement does not deprive the lienor of his or her lien if the demand is not served at the address of the lienor or directed to the attention of the person designated to receive the demand in the notice to owner. The failure or refusal to furnish the statement under oath within 30 days after the demand, or the furnishing of a false or fraudulent statement, deprives the person so failing or refusing to furnish such statement of his or her lien. If the owner serves more than one demand for statement of account on a lienor and none of the information regarding the account has changed since the lienor’s last response to a demand, the failure or refusal to furnish such statement does not deprive the lienor of his or her lien. The negligent inclusion or omission of any information deprives the person of his or her lien to the extent the owner can demonstrate prejudice from such act or omission by the lienor. The failure to furnish a response to a demand for statement of account does not affect the validity of any claim of lien being enforced through a foreclosure case filed before the date the demand for statement is received by the lienor.

    (3) A request for sworn statement of account must be in substantially the following form:

     

    REQUEST FOR SWORN STATEMENT OF ACCOUNT

     

    WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT, SIGNED UNDER OATH, WITHIN 30 DAYS OR THE FURNISHING OF A FALSE STATEMENT WILL RESULT IN THE LOSS OF YOUR LIEN.

     

    To: (Lienor’s name and address)

     

    The undersigned hereby demands a written statement under oath of his or her account showing the nature of the labor or services performed and to be performed, if any, the materials furnished, the materials to be furnished, if known, the amount paid on account to date, the amount due, and the amount to become due, if known, as of the date of the statement for the improvement of real property identified as (property description) .

     

    (name of contractor)

     

    (name of the lienor’s customer, as set forth in the lienor’s Notice to Owner, if such notice has been served)

     

    (signature and address of owner)

     

    (date of request for sworn statement of account)

    (4) When a contractor has furnished a payment bond pursuant to s. 713.23, he or she may, when an owner makes any payment to the contractor or directly to a lienor, serve a written demand on any other lienor for a written statement under oath of his or her account showing the nature of the labor or services performed and to be performed, if any, the materials furnished, the materials to be furnished, if known, the amount paid on account to date, the amount due, and the amount to become due, if known, as of the date of the statement by the lienor. Any such demand to a lienor must be served on the lienor at the address and to the attention of any person who is designated to receive the demand in the notice to contractor served by such lienor. The demand must include a description of the property and the names of the owner, the contractor, and the lienor’s customer, as set forth in the lienor’s notice to contractor. The failure or refusal to furnish the statement does not deprive the lienor of his or her rights under the bond if the demand is not served at the address of the lienor or directed to the attention of the person designated to receive the demand in the notice to contractor. The failure to furnish the statement within 30 days after the demand, or the furnishing of a false or fraudulent statement, deprives the person who fails to furnish the statement, or who furnishes the false or fraudulent statement, of his or her rights under the bond. If the contractor serves more than one demand for statement of account on a lienor and none of the information regarding the account has changed since the lienor’s last response to a demand, the failure or refusal to furnish such statement does not deprive the lienor of his or her rights under the bond. The negligent inclusion or omission of any information deprives the person of his or her rights under the bond to the extent the contractor can demonstrate prejudice from such act or omission by the lienor. The failure to furnish a response to a demand for statement of account does not affect the validity of any claim on the bond being enforced in a lawsuit filed prior to the date the demand for statement of account is received by the lienor.

    (5)(a) Any lienor who is perfecting a claim of lien may serve with the claim of lien or thereafter a written demand on the owner for a written statement under oath showing:

    1. The amount of the direct contract under which the lien was recorded;

    2. The dates and amounts paid or to be paid by or on behalf of the owner for all improvements described in the direct contract;

    3. The reasonable estimated costs of completing the direct contract under which the lien was claimed pursuant to the scope of the direct contract; and

    4. If known, the actual cost of completion.

    (b) Any owner who does not provide the statement within 30 days after demand, or who provides a false or fraudulent statement, is not a prevailing party for purposes of an award of attorney fees under s. 713.29. The written demand must include the following warning in conspicuous type in substantially the following form:

     

    WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT WITHIN 30 DAYS OR THE FURNISHING OF A FALSE STATEMENT WILL RESULT IN THE LOSS OF YOUR RIGHT TO RECOVER ATTORNEY FEES IN ANY ACTION TO ENFORCE THE CLAIM OF LIEN OF THE PERSON REQUESTING THIS STATEMENT.

    (6) Any written demand served on the owner must include a description of the property and the names of the contractor and the lienor’s customer, as set forth in the lienor’s notice to owner.

    (7) For purposes of this section, the term “information” means the nature and quantity of the labor, services, and materials furnished or to be furnished by a lienor and the amount paid, the amount due, and the amount to become due on the lienor’s account.

    History.—s. 1, ch. 63-135; s. 10, ch. 65-456; s. 35, ch. 67-254; s. 8, ch. 77-353; s. 10, ch. 90-109; s. 6, ch. 92-286; s. 319, ch. 94-119; s. 6, ch. 96-383; s. 1767, ch. 97-102; s. 6, ch. 99-386; s. 10, ch. 2007-221; s. 8, ch. 2012-211.

    Note.—Former s. 84.161.

    713.165 Request for list of subcontractors and suppliers.—

    (1) An owner of real property may request from the contractor a list of all subcontractors and suppliers who have any contract with the contractor to furnish any material or to perform any service for the contractor with respect to the owner’s real property or improvement to the real property. The request must be in writing and delivered by registered or certified mail to the address of the contractor shown in the contract or the recorded notice of commencement.

    (2) The contractor must within 10 days after receipt of the property owner’s written request, furnish to the property owner or the property owner’s agent a list of the subcontractors and suppliers who have a contract with the contractor as of the date the request is received by the contractor. If the contractor fails to furnish the list, the contractor thereby forfeits the contractor’s right to assert a lien against the owner’s property to the extent the owner is prejudiced by the contractor’s failure to furnish the list or by any omissions from the list.

    (3) A list furnished under this section shall not constitute a notice to owner.

    History.—s. 7, ch. 95-240.

    713.17 Materials not attachable for debts of purchaser.—Whenever materials have been furnished to improve real property and payment therefor has not been made or waived, such materials shall not be subject to attachment, execution, or other legal process to enforce any debt due by the purchaser of such materials, except a debt due for the purchase price thereof, so long as in good faith the same are about to be applied to improve the real property; but if the owner has made payment for materials furnished and the materialman has not received payment therefor, such materials shall not be subject to attachment, execution, or other legal process to enforce the debt due for the purchase price.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254.

    Note.—Former s. 84.171.

    713.18 Manner of serving notices and other instruments.—

    (1) Service of notices, claims of lien, affidavits, assignments, and other instruments permitted or required under this part, or copies thereof when so permitted or required, unless otherwise specifically provided in this part, must be made by one of the following methods:

    (a) By actual delivery to the person to be served; if a partnership, to one of the partners; if a corporation, to an officer, director, managing agent, or business agent; or, if a limited liability company, to a member or manager.

    (b) By common carrier delivery service or by registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by the sender and with evidence of delivery, which may be in an electronic format.

    (c)  By posting on the site of the improvement if service as provided by paragraph (a) or paragraph (b) cannot be accomplished.

    (2) Notwithstanding subsection (1), service of a notice to owner or a preliminary notice to contractor under s. 255.05, s. 337.18, or s. 713.23 is effective as of the date of mailing if:

    (a) The notice is mailed by registered, Global Express Guaranteed, or certified mail, with postage prepaid, to the person to be served at any of the addresses set forth in subsection (3);

    (b) The notice is mailed within 40 days after the date the lienor first furnishes labor, services, or materials; and

    (c)1. The person who served the notice maintains a registered or certified mail log that shows the registered or certified mail number issued by the United States Postal Service, the name and address of the person served, and the date stamp of the United States Postal Service confirming the date of mailing; or

    2. The person who served the notice maintains electronic tracking records generated by the United States Postal Service containing the postal tracking number, the name and address of the person served, and verification of the date of receipt by the United States Postal Service.

    (3)(a) Service of an instrument pursuant to this section is effective on the date of mailing the instrument if it:

    1. Is sent to the last address shown in the notice of commencement or any amendment thereto or, in the absence of a notice of commencement, to the last address shown in the building permit application, or to the last known address of the person to be served; and

    2. Is returned as being “refused,” “moved, not forwardable,” or “unclaimed,” or is otherwise not delivered or deliverable through no fault of the person serving the item.

    (b) If the address shown in the notice of commencement or any amendment to the notice of commencement, or, in the absence of a notice of commencement, in the building permit application, is incomplete for purposes of mailing or delivery, the person serving the item may complete the address and properly format it according to United States Postal Service addressing standards using information obtained from the property appraiser or another public record without affecting the validity of service under this section.

    (4) A notice served by a lienor on one owner or one partner of a partnership owning the real property is deemed notice to all owners and partners.

    History.—s. 1, ch. 63-135; s. 11, ch. 65-456; s. 35, ch. 67-254; s. 10, ch. 87-405; s. 11, ch. 90-109; s. 7, ch. 96-383; s. 1768, ch. 97-102; s. 5, ch. 98-135; s. 7, ch. 99-386; ss. 7, 12, ch. 2001-211; s. 20, ch. 2003-2; s. 3, ch. 2006-187; s. 11, ch. 2007-221; s. 9, ch. 2012-211.

    Note.—Former s. 84.181.

    713.19 Assignment of lien.—A lien or prospective lien, except that of a laborer, may be assigned by the lienor at any time before its discharge. The assignment may be recorded in the clerk’s office.

    History.—s. 1, ch. 63-135; s. 12, ch. 65-456; s. 35, ch. 67-254.

    Note.—Former s. 84.191.

    713.20 Waiver or release of liens.—

    (1) The acceptance by the lienor of an unsecured note for all or any part of the amount of his or her demand shall not constitute a waiver of his or her lien therefor unless expressly so agreed in writing, nor shall it in any way affect the period for filing the notice under s. 713.06(2), or the claim of lien under s. 713.08.

    (2) A right to claim a lien may not be waived in advance. A lien right may be waived only to the extent of labor, services, or materials furnished. Any waiver of a right to claim a lien that is made in advance is unenforceable.

    (3) Any person may at any time waive, release, or satisfy any part of his or her lien under this part, either as to the amount due for labor, services, or materials furnished or for labor, services, or materials furnished through a certain date subject to exceptions specified at the time of release, or as to any part or parcel of the real property.

    (4) When a lienor is required to execute a waiver or release of lien in exchange for, or to induce payment of, a progress payment, the waiver or release may be in substantially the following form:

     

    WAIVER AND RELEASE OF LIEN

    UPON PROGRESS PAYMENT

     

    The undersigned lienor, in consideration of the sum of $ , hereby waives and releases its lien and right to claim a lien for labor, services, or materials furnished through (insert date) to (insert the name of your customer) on the job of (insert the name of the owner) to the following property:

     

    (description of property)

     

    This waiver and release does not cover any retention or labor, services, or materials furnished after the date specified.

     

    DATED on , (year) . (Lienor)

     

    By:

    (5) When a lienor is required to execute a waiver or release of lien in exchange for, or to induce payment of, the final payment, the waiver and release may be in substantially the following form:

     

    WAIVER AND RELEASE OF LIEN

    UPON FINAL PAYMENT

     

    The undersigned lienor, in consideration of the final payment in the amount of $ , hereby waives and releases its lien and right to claim a lien for labor, services, or materials furnished to (insert the name of your customer) on the job of (insert the name of the owner) to the following described property:

     

    (description of property)

     

    DATED on , (year) . (Lienor)

     

    By:

    (6) A person may not require a lienor to furnish a lien waiver or release of lien that is different from the forms in subsection (4) or subsection (5).

    (7) A lienor who executes a lien waiver and release in exchange for a check may condition the waiver and release on payment of the check. However, in the absence of a payment bond protecting the owner, the owner may withhold from any payment to the contractor the amount of any such unpaid check until any such condition is satisfied.

    (8) A lien waiver or lien release that is not substantially similar to the forms in subsections (4) and (5) is enforceable in accordance with the terms of the lien waiver or lien release.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254; s. 5, ch. 88-397; s. 8, ch. 96-383; s. 1769, ch. 97-102; s. 5, ch. 97-219; s. 30, ch. 99-6.

    Note.—Former s. 84.202.

    713.21 Discharge of lien.—A lien properly perfected under 1this chapter may be discharged by any of the following methods:

    (1) By entering satisfaction of the lien upon the margin of the record thereof in the clerk’s office when not otherwise prohibited by law. This satisfaction shall be signed by the lienor, the lienor’s agent or attorney and attested by said clerk. Any person who executes a claim of lien shall have authority to execute a satisfaction in the absence of actual notice of lack of authority to any person relying on the same.

    (2) By the satisfaction of the lienor, duly acknowledged and recorded in the clerk’s office. Any person who executes a claim of lien shall have authority to execute a satisfaction in the absence of actual notice of lack of authority to any person relying on the same.

    (3) By failure to begin an action to enforce the lien within the time prescribed in this part.

    (4) By an order of the circuit court of the county where the property is located, as provided in this subsection. Upon filing a complaint therefor by any interested party the clerk shall issue a summons to the lienor to show cause within 20 days why his or her lien should not be enforced by action or vacated and canceled of record. Upon failure of the lienor to show cause why his or her lien should not be enforced or the lienor’s failure to commence such action before the return date of the summons the court shall forthwith order cancellation of the lien.

    (5) By recording in the clerk’s office the original or a certified copy of a judgment or decree of a court of competent jurisdiction showing a final determination of the action.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254; s. 810, ch. 97-102.

    1Note.—The language “this chapter” predates inclusion of this material in chapter 713 and, when initially included in this section’s text, referred to former chapter 84, Mechanics Liens. The Florida Uniform Federal Lien Registration Act was enacted without reference to statutory placement by ch. 92-25, Laws of Florida, and was added as part IV of chapter 713 by the Division of Statutory Revision.

    Note.—Former s. 84.211.

    713.22 Duration of lien.—

    (1) A lien provided by this part does not continue for a longer period than 1 year after the claim of lien has been recorded or 1 year after the recording of an amended claim of lien that shows a later date of final furnishing of labor, services, or materials, unless within that time an action to enforce the lien is commenced in a court of competent jurisdiction. A lien that has been continued beyond the 1-year period by the commencement of an action is not enforceable against creditors or subsequent purchasers for a valuable consideration and without notice, unless a notice of lis pendens is recorded.

    (2) An owner or the owner’s attorney may elect to shorten the time prescribed in subsection (1) within which to commence an action to enforce any claim of lien or claim against a bond or other security under s. 713.23 or s. 713.24 by recording in the clerk’s office a notice in substantially the following form:

     

    NOTICE OF CONTEST OF LIEN

     

    To: (Name and address of lienor)

     

    You are notified that the undersigned contests the claim of lien filed by you on , (year) , and recorded in Book , Page , of the public records of County, Florida, and that the time within which you may file suit to enforce your lien is limited to 60 days from the date of service of this notice. This day of , (year) .

     

    Signed: (Owner or Attorney)

     

    The lien of any lienor upon whom such notice is served and who fails to institute a suit to enforce his or her lien within 60 days after service of such notice shall be extinguished automatically. The clerk shall serve, in accordance with s. 713.18, a copy of the notice of contest to the lien claimant at the address shown in the claim of lien or most recent amendment thereto and shall certify to such service and the date of service on the face of the notice and record the notice.

    History.—s. 1, ch. 63-135; s. 13, ch. 65-456; s. 35, ch. 67-254; s. 9, ch. 77-353; s. 811, ch. 97-102; s. 31, ch. 99-6; s. 12, ch. 2007-221; s. 10, ch. 2012-211.

    Note.—Former s. 84.221.

    713.23 Payment bond.—

    (1)(a) The payment bond required to exempt an owner under this part shall be furnished by the contractor in at least the amount of the original contract price before commencing the construction of the improvement under the direct contract, and a copy of the bond shall be attached to the notice of commencement when the notice of commencement is recorded. The bond shall be executed as surety by a surety insurer authorized to do business in this state and shall be conditioned that the contractor shall promptly make payments for labor, services, and material to all lienors under the contractor’s direct contract. Any form of bond given by a contractor conditioned to pay for labor, services, and material used to improve real property shall be deemed to include the condition of this subsection.

    (b) The owner, contractor, or surety shall furnish a true copy of the bond at the cost of reproduction to any lienor demanding it. Any person who fails or refuses to furnish the copy without justifiable cause shall be liable to the lienor demanding the copy for any damages caused by the refusal or failure.

    (c)  Before beginning or within 45 days after beginning to furnish labor, materials, or supplies, a lienor who is not in privity with the contractor, except a laborer, shall serve the contractor with notice in writing that the lienor will look to the contractor’s bond for protection on the work. If a notice of commencement with the attached bond is not recorded before commencement of construction, the lienor not in privity with the contractor may, in the alternative, elect to serve the notice to the contractor up to 45 days after the date the lienor is served with a copy of the bond. A notice to owner pursuant to s. 713.06 that has been timely served on the contractor satisfies the requirements of this paragraph. However, the limitation period for commencement of an action on the payment bond as established in paragraph (e) may not be expanded. The notice may be in substantially the following form and may be combined with a notice to owner given under s. 713.06 and, if so, may be entitled “NOTICE TO OWNER/NOTICE TO CONTRACTOR”:

     

    NOTICE TO CONTRACTOR

     

    To (name and address of contractor)

     

    The undersigned hereby informs you that he or she has furnished or is furnishing services or materials as follows:

     

    (general description of services or materials) for the improvement of the real property identified as (property description) under an order given by (lienor’s customer) .

     

    This notice is to inform you that the undersigned intends to look to the contractor’s bond to secure payment for the furnishing of materials or services for the improvement of the real property.

     

    (name of lienor)

     

    (signature of lienor or lienor’s representative)

    (date)

     

    (lienor’s address)

    (d) In addition, a lienor is required, as a condition precedent to recovery under the bond, to serve a written notice of nonpayment to the contractor and the surety not later than 90 days after the final furnishing of labor, services, or materials by the lienor. A written notice satisfies this condition precedent with respect to the payment described in the notice of nonpayment, including unpaid finance charges due under the lienor’s contract, and with respect to any other payments which become due to the lienor after the date of the notice of nonpayment. The time period for serving a written notice of nonpayment shall be measured from the last day of furnishing labor, services, or materials by the lienor and shall not be measured by other standards, such as the issuance of a certificate of occupancy or the issuance of a certificate of substantial completion. The failure of a lienor to receive retainage sums not in excess of 10 percent of the value of labor, services, or materials furnished by the lienor is not considered a nonpayment requiring the service of the notice provided under this paragraph. If the payment bond is not recorded before commencement of construction, the time period for the lienor to serve a notice of nonpayment may at the option of the lienor be calculated from the date specified in this section or the date the lienor is served a copy of the bond. However, the limitation period for commencement of an action on the payment bond as established in paragraph (e) may not be expanded. The notice under this paragraph may be in substantially the following form:

     

    NOTICE OF NONPAYMENT

     

    To (name of contractor and address)

     

    (name of surety and address)

     

    The undersigned notifies you that he or she has furnished (describe labor, services, or materials) for the improvement of the real property identified as (property description) . The amount now due and unpaid is $ .

     

    (signature and address of lienor)

    (e) An action for the labor or materials or supplies may not be instituted or prosecuted against the contractor or surety unless both notices have been given, if required by this section. An action may not be instituted or prosecuted against the contractor or against the surety on the bond under this section after 1 year from the performance of the labor or completion of delivery of the materials and supplies. The time period for bringing an action against the contractor or surety on the bond shall be measured from the last day of furnishing labor, services, or materials by the lienor. The time period may not be measured by other standards, such as the issuance of a certificate of occupancy or the issuance of a certificate of substantial completion. A contractor or the contractor’s attorney may elect to shorten the time within which an action to enforce any claim against a payment bond provided under this section or s. 713.245 must be commenced at any time after a notice of nonpayment, if required, has been served for the claim by recording in the clerk’s office a notice in substantially the following form:

     

    NOTICE OF CONTEST OF CLAIM

    AGAINST PAYMENT BOND

     

    To: (Name and address of lienor)

     

    You are notified that the undersigned contests your notice of nonpayment, dated , , and served on the undersigned on , , and that the time within which you may file suit to enforce your claim is limited to 60 days from the date of service of this notice.

     

    DATED on , .

     

    Signed: (Contractor or Attorney)

     

    The claim of any lienor upon whom the notice is served and who fails to institute a suit to enforce his or her claim against the payment bond within 60 days after service of the notice shall be extinguished automatically. The contractor or the contractor’s attorney shall serve a copy of the notice of contest to the lienor at the address shown in the notice of nonpayment or most recent amendment thereto and shall certify to such service on the face of the notice and record the notice.

    (f) A lienor has a direct right of action on the bond against the surety. Any provision in a payment bond issued on or after October 1, 2012, which further restricts the classes of persons who are protected by the payment bond, which restricts the venue of any proceeding relating to such payment bond, which limits or expands the effective duration of the payment bond, or which adds conditions precedent to the enforcement of a claim against a payment bond beyond those provided in this part is unenforceable. The surety is not entitled to the defense of pro tanto discharge as against any lienor because of changes or modifications in the contract to which the surety is not a party; but the liability of the surety may not be increased beyond the penal sum of the bond. A lienor may not waive in advance his or her right to bring an action under the bond against the surety.

    (2) The bond shall secure every lien under the direct contract accruing subsequent to its execution and delivery, except that of the contractor. Every claim of lien, except that of the contractor, filed subsequent to execution and delivery of the bond shall be transferred to it with the same effect as liens transferred under s. 713.24. Record notice of the transfer shall be effected by the contractor, or any person having an interest in the property against which the claim of lien has been asserted, by recording in the clerk’s office a notice, with the bond attached, in substantially the following form:

     

    NOTICE OF BOND

     

    To (Name and Address of Lienor)

     

    You are notified that the claim of lien filed by you on , , and recorded in Official Records Book at page of the public records of County, Florida, is secured by a bond, a copy being attached.

     

    Signed: (Name of person recording notice)

     

    The notice shall be verified. The person recording the notice of bond shall serve a copy of the notice with a copy of the bond to the lienor at the address shown in the claim of lien, or the most recent amendment to it; shall certify to the service on the face of the notice; and shall record the notice.

    (3) A payment bond in substantially the following form shall be sufficient:

     

    PAYMENT BOND

     

    BY THIS BOND We, , as Principal, and , a corporation, as Surety, are bound to , herein called Owner, in the sum of $ for the payment of which we bind ourselves, our heirs, personal representatives, successors, and assigns, jointly and severally.

     

    THE CONDITION OF THIS BOND is that if Principal:

     

    1. Promptly makes payments to all lienors supplying labor, material, and supplies used directly or indirectly by Principal in the prosecution of the work provided in the contract dated , , between Principal and Owner for construction of , the contract being made a part of this bond by reference; and

     

    2. Pays Owner all loss, damage, expenses, costs, and attorney’s fees, including appellate proceedings, that Owner sustains because of default by Principal under paragraph 1. of this bond;

     

    then this bond is void; otherwise, it remains in full force.

     

    Any changes in or under the contract documents and compliance or noncompliance with formalities connected with the contract or with the changes do not affect Surety’s obligation under this bond.

     

    DATED on , .

     

    (Principal)  (SEAL)

     

    (Surety’s name)

     

    By

     

    As Attorney in Fact

    (4) The provisions of s. 713.24(3) apply to bonds under this section except when those provisions conflict with this section.

    (5) A waiver and release of lien pursuant to s. 713.20 given by a lienor shall constitute a waiver and release in a like amount of the lienor’s right to make a claim against a payment bond under this section.

    History.—s. 1, ch. 63-135; s. 14, ch. 65-456; s. 35, ch. 67-254; s. 10, ch. 77-353; s. 8, ch. 80-97; s. 5, ch. 87-74; s. 6, ch. 88-397; s. 12, ch. 90-109; s. 812, ch. 97-102; s. 6, ch. 98-135; s. 32, ch. 99-6; s. 8, ch. 99-386; s. 8, ch. 2001-211; s. 10, ch. 2005-227; s. 11, ch. 2012-211.

    Note.—Former s. 84.231.

    713.235 Waivers of right to claim against payment bond; forms.—

    (1) When a person is required to execute a waiver of his or her right to make a claim against a payment bond provided pursuant to s. 713.23 or s. 713.245, in exchange for, or to induce payment of, a progress payment, the waiver may be in substantially the following form:

     

    WAIVER OF RIGHT TO CLAIM

    AGAINST THE PAYMENT BOND

    (PROGRESS PAYMENT)

     

    The undersigned, in consideration of the sum of $ hereby waives its right to claim against the payment bond for labor, services, or materials furnished through (insert date) , to (insert the name of your customer) on the job of (insert the name of the owner) , for improvements to the following described project:

     

    (description of project)

     

    This waiver does not cover any retention or any labor, services, or materials furnished after the date specified.

     

    DATED on

     

    (Lienor)

     

    By:

    (2) When a person is required to execute a waiver of his or her right to make a claim against a payment bond provided pursuant to s. 713.23 or s. 713.245, in exchange for, or to induce payment of, the final payment, the waiver may be in substantially the following form:

     

    WAIVER OF RIGHT TO CLAIM

    AGAINST THE PAYMENT BOND

    (FINAL PAYMENT)

     

    The undersigned, in consideration of the final payment in the amount of $ , hereby waives its right to claim against the payment bond for labor, services, or materials furnished to (insert the name of your customer) on the job of (insert the name of the owner) , for improvements to the following described project:

     

    (description of project)

     

    DATED on

     

    (Lienor)

     

    By:

    (3) A person may not require a claimant to furnish a waiver that is different from the forms in subsections (1) and (2).

    (4) A person who executes a waiver in exchange for a check may condition the waiver on payment of the check.

    (5) A waiver that is not substantially similar to the forms in this section is enforceable in accordance with its terms.

    History.—s. 7, ch. 98-135.

    713.24 Transfer of liens to security.—

    (1) Any lien claimed under this part may be transferred, by any person having an interest in the real property upon which the lien is imposed or the contract under which the lien is claimed, from such real property to other security by either:

    (a) Depositing in the clerk’s office a sum of money, or

    (b) Filing in the clerk’s office a bond executed as surety by a surety insurer licensed to do business in this state,

     

    either to be in an amount equal to the amount demanded in such claim of lien, plus interest thereon at the legal rate for 3 years, plus $1,000 or 25 percent of the amount demanded in the claim of lien, whichever is greater, to apply on any attorney’s fees and court costs that may be taxed in any proceeding to enforce said lien. Such deposit or bond shall be conditioned to pay any judgment or decree which may be rendered for the satisfaction of the lien for which such claim of lien was recorded. Upon making such deposit or filing such bond, the clerk shall make and record a certificate showing the transfer of the lien from the real property to the security and shall mail a copy thereof by registered or certified mail to the lienor named in the claim of lien so transferred, at the address stated therein. Upon filing the certificate of transfer, the real property shall thereupon be released from the lien claimed, and such lien shall be transferred to said security. In the absence of allegations of privity between the lienor and the owner, and subject to any order of the court increasing the amount required for the lien transfer deposit or bond, no other judgment or decree to pay money may be entered by the court against the owner. The clerk shall be entitled to a service charge for making and serving the certificate, in the amount of up to $20. If the transaction involves the transfer of multiple liens, an additional charge of up to $10 for each additional lien shall be charged. For recording the certificate and approving the bond, the clerk shall receive her or his usual statutory service charges as prescribed in s. 28.24. Any number of liens may be transferred to one such security.

    (2) Any excess of the security over the aggregate amount of any judgments or decrees rendered plus costs actually taxed shall be repaid to the party filing the same or her or his successor in interest. Any deposit of money shall be considered as paid into court and shall be subject to the provisions of law relative to payments of money into court and the disposition of same.

    (3) Any party having an interest in such security or the property from which the lien was transferred may at any time, and any number of times, file a complaint in chancery in the circuit court of the county where such security is deposited, or file a motion in a pending action to enforce a lien, for an order to require additional security, reduction of security, change or substitution of sureties, payment of discharge thereof, or any other matter affecting said security. If the court finds that the amount of the deposit or bond in excess of the amount claimed in the claim of lien is insufficient to pay the lienor’s attorney’s fees and court costs incurred in the action to enforce the lien, the court must increase the amount of the cash deposit or lien transfer bond. Nothing in this section shall be construed to vest exclusive jurisdiction in the circuit courts over transfer bond claims for nonpayment of an amount within the monetary jurisdiction of the county courts.

    (4) If a proceeding to enforce a transferred lien is not commenced within the time specified in s. 713.22 or if it appears that the transferred lien has been satisfied of record, the clerk shall return said security upon request of the person depositing or filing the same, or the insurer. If a proceeding to enforce a lien is commenced in a court of competent jurisdiction within the time specified in s. 713.22 and, during such proceeding, the lien is transferred pursuant to this section or s. 713.13(1)(e), an action commenced within 1 year after the transfer, unless otherwise shortened by operation of law, in the same county or circuit court to recover against the security shall be deemed to have been brought as of the date of filing the action to enforce the lien, and the court shall have jurisdiction over the action.

    History.—s. 1, ch. 63-135; s. 15, ch. 65-456; s. 35, ch. 67-254; s. 6, ch. 77-354; s. 6, ch. 87-74; s. 813, ch. 97-102; s. 8, ch. 98-135; s. 111, ch. 2003-402; s. 73, ch. 2004-265; s. 11, ch. 2005-227; s. 38, ch. 2008-111.

    Note.—Former s. 84.241.

    713.245 Conditional payment bond.—

    (1) Notwithstanding any provisions of ss. 713.23 and 713.24 to the contrary, if the contractor’s written contractual obligation to pay lienors is expressly conditioned upon and limited to the payments made by the owner to the contractor, the duty of the surety to pay lienors will be coextensive with the duty of the contractor to pay, if the following provisions are complied with:

    (a) The bond is listed in the notice of commencement for the project as a conditional payment bond and is recorded together with the notice of commencement for the project prior to commencement of the project.

    (b) The words “conditional payment bond” are contained in the title of the bond at the top of the front page.

    (c) The bond contains on the front page, in at least 10-point type, the statement: THIS BOND ONLY COVERS CLAIMS OF SUBCONTRACTORS, SUB-SUBCONTRACTORS, SUPPLIERS, AND LABORERS TO THE EXTENT THE CONTRACTOR HAS BEEN PAID FOR THE LABOR, SERVICES, OR MATERIALS PROVIDED BY SUCH PERSONS. THIS BOND DOES NOT PRECLUDE YOU FROM SERVING A NOTICE TO OWNER OR FILING A CLAIM OF LIEN ON THIS PROJECT.

    (2) Except as specified in this section, all bonds issued under this section must conform to the requirements of s. 713.23(1)(a), (b), (f), and (4). No action shall be instituted or prosecuted against the contractor or the surety after 1 year from the date the lien is transferred to the bond.

    (3) The owner’s property is not exempt from liens filed under this part. All lienors must comply with the provisions of this part to preserve and perfect those lien rights.

    (4) Within 90 days after a claim of lien is recorded for labor, services, or materials for which the contractor has been paid, the owner or the contractor may record a notice of bond as specified in s. 713.23(2), together with a copy of the bond and a sworn statement in substantially the following form:

     

    CERTIFICATE OF PAYMENT

    TO THE CONTRACTOR

     

    TO: Lienor (name and address from claim of lien)

     

    Contractor (name and address)

     

    Surety (name and address)

     

    Under penalties of perjury, the undersigned certifies that the bond recorded with this certificate conforms with s. 713.245, F.S., that the bond is in full force and effect, and that the contractor has been paid $ for the labor, services, and materials described in the Claim of Lien filed by dated , (year) , and recorded , (year) , in Official Records Book at Page of the Public Records of County, Florida.

     

    Dated this day of , (year) .

     

    (Owner)

     

    (Address)

     

     

     

     

     

    STATE OF FLORIDA

     

    COUNTY OF

     

    Sworn to (or affirmed) and subscribed before me this day of , (year) , by (name of person making statement) .

     

    (Signature of Notary Public – State of Florida)

     

    (Print, Type, or Stamp Commissioned Name of Notary Public)

     

    Personally Known OR Produced Identification

     

    Type of Identification Produced

     

    (Contractor)

     

    (Address)

     

     

     

     

     

    STATE OF FLORIDA

     

    COUNTY OF

     

    Sworn to (or affirmed) and subscribed before me this day of , (year) , by (name of person making statement) .

     

    (Signature of Notary Public – State of Florida)

     

    (Print, Type, or Stamp Commissioned Name of Notary Public)

     

    Personally Known OR Produced Identification

     

    Type of Identification Produced

     

    Any notice of bond recorded more than 90 days after the recording of the claim of lien shall have no force or effect as to that lien unless the owner, the contractor and the surety all sign the notice of bond.

    (5) The clerk shall serve a copy of the notice, the bond, and the certificate on the contractor, the surety, and the lienor; certify to the service on the face of the notice, the bond, and the certificate; record the notice, the bond, and the certificate; and collect a fee in accordance with s. 713.23(2).

    (6) The contractor may join in a certificate of payment to the contractor at any time by recording a sworn statement substantially in the following form:

     

    JOINDER IN CERTIFICATE OF PAYMENT

     

    TO: Owner (name and address from certificate of payment)

     

    Lienor (name and address from claim of lien)

     

    Surety (name and address)

     

    The undersigned joins in the Certificate of Payment to the Contractor recorded on , (year) , in Official Records Book at Page of the Public Records of County, Florida, and certifies that the facts stated in the Certificate of Payment to the Contractor are true and correct.

     

    Dated this day of , (year) .

     

    (Name)

     

    (Address)

     

     

     

     

     

    STATE OF FLORIDA

     

    COUNTY OF

     

    Sworn to (or affirmed) and subscribed before me this day of , (year) , by (name of person making statement) .

     

    (Signature of Notary Public – State of Florida)

     

    (Print, Type, or Stamp Commissioned Name of Notary Public)

     

    Personally Known OR Produced Identification

     

    Type of Identification Produced

    (7) The clerk shall serve the joinder in certificate of payment on the owner, the surety, and the lienor; certify to the service on the face of the joinder; record the joinder; and collect a fee in accordance with s. 713.23(2).

    (8) If the contractor disputes the certificate of payment to the contractor, the contractor must record, not later than 15 days after the date the clerk certifies service of the certificate, a sworn statement in substantially the following form:

     

    NOTICE OF CONTEST OF PAYMENT

     

    TO: Owner (name and address from certificate of payment)

     

    Lienor (name and address from claim of lien)

     

    Surety (name and address)

     

    Under penalties of perjury, the undersigned certifies that the contractor has not been paid or has only been paid $ for the labor, services, and materials described in the Certificate of Payment to the Contractor recorded in Official Records Book at Page of the Public Records of County, Florida.

     

    Dated this day of , (year) .

     

    (Name)

     

    (Address)

     

     

     

     

     

    STATE OF FLORIDA

     

    COUNTY OF

     

    Sworn to (or affirmed) and subscribed before me this day of , (year) , by (name of person making statement) .

     

    (Signature of Notary Public – State of Florida)

     

    (Print, Type, or Stamp Commissioned Name of Notary Public)

     

    Personally Known OR Produced Identification

     

    Type of Identification Produced

    (9) The clerk shall serve a copy of the notice of contest of payment on the owner, the lienor, and the surety; certify service on the face of the notice; record the notice; and collect a fee in accordance with s. 713.23(2).

    (10) If the contractor has signed the certificate of payment to the contractor or the joinder in the certificate or the contractor fails to record a notice of contest of payment within 15 days after the date the clerk certifies service of a certificate of payment to the contractor signed by the owner, the lien shall transfer to the bond to the extent of payment specified in the certificate of payment to the contractor. To the extent the lien exceeds the amount specified in the certificate of payment to the contractor, such amount shall remain as a lien on the owner’s property. The surety may assert all claims or defenses of the owner regarding the validity of the claim of lien or of the contractor regarding the amount due the lienor.

    (11) If the notice of contest of payment specifies that the contractor has been paid a portion of the amount due the lienor, the lien shall transfer to the bond to the extent of the payment specified in the notice of contest of payment. To the extent the lien exceeds the amount specified in the notice of contest of payment, such amount shall remain as a lien on the owner’s property. The surety may assert all claims or defenses of the owner regarding the validity of the claim of lien or of the contractor regarding the amount due the lienor.

    (12) If there are any material misstatements of fact made by the owner or the contractor in any certificate of payment to the contractor, or by the contractor in any notice of contest of payment, the person making the material misstatement is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The penalties apply individually and to the business entity if the false certificate is signed in a representative capacity.

    (13) The certificate of payment to the contractor and the notice of contest of payment must be signed by the owner or the contractor individually if she or he is a natural person, by the general partner if the owner or the contractor is a limited partnership, by a partner if the owner or the contractor is a general partnership, by the president or a vice president if the owner or the contractor is a corporation, or by any authorized agent if the owner or the contractor is any other type of business entity.

    (14) In an action to enforce a lien, the owner shall not be considered the prevailing party solely because the lien is transferred to a conditional payment bond after the action to enforce the lien is brought.

    History.—s. 13, ch. 90-109; s. 9, ch. 92-286; s. 3, ch. 93-99; s. 58, ch. 95-211; s. 814, ch. 97-102; s. 16, ch. 98-246; s. 9, ch. 2001-211.

    713.25 Applicability of ch. 65-456.—This act shall take effect on July 1, 1965, but shall not apply to any act required to be done within a time period which is running on that date nor shall apply to existing projects where its operation would impair vested rights.

    History.—s. 17, ch. 65-456; s. 35, ch. 67-254.

    Note.—Former s. 84.242.

    713.26 Redemption and sale.—The right of redemption upon all sales under this part shall exist in favor of the person whose interest is sold and may be exercised in the same manner as is or may be provided for redemption of real property from sales under mortgages.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254; s. 4, ch. 71-5.

    Note.—Former s. 84.251.

    713.27 Interplead.—An owner or other person holding funds for disbursement on an improvement shall have the right to interplead such lienor and any other person having or claiming to have an interest in the real property improved or a contract relating to the improvement thereof, whenever there is a dispute between lienors as to the amounts due or to become due them. If the court decrees the interpleader, it may transfer all claims to the funds held by the plaintiff. In such case the court shall require said fund to be deposited in registry of court and, effective upon such deposit, shall decree the real property to be free of all liens and claims of lien of the parties to the suit.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254.

    Note.—Former s. 84.271.

    713.28 Judgments in case of failure to establish liens; personal and deficiency judgments or decrees.—

    (1) If a lienor shall fail, for any reason, to establish a lien for the full amount found to be due him or her in an action to enforce the same under the provisions of this part, he or she may, in addition to the lien decreed in his or her favor, recover a judgment or decree in such action against any party liable therefor for such sums in excess of the lien as are due him or her or which the lienor might recover in an action on a contract against any party to the action from whom such sums are due him or her.

    (2) In any action heretofore or hereafter brought a court may, either before or after the final adjudication, award a summary money judgment or decree in favor of any party. This shall not preclude the rendition of other judgments or decrees in the action.

    (3) If, upon the sale of the real property under any judgment or decree there is a deficiency of proceeds to pay the amount of such judgment or decree, the judgment or decree may be enforced for the deficiency against any person liable therefor in the same manner and under the same conditions as deficiency decrees in mortgage foreclosures. Any payment made on account of any judgment or decree in favor of a party shall be credited on any other judgment or decree rendered in favor of that party in the same action.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254; s. 815, ch. 97-102.

    Note.—Former s. 84.281.

    713.29 Attorney’s fees.—In any action brought to enforce a lien or to enforce a claim against a bond under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party’s costs, as allowed in equitable actions.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254; s. 11, ch. 77-353; s. 14, ch. 90-109; s. 7, ch. 92-286; s. 816, ch. 97-102.

    Note.—Former s. 84.291.

    713.30 Other actions not barred.—This part shall be cumulative to other existing remedies and nothing contained in this part shall be construed to prevent any lienor or assignee under any contract from maintaining an action thereon at law in like manner as if he or she had no lien for the security of his or her debt, and the bringing of such action shall not prejudice his or her rights under this part, except as herein otherwise expressly provided.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254; s. 817, ch. 97-102.

    Note.—Former s. 84.301.

    713.31 Remedies in case of fraud or collusion.—

    (1) When the owner or any lienor shall, by fraud or collusion, deprive or attempt to deprive any lienor of benefits or rights to which such lienor is entitled under this part by establishing or manipulating the contract price or by giving false affidavits, releases, invoices, worthless checks, statements, or written instruments permitted or required under this part relating to the improvement of real property hereunder to the detriment of any such lienor, the circuit court in chancery shall have jurisdiction, upon a complaint filed by such lienor, to issue temporary and permanent injunctions, order accountings, grant discovery, utilize all remedies available under creditors’ bills and proceedings supplementary to execution, marshal assets, and exercise any other appropriate legal or equitable remedies or procedures without regard to the adequacy of a remedy at law or whether or not irreparable damage has or will be done.

    (2)(a) Any lien asserted under this part in which the lienor has willfully exaggerated the amount for which such lien is claimed or in which the lienor has willfully included a claim for work not performed upon or materials not furnished for the property upon which he or she seeks to impress such lien or in which the lienor has compiled his or her claim with such willful and gross negligence as to amount to a willful exaggeration shall be deemed a fraudulent lien.

    (b) It is a complete defense to any action to enforce a lien under this part, or against any lien in any action in which the validity of the lien is an issue, that the lien is a fraudulent lien; and the court so finding is empowered to and shall declare the lien unenforceable, and the lienor thereupon forfeits his or her right to any lien on the property upon which he or she sought to impress such fraudulent lien. However, a minor mistake or error in a claim of lien, or a good faith dispute as to the amount due does not constitute a willful exaggeration that operates to defeat an otherwise valid lien.

    (c) An owner against whose interest in real property a fraudulent lien is filed, or any contractor, subcontractor, or sub-subcontractor who suffers damages as a result of the filing of the fraudulent lien, shall have a right of action for damages occasioned thereby. The action may be instituted independently of any other action, or in connection with a summons to show cause under s. 713.21, or as a counterclaim or cross-claim to any action to enforce or to determine the validity of the lien. The prevailing party in an action under this paragraph may recover reasonable attorney’s fees and costs. If the lienor who files a fraudulent lien is not the prevailing party, the lienor shall be liable to the owner or the defrauded party who prevails in an action under this subsection in damages, which shall include court costs, clerk’s fees, a reasonable attorney’s fee and costs for services in securing the discharge of the lien, the amount of any premium for a bond given to obtain the discharge of the lien, interest on any money deposited for the purpose of discharging the lien, and punitive damages in an amount not exceeding the difference between the amount claimed by the lienor to be due or to become due and the amount actually due or to become due.

    (3) Any person who willfully files a fraudulent lien, as defined in this section, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A state attorney or the statewide prosecutor, upon the filing of an indictment or information against a contractor, subcontractor, or sub-subcontractor which charges such person with a violation of this subsection, shall forward a copy of the indictment or information to the Department of Business and Professional Regulation. The Department of Business and Professional Regulation shall promptly open an investigation into the matter, and if probable cause is found, shall furnish a copy of any investigative report to the state attorney or statewide prosecutor who furnished a copy of the indictment or information and to the owner of the property which is the subject of the investigation.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254; s. 12, ch. 77-353; s. 260, ch. 79-400; s. 9, ch. 80-97; s. 15, ch. 90-109; s. 8, ch. 95-240; s. 818, ch. 97-102; s. 6, ch. 2003-177; s. 13, ch. 2007-221.

    Note.—Former s. 84.311.

    713.32 Insurance proceeds liable for demands.—The proceeds of any insurance that by the terms of the policy contract are payable to the owner of improved real property or a lienor and actually received or to be received by him or her because of the damage, destruction, or removal by fire or other casualty of an improvement on which lienors have furnished labor or services or materials shall, after the owner or lienor, as the case may be, has been reimbursed therefrom for any premiums paid by him or her, be liable to liens or demands for payment provided by this part to the same extent and in the same manner, order of priority, and conditions as the real property or payments under a direct contract would have been, if the improvement had not been so damaged, destroyed, or removed. The insurer may pay the proceeds of the policy of insurance to the insured named in the policy and thereupon any liability of the insurer under this part shall cease. The named insured who receives any proceeds of the policy shall be deemed a trustee of the proceeds, and the proceeds shall be deemed trust funds for the purposes designated by this section for a period of 1 year from the date of receipt of the proceeds. This section shall not apply to that part of the proceeds of any policy of insurance payable to a person, including a mortgagee, who holds a lien perfected before the recording of the notice of commencement or recommencement.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254; s. 13, ch. 77-353; s. 819, ch. 97-102; s. 72, ch. 99-3.

    Note.—Former s. 84.321.

    713.33 Disbursing agent and others may rely on owner’s notices.—When the proceeds of a construction or improvement loan or any portion thereof are being disbursed by a person other than the owner, any affidavit, notice or other instrument which is permitted or required under this part to be furnished to the owner may be relied upon by such other person in making such disbursements to the same extent as the owner is entitled to rely upon the same.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254.

    Note.—Former s. 84.331.

    713.345 Moneys received for real property improvements; penalty for misapplication.—

    (1)(a) A person, firm, or corporation, or an agent, officer, or employee thereof, who receives any payment on account of improving real property must apply such portion of any payment to the payment of all amounts then due and owing for services and labor which were performed on, or materials which were furnished for, such improvement prior to receipt of the payment. This paragraph does not prevent any person from withholding any payment, or any part of a payment, in accordance with the terms of a contract for services, labor, or materials, or pursuant to a bona fide dispute regarding the amount due, if any, for such services, labor, or materials.

    (b) Any person who knowingly and intentionally fails to comply with paragraph (a) is guilty of misapplication of construction funds, punishable as follows:

    1. If the amount of payments misapplied has an aggregate value of $100,000 or more, the violator is guilty of a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    2. If the amount of payments misapplied has an aggregate value of $1,000 or more but less than $100,000, the violator is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    3. If the amount of payments misapplied has an aggregate value of less than $1,000, the violator is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    (c) A permissive inference that a person knowingly and intentionally misapplied construction funds in violation of this subsection is created when a valid lien has been recorded against the property of an owner for labor, services, or materials; the person who ordered the labor, services, or materials has received sufficient funds to pay for such labor, services, or materials; and the person has failed, for a period of at least 45 days from receipt of the funds, to remit sufficient funds to pay for such labor, services, or materials, except for funds withheld pursuant to paragraph (a).

    (d) A state attorney or the statewide prosecutor, upon the filing of an indictment or information against a contractor, subcontractor, or sub-subcontractor which charges such person with a violation of paragraph (b), shall forward a copy of the indictment or information to the Department of Business and Professional Regulation. The Department of Business and Professional Regulation shall promptly open an investigation into the matter and, if probable cause is found, shall furnish a copy of any investigative report to the state attorney or statewide prosecutor who furnished a copy of the indictment or information and to the owner of the property which is the subject of the investigation.

    (2) This section does not apply to mortgage bankers or their agents, servants, or employees for their acts in the usual course of the business of lending or disbursing mortgage funds.

    History.—s. 1, ch. 87-74; s. 7, ch. 88-397; s. 17, ch. 90-109; s. 7, ch. 2003-177; s. 12, ch. 2005-227.

    713.346 Payment on construction contracts.—

    (1) Any person who receives a payment for constructing or altering permanent improvements to real property shall pay, in accordance with the contract terms, the undisputed contract obligations for labor, services, or materials provided on account of such improvements.

    (2) The failure to pay any undisputed obligations for such labor, services, or materials within 30 days after the date the labor, services, or materials were furnished and payment for such labor, services, or materials became due, or within 30 days after the date payment for such labor, services, or materials is received, whichever last occurs, shall entitle any person providing such labor, services, or materials to the procedures specified in subsection (3) and the remedies provided in subsection (4).

    (3) Any person providing labor, services, or materials for improvements to real property may file a verified complaint alleging:

    (a) The existence of a contract, as defined in s. 713.01, to improve real property.

    (b) A description of the labor, services, or materials provided and alleging that the labor, services, or materials were provided in accordance with the contract.

    (c) The amount of the contract price.

    (d) The amount, if any, paid pursuant to the contract.

    (e) The amount that remains unpaid pursuant to the contract, and the amount thereof that is undisputed.

    (f) That the undisputed amount has remained due and payable pursuant to the contract for more than 30 days after the date the labor or services were accepted or the materials were received.

    (g) That the person against whom the complaint was filed has received payment on account of the labor, services, or materials described in the complaint more than 30 days prior to the date the complaint was filed.

    (4) After service of the complaint, the court shall conduct an evidentiary hearing on the complaint, upon not less than 15 days’ written notice. The person providing labor, services, or materials is entitled to the following remedies to the extent of the undisputed amount due for labor or services performed or materials supplied, and upon proof of each allegation in the complaint:

    (a) An accounting of the use of any such payment from the person who received such payment.

    (b) A temporary injunction against the person who received the payment, subject to the bond requirements specified in the Florida Rules of Civil Procedure.

    (c) Prejudgment attachment against the person who received the payment, in accordance with each of the requirements of chapter 76.

    (d) Such other legal or equitable remedies as may be appropriate in accordance with the requirements of the law.

    (5) The remedies specified in subsection (4) must be granted without regard to any other remedy at law and without regard to whether or not irreparable damage has occurred or will occur.

    (6) The remedies specified in subsection (4) do not apply:

    (a) To the extent of a bona fide dispute regarding any portion of the contract price.

    (b) In the event the plaintiff has committed a material breach of the contract which would relieve the defendant from the obligations under the contract.

    (7) The prevailing party in any proceeding under this section is entitled to recover costs, including a reasonable attorney’s fee, at trial and on appeal.

    History.—s. 8, ch. 88-397; s. 18, ch. 90-109.

    713.3471 Lender responsibilities with construction loans.—

    (1) Prior to a lender making any loan disbursement on any construction loan secured by residential real property directly to the owner, which, for purposes of this subsection, means only a natural person, into the owner’s account or accounts, or jointly to the owner and any other party, the lender shall mail, deliver by electronic mail or other electronic format or facsimile, or personally deliver the following written notice to the borrowers in bold type larger than any other type on the page:

     

    WARNING!

     

    YOUR LENDER IS MAKING A LOAN DISBURSEMENT DIRECTLY TO YOU AS THE BORROWER, OR JOINTLY TO YOU AND ANOTHER PARTY. TO PROTECT YOURSELF FROM HAVING TO PAY TWICE FOR THE SAME LABOR, SERVICES, OR MATERIALS USED IN MAKING THE IMPROVEMENTS TO YOUR PROPERTY, BE SURE THAT YOU REQUIRE YOUR CONTRACTOR TO GIVE YOU LIEN RELEASES FROM EACH LIENOR WHO HAS SENT YOU A NOTICE TO OWNER EACH TIME YOU MAKE A PAYMENT TO YOUR CONTRACTOR.

     

    This subsection does not apply when the owner is a contractor licensed under chapter 489 or is a person who creates parcels or offers parcels for sale or lease in the ordinary course of business.

    (2)(a) Within 5 business days after a lender makes a final determination, prior to the distribution of all funds available under a construction loan, that the lender will cease further advances pursuant to the loan, the lender shall serve written notice of that decision on the contractor and on any other lienor who has given the lender notice. The lender shall not be liable to the contractor based upon the decision of the lender to cease further advances if the lender gives the contractor notice of such decision in accordance with this subsection and the decision is otherwise permitted under the loan documents.

    (b) The failure to give notice to the contractor under paragraph (a) renders the lender liable to the contractor to the extent of the actual value of the materials and direct labor costs furnished by the contractor plus 15 percent for overhead, profit, and all other costs from the date on which notice of the lender’s decision should have been served on the contractor and the date on which notice of the lender’s decision is served on the contractor. The lender and the contractor may agree in writing to any other reasonable method for determining the value of the labor, services, and materials furnished by the contractor.

    (c) The liability of the lender shall in no event be greater than the amount of undisbursed funds at the time the notice should have been given unless the failure to give notice was done for the purpose of defrauding the contractor. The lender is not liable to the contractor for consequential or punitive damages for failure to give timely notice under this subsection. The contractor shall have a separate cause of action against the lender for damages sustained as the result of the lender’s failure to give timely notice under this subsection. Such separate cause of action may not be used to hinder or delay any foreclosure action filed by the lender, may not be the basis of any claim for an equitable lien or for equitable subordination of the mortgage lien, and may not be asserted as an offset or a defense in the foreclosure case.

    (d) For purposes of serving notice on the contractor under this subsection, the lender may rely on the name and address of the contractor listed in the notice of commencement or, if no notice of commencement is recorded, on the name and address of the contractor listed in the uniform building permit application. For purposes of serving notice on any other lienor under this subsection, the lender may rely upon the name and address of the lienor listed in the notice to owner.

    (e) The contractor or any other lienor may not waive the right to receive notice under this paragraph.

    (3)(a) If the lender and the borrower have designated a portion of the construction loan proceeds, the borrower may not authorize the lender to disburse the funds so designated for any other purpose until the owner serves the contractor and any other lienor who has given the owner a notice to owner with written notice of that decision, including the amount of such loan proceeds to be disbursed. For the purposes of this subsection, the term “designated construction loan proceeds” means that portion of the loan allocated to actual construction costs of the facility and shall not include allocated loan proceeds for tenant improvements where the contractor has no contractual obligation or work order to proceed with such improvements. The lender shall not be liable to the contractor based upon the reallocation of the loan proceeds or the disbursement of the loan proceeds if the notice is timely given in accordance with this subsection and the decision is otherwise permitted under the loan documents.

    (b) If the lender is permitted under the loan documents to make disbursements from the loan contrary to the original loan budget without the borrower’s prior consent, the lender is responsible for serving the notice to the contractor or other lienor required under this subsection.

    (c) This subsection does not apply to a residential project of four units or less.

    (d) This subsection does not apply to construction loans of less than $1 million unless the lender has committed to make more than one loan, the total of which loans are greater than $1 million, for the purpose of evading this subsection.

    (e) The owner or the lender is not required to give notice to the contractor or any other lienor under this subsection unless the total amount of all disbursements described in paragraph (a) exceed 5 percent of the original amount of the designated construction loan proceeds or $100,000, whichever is less.

    (f) Disbursement of loan proceeds contrary to this subsection renders the lender liable to the contractor to the extent of any such disbursements or to the extent of the actual value of the materials and direct labor costs plus 15 percent for overhead, profit, and all other costs, whichever is less. The lender is not liable to the contractor for consequential or punitive damages for disbursing loan proceeds in violation of this subsection. The contractor shall have a separate cause of action against the lender for damages sustained as the result of the disbursement of loan proceeds in violation of this subsection. Such separate cause of action may not be used to hinder or delay any foreclosure action filed by the lender, may not be the basis of any claim for equitable subordination of the mortgage lien, and may not be asserted as an offset or a defense in the foreclosure case.

    (g) For purposes of serving notice on the contractor under this subsection, the lender may rely upon the name and address of the contractor listed in the notice of commencement or, if no notice of commencement is recorded, the name and address of the contractor listed in the uniform building permit application. For purposes of serving notice on any other lienor under this subsection, the lender may rely upon the name and address of the lienor listed in the notice to owner.

    (h) For purposes of this subsection, the lender may rely upon a written statement, signed under oath by the contractor or any other lienor, that confirms that the contractor or the lienor has received the written notice required by this subsection.

    (i) A contractor and any other lienor may not waive his or her right to receive notice under this subsection.

    History.—s. 8, ch. 92-286; s. 820, ch. 97-102; s. 8, ch. 2003-177; s. 13, ch. 2005-227.

    713.35 Making or furnishing false statement.—Any person, firm, or corporation who knowingly and intentionally makes or furnishes to another person, firm, or corporation an affidavit, a waiver or release of lien, or other document, whether or not under oath, containing false information about the payment status of subcontractors, sub-subcontractors, or suppliers in connection with the improvement of real property in this state, knowing that the one to whom it was furnished might rely on it, and the one to whom it was furnished will part with draw payments or final payment relying on the truth of such statement as an inducement to do so commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083. A state attorney or the statewide prosecutor, upon the filing of an indictment or information against a contractor, subcontractor, or sub-subcontractor which charges such person with a violation of this section, shall forward a copy of the indictment or information to the Department of Business and Professional Regulation. The Department of Business and Professional Regulation shall promptly open an investigation into the matter and, if probable cause is found, shall furnish a copy of any investigative report to the state attorney or statewide prosecutor who furnished a copy of the indictment or information and to the owner of the property which is the subject of the investigation.

    History.—s. 1, ch. 63-135; s. 35, ch. 67-254; s. 9, ch. 95-240; s. 9, ch. 2003-177; s. 4, ch. 2006-187.

    Note.—Former s. 84.351.

    713.37 Rule of construction.—This part shall not be subject to a rule of liberal construction in favor of any person to whom it applies.

    History.—s. 15, ch. 77-353.

  • Georgia, (post date:2013-04-23 22:59:04)

    Georgia Lien Law

    Notice Req.
    Intent to Lien
    Lien Req.
    Prime Contractor

    Not Required

    Intent to Lien is not required in the state of Georgia to secure lien rights

    Lien must be recorded 90 days of last furnishing of services. Enforcement of lawsuit is due within 365 days after filing.

    Sub Contractor

    Not Required, unless a notice of commencement was filed. Then a Notice to Contractor must be sent to the owner and the contractor within 30 days from first services to the project.

    Intent to Lien is not Required in the state of Georgia to secure lien rights

    Lien must be recorded 90 days of last furnishing of services. Enforcement of lawsuit is due within 365 days after filing.

    Suppliers/Other

    Not Required, unless a notice of commencement was filed. Then a Notice to Contractor must be sent to the owner and the contractor within 30 days from first services to the project.

    Intent to Lien is not Required in the state of Georgia to secure lien rights

    Lien must be recorded 90 days of last furnishing of services. Enforcement of lawsuit is due within 365 days after filing.

    PRIVATE PROJECTS:

    Georgia

     Notice to Contractor and Mechanics Lien

     

     1. If I don’t have a direct contract with the owner of the property am I required to send a Notice to Contractor (Preliminary notice) in Georgia in order to secure my lien rights?

    Yes!  You are required to send a Notice to Contractor in Georgia.  In Georgia you only have 30 days from the first day you furnished materials and or labor to send a Notice to Contractor.

    SECURE YOUR LIEN RIGHTS by sending a Notice to Contractor Now!

    2. What if I have not been paid after sending a Notice to Contractor

    You have only 90 days from the LAST day you have furnished materials and or labor to the property to Lien the property

    SECURE YOUR LIEN RIGHTS by filing a Mechanics Lien Now!

    3. What is considered the last day on the job? 

    • Georgia law states that, from the time of the contractor’s last day of performed work, they can begin the filing a Claim of Lien.  With regards to the last day materials were delivered onto the job site itself.  A contractor cannot return to the site to acknowledge completion, nor perform any additional work.
    • Once your final furnishing of work is completed, no added time can be used to extend the time for filing a Claim of Lien.  Contractors should be aware of the completion progress on the jobsite, before the, “final furnishing” date. This way you can make any changes before the final day, any changes cannot be claimed for unless approved.

    SECURE YOUR LIEN RIGHTS by filing a Mechanics Lien Now!

     

    4. Who all are not protected by the lien law of Georgia?

     Any unlicensed parties performing services, or labor are not protected.  Suppliers who are not furnishing rental tools, appliances, machinery, or equipment, are not protected. Material man who are not contracted to the job are also not protected.

    If you are unlicensed and not contracted you are not protected by the lien law.

    GET PAID NOW by signing up with SunRay Construction Solutions!

     

    5. What costs or damages made are not generally allowed in a lien claim?

    Attorney fees are not included in the lien of claim.  However, prejudgment interest and attorney fees, may be recoverable in addition to the lien claimant amount, under certain circumstances.

    GET PAID NOW by signing up with SunRay Construction Solutions!

     

    6. What is the deadline to start a lien foreclosure?

    Within the 365 day mark.  The lien claimant must file action against the primary defaulter on the debt owed.  If the lien claimant did not furnish labor or materials directly to the property owner, as long as action again the primary debtor for the debt is filed within 365 day mark, a lien foreclosure may be filed against the owner,  more than 365 days from the time the lien was filed.

    The time period of 365 does not include, holidays or weekends.  All dates are counted using a business calendar.

    GET PAID NOW by signing up with SunRay Construction Solutions!

     

     7. Do I need to include a lien of expiration statement?

    You must include in bold and at least 12 point font the following statement: “This claim of lien expires and is void 395 days from the date of filing of the claim of lien if no notice of commencement of lien action is filled in that time period.”  Without this statement, your lien will be invalid and stop it from being filed.

    GET PAID NOW by signing up with SunRay Construction Solutions!

     

    8. Can I file a lien on a condominium project?

    A lien may be filed against an individual condominium as long as the claimant has valid lien rights.

    GET PAID NOW by signing up with SunRay Construction Solutions!

     

    9. Who satisfies the lien when I get paid?

    The lienor may be obligated to initiate a release of lien when paid.

    GET PAID NOW by signing up with SunRay Construction Solutions!

     

    STATE PROJECTS:

    need to enter

    MILLER ACT STATUTE:

    The Georgia “Little Miller Act

    Georgia Code, Title 13, Contracts, Chapter 10, Contracts for Public Works, Sections 13-10-1 – 13-10-2 and 13-10-40 through 13-10-65

    Title 36, Local Government Provisions Appliable to Counties, Municipal Corporations, and Other Governmental Entities, Chapter 91, Public Works Bidding Sections 36-91-1 – 36-91-2, 36-91-40 and 36-91-70 through 36-91-95 __________________________________________________________________________________

    © 2008 by the State of Georgia. All rights reserved.

    ARTICLE 1. GENERAL PROVISIONS

    PART 1. BONDS

          § 13-10-1. “State” defined

          As used in this article, the term “state” means the state of Georgia, any agency of the state, and any state authority.

          § 13-10-2. Approval of bond; strengthening of bond

          (a)(1) Any bid bond, performance bond, payment bond, or security deposit required for a state public works construction contract shall be approved and filed with the treasurer or the person performing the duties usually performed by a treasurer of the obligee named in such bond. At the option of the state, if the surety named in the bond is other than a surety company authorized by law to do business in this state pursuant to a current certificate of authority to transact surety business by the Commissioner of Insurance, such bond shall not be approved and filed unless such surety is on the United States Department of Treasury’s list of approved bond sureties.

                (2) Any bid bond, performance bond, or payment bond required by this chapter shall be approved as to form and as to the solvency of the surety by an officer of the state or the agency or authority of the state negotiating the contract on behalf of the state. In the case of a bid bond, such approval shall be obtained prior to acceptance of the bid or proposal. In the case of a payment bond or a performance bond, such approval shall be obtained prior to the execution of the contract.

          (b) Whenever, in the judgment of the obligee:

                (1) Any surety on a bid, performance, or payment bond has become insolvent;

                (2) Any corporate surety is no longer certified or approved by the Commissioner of Insurance to do business in the state; or

                (3) For any cause there are no longer proper or sufficient sureties on any or all of the bonds,

    the obligee may require the contractor to strengthen any or all of the bonds or to furnish a new or additional bond or bonds within ten days. Thereupon, if so ordered by the obligee, all work on the contract shall cease unless such new or additional bond or bonds are furnished. If such bond or bonds are not furnished within such time, the obligee may terminate the contract and complete the same as the agent of and at the expense of the contractor and his or her sureties.

    PART 2. BID BONDS [§§ 13-10-20 through 13-10-24]

    *          *          *          *          *          *

    PART 3. PERFORMANCE BONDS

          § 13-10-40. Large public works contracts; requirement for performance bond

          Except as otherwise provided in Title 32, performance bonds shall be required for all state public works construction contracts with an estimated contract amount greater than $100,000.00; provided, however, that the state may require a performance bond for public works construction contracts that are estimated at $100,000.00 or less. No public works construction contract requiring a performance bond shall be valid for any purpose unless the contractor gives such performance bond. The performance bond shall be in the amount of at least the total amount payable by the terms of the contract and shall be increased as the contract amount is increased.

          § 13-10-41. Alternatives to performance bond

          When the amount of the performance bond required under this article does not exceed $300,000.00, the state may, in its sole discretion, accept an irrevocable letter of credit by a bank or savings and loan association, as defined in Code Section 7-1-4, in the amount of and in lieu of the bond otherwise required under this article.

          § 13-10-42. Maintenance of action on performance bond by obligee

          The obligee in any performance bond required to be given in accordance with this article shall be entitled to maintain an action thereon at any time upon any breach of such bond; provided, however, no action can be instituted on the bonds or security deposits after one year from the completion of the contract and the acceptance of the public work by the state.

    PART 4. PAYMENT BONDS

          § 13-10-60. Large public works contracts; requirement for payment bonds

          Except as otherwise provided in Title 32, payment bonds shall be required for all state public works construction contracts with an estimated contract amount greater than $100,000.00; provided, however, that the state may require a payment bond for public works construction contracts that are estimated at $100,000.00 or less. No public works construction contract requiring a payment bond shall be valid for any purpose unless the contractor gives such payment bond; provided, however, that in lieu of such payment bond, the state, in its discretion, may accept a cashier’s check, certified check, or cash for the use and protection of all subcontractors and all persons supplying labor, materials, machinery, and equipment in the prosecution of work provided in the contract. The payment bond or other security accepted in lieu of a payment bond shall be in the amount of at least the total amount payable by the terms of the initial contract and shall be increased if requested by the state as the contract amount is increased.

          § 13-10-61. Liability of contracting entity for failure to comply with article

          If a payment bond or security deposit is not taken in the manner and form required in this article, the corporation or body for which work is done under the contract shall be liable to all subcontractors and to all persons supplying labor, materials, machinery, or equipment to the contractor or subcontractor thereunder for any loss resulting to them from such failure. No agreement, modification, or change in the contract, change in the work covered by the contract, or extension of time for the completion of the contract shall release the sureties of such payment bond.

          § 13-10-62. Notice of commencement

          (a) The contractor furnishing the payment bond or security deposit shall post on the public works construction site and file with the clerk of the superior court in the county in which the site is located a notice of commencement no later than 15 days after the contractor physically commences work on the project and supply a copy of the notice of commencement to any subcontractor, materialman, or person who makes a written request of the contractor. Failure to supply a copy of the notice of commencement within ten calendar days of receipt of the written request from such subcontractor, materialman, or person shall render the provisions of paragraph (1) of subsection (a) of Code Section 13-10-63 inapplicable to such subcontractor, materialman, or person making the request. The notice of commencement shall include:

                (1) The name, address, and telephone number of the contractor;

                (2) The name and location of the public work being constructed or a general description of the improvement;

                (3) The name and address of the state or the agency or authority of the state that is contracting for the public works construction;

                (4) The name and address of the surety for the performance and payment bonds, if any; and

                (5) The name and address of the holder of the security deposit provided, if any.

          (b) The failure to file a notice of commencement shall render the notice to the contractor requirements of paragraph (1) of subsection (a) of Code Section 13-10-63 inapplicable.

          (c) The clerk of the superior court shall file the notice of commencement within the records of that office and maintain an index separate from other real estate records or an index with the preliminary notices specified in subsection (a) of Code Section 44-14-361.3. Each such notice of commencement shall be indexed under the name of the state and the name of the contractor as contained in the notice of commencement.

          § 13-10-63. Pursuit of action by person entitled to protection of payment bond; liability of public entity

          (a) Every person entitled to the protection of the payment bond or security deposit required to be given who has not been paid in full for labor or materials furnished in the prosecution of the work referred to in such bond or security deposit before the expiration of a period of 90 days after the day on which the last of the labor was done or performed by such person or the material or equipment or machinery was furnished or supplied by such person for which such claim is made, or when he or she has completed his or her subcontract for which claim is made, shall have the right to bring an action on such payment bond or security deposit for the amount, or the balance thereof, unpaid at the time of the commencement of such action and to prosecute such action to final execution and judgment for the sum or sums due such person; provided, however, that:

                (1) Any person having a direct contractual relationship with a subcontractor but no contractual relationship, express or implied, with the contractor furnishing such payment bond or security deposit on a public works construction project where the contractor has not complied with the notice of commencement requirements shall have the right of action upon the payment bond or security deposit upon giving written notice to the contractor within 90 days from the day on which such person did or performed the last of the labor or furnished the last of the material or machinery or equipment for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was performed or done. The notice to the contractor may be served by registered or certified mail or statutory overnight delivery, postage prepaid, duly addressed to the contractor, at any place at which the contractor maintains an office or conducts his or her business or at his or her residence, by depositing such notice in any post office or branch post office or any letter box under the control of the United States Postal Service; alternatively, notice may be served in any manner in which the sheriffs of this state are authorized by law to serve summons or process; and

                (2) Any person having a direct contractual relationship with a subcontractor but no contractual relationship, express or implied, with the contractor furnishing such payment bond or security deposit on a public works construction project where the contractor has complied with the notice of commencement requirements in accordance with subsection (a) of Code Section 13-10-62 shall have the right of action on the payment bond or security deposit, provided that such person shall, within 30 days from the filing of the notice of commencement or 30 days following the first delivery of labor, material, machinery, or equipment, whichever is later, give to the contractor a written notice setting forth:

                      (A) The name, address, and telephone number of the person providing labor, material, machinery, or equipment;

                      (B) The name and address of each person at whose instance the labor, material, machinery, or equipment is being furnished;

                      (C) The name and the location of the public works construction site; and

                      (D) A description of the labor, material, machinery, or equipment being provided and, if known, the contract price or anticipated value of the labor, material, machinery, or equipment to be provided or the amount claimed to be due, if any.

          (b) Nothing contained in this Code section shall limit the right of action of a person entitled to the protection of the payment bond or security deposit required to be given pursuant to this article to the 90 day period following the day on which such person did or performed the last of the labor or furnished the last of the material or machinery or equipment for which such claim is made.

          (c) Every action instituted under this Code section shall be brought in the name of the claimant without making the state or the agency or authority of the state for which the work was done or was to be done a party to such action.

          § 13-10-64. Supplying copy of bond or security deposit agreement and contract; fees for certified copies

          The official who has the custody of the bond or security deposit required by this article is authorized and directed to furnish to any person making application therefor a copy of the bond or security deposit agreement and the contract for which it was given, certified by the official who has custody of the bond or security deposit. With his or her application, such person shall also submit an affidavit that he or she has supplied labor or materials for such work and that payment therefor has not been made or that he or she is being sued on any such bond or security deposit. Such copy shall be primary evidence of the bond or security deposit and contract and shall be admitted in evidence without further proof. Applicants shall pay for such certified copies and such certified statements such fees as the official fixes to cover the cost of preparation thereof, provided that in no case shall the fee fixed exceed the fees which the clerks of the superior courts are permitted to charge for similar copies.

          § 13-10-65. Time for instituting action

          No action can be instituted on the payment bonds or security deposits after one year from the completion of the contract and the acceptance of the public works construction by the proper public authorities. Every action instituted under this article shall be brought in the name of the claimant, without the state or the agency or authority of the state for which the work was done or was to be done being made a party thereto.

     

    Georgia Code, Title 36, Local Government Provisions Appliable to Counties, Municipal Corporations, and Other Governmental Entities, Chapter 91, Public Works Bidding

     

    ARTICLE 1. GENERAL PROVISIONS

          § 36-91-1. Short titles

          This chapter shall be known and may be cited as the “Georgia Local Government Public Works Construction Law.”

          § 36-91-2. Definitions

          As used in this chapter, the term:

    *          *          *          *          *          *

                (3) “Bid bond” means a bond with good and sufficient surety or sureties for the faithful acceptance of the contract payable to, in favor of, and for the protection of the governmental entity for which the contract is to be awarded.

    *          *          *          *          *          *

                (10) “Payment bond” means a bond with good and sufficient surety or sureties payable to the governmental entity for which the work is to be done and intended for the use and protection of all subcontractors and all persons supplying labor, materials, machinery, and equipment in the prosecution of the work provided for in the public works construction contract.

                (11) “Performance bond” means a bond with good and sufficient surety or sureties for the faithful performance of the contract and to indemnify the governmental entity for any damages occasioned by a failure to perform the same within the prescribed time. Such bond shall be payable to, in favor of, and for the protection of the governmental entity for which the work is to be done.

                (12) “Public works construction” means the building, altering, repairing, improving, or demolishing of any public structure or building or other public improvements of any kind to any public real property other than those projects covered by Chapter 4 of Title 32. Such term does not include the routine operation, repair, or maintenance of existing structures, buildings, or real property.

    *          *          *          *          *          *

    ARTICLE 2. CONTRACTING AND BIDDING REQUIREMENTS [§§ 36-91-20 through 36-91-22]

    *          *          *          *          *          *

    ARTICLE 3. BONDS

    PART 1. GENERAL PROVISIONS

          § 36-91-40. Approval and filing of bonds with treasurer

          (a)  (1) Any bid bond, performance bond, payment bond, or security deposit required for a public works construction contract shall be approved and filed with the treasurer or the person performing the duties usually performed by a treasurer of the obligee named therein. At the option of the governmental entity, if the surety named in the bond is other than a surety company authorized by law to do business in this state pursuant to a current certificate of authority to transact surety business by the Commissioner of Insurance, such bond shall not be approved and filed unless such surety is on the United States Department of Treasury’s list of approved bond sureties.

                (2) Any bid bond, performance bond, or payment bond required by this Code section shall be approved as to form and as to the solvency of the surety by an officer of the governmental entity negotiating the contract on behalf of the governmental entity. In the case of a bid bond, such approval shall be obtained prior to acceptance of the bid or proposal. In the case of payment bonds and performance bonds, such approval shall be obtained prior to the execution of the contract.

          (b) Whenever, in the judgment of the obligee:

                (1) Any surety on a bid, performance, or payment bond has become insolvent;

                (2) Any corporate surety is no longer certified or approved by the Commissioner of Insurance to do business in the state; or

                (3) For any cause there are no longer proper or sufficient sureties on any or all of the bonds,

    the obligee may require the contractor to strengthen any or all of the bonds or to furnish a new or additional bond or bonds within ten days. Thereupon, if so ordered by the obligee, all work on the contract shall cease unless such new or additional bond or bonds are furnished. If such bond or bonds are not furnished within such time, the obligee may terminate the contract and complete the same as the agent of and at the expense of the contractor and his or her sureties.

    *          *          *          *          *          *

    [PART 2. CONTRACTING, BIDDING REQUIREMENTS AND BID BONDS [§§ 36-91-50 through 36-91-54)]

    *          *          *          *          *          *

    PART 3. PERFORMANCE BONDS

          § 36-91-70. Requirement of performance bonds

          Performance bonds shall be required for all public works construction contracts subject to the requirements of this chapter with an estimated contract amount greater than $100,000.00; provided, however, that a governmental entity may require a performance bond for public works construction contracts that are estimated at $100,000.00 or less. No public works construction contract requiring a performance bond shall be valid for any purpose unless the contractor shall give such performance bond. The performance bond shall be in the amount of at least the total amount payable by the terms of the contract and shall be increased as the contract amount is increased.

          § 36-91-71. Acceptable substitutes for bond

          When the amount of the performance bond required under this article does not exceed $750,000.00, the governmental entity may, in its sole discretion, accept an irrevocable letter of credit by a bank or savings and loan association, as defined in Code Section 7-1-4, in the amount of and in lieu of the bond otherwise required under this article.

          § 36-91-72. Action on performance bond

          The obligee in any performance bond required to be given in accordance with this article shall be entitled to maintain an action thereon at any time upon any breach of such bond; provided, however, no action can be instituted on the bonds or security deposits after one year from the completion of the contract and the acceptance of the public work by the governmental entity.

          §§ 36-91-73 through 36-91-75. [Repealed]

    ARTICLE 3. BONDS

    PART 4. PAYMENT BONDS

          § 36-91-90. Requirement for payment bonds

          Payment bonds shall be required for all public works construction contracts subject to the requirements of this chapter with an estimated contract amount greater than $100,000.00; provided, however, that a governmental entity may require a payment bond for public works construction contracts that are estimated at $100,000.00 or less. No public works construction contract requiring a payment bond shall be valid for any purpose, unless the contractor shall give such payment bond; provided, however, that, in lieu of such payment bond, the governmental entity, in its discretion, may accept a cashier’s check, certified check, or cash for the use and protection of all subcontractors and all persons supplying labor, materials, machinery, and equipment in the prosecution of work provided in the contract. The payment bond or other security accepted in lieu of a payment bond shall be in the amount of at least the total amount payable by the terms of the initial contract and shall be increased if requested by the governmental entity as the contract amount is increased.

          § 36-91-91. Liability of contracting party to subcontractors for noncompliance

          If a payment bond or security deposit is not taken in the manner and form required in this article, the corporation or body for which work is done under the contract shall be liable to all subcontractors and to all persons furnishing labor, skill, tools, machinery, or materials to the contractor or subcontractor thereunder for any loss resulting to them from such failure. No agreement, modification, or change in the contract, change in the work covered by the contract, or extension of time for the completion of the contract shall release the sureties of such payment bond.

          § 36-91-92. Notice of commencement

          (a) The contractor furnishing the payment bond or security deposit shall post on the public works construction site and file with the clerk of the superior court in the county in which the site is located a notice of commencement no later than 15 days after the contractor physically commences work on the project and supply a copy of the notice of commencement to any subcontractor, materialman, or person who makes a written request of the contractor. Failure to supply a copy of the notice of commencement within ten calendar days of receipt of the written request from the subcontractor, materialman, or person shall render the provisions of paragraph (1) of subsection (a) of Code Section 36-91-93 inapplicable to the subcontractor, materialman, or person making the request. The notice of commencement shall include:

                (1) The name, address, and telephone number of the contractor;

                (2) The name and location of the public work being constructed or a general description of the improvement;

                (3) The name and address of the governmental entity that is contracting for the public works construction;

                (4) The name and address of the surety for the performance and payment bonds, if any; and

                (5) The name and address of the holder of the security deposit provided, if any.

          (b) The failure to file a notice of commencement shall render the notice to contractor requirements of paragraph (1) of subsection (a) of Code Section 36-91-93 inapplicable.

          (c) The clerk of the superior court shall file the notice of commencement within the records of that office and maintain an index separate from other real estate records or an index with the preliminary notices specified in subsection (a) of Code Section 44-14-361.3. Each such notice of commencement shall be indexed under the name of the governmental entity and the name of the contractor as contained in the notice of commencement.

          § 36-91-93. Rights of persons protected by payment bond or security deposit; governmental entity not a party

          (a) Every person entitled to the protection of the payment bond or security deposit required to be given who has not been paid in full for labor or material furnished in the prosecution of the work referred to in such bond or security deposit before the expiration of a period of 90 days after the day on which the last of the labor was done or performed by such person or the material or equipment or machinery was furnished or supplied by such person for which such claim is made, or when he or she has completed his or her subcontract for which claim is made, shall have the right to bring an action on such payment bond or security deposit for the amount, or the balance thereof, unpaid at the time of the commencement of such action and to prosecute such action to final execution and judgment for the sum or sums due such person; provided, however, that:

                (1) Any person having a direct contractual relationship with a subcontractor but no contractual relationship, express or implied, with the contractor furnishing such payment bond or security deposit on a public works construction project where the contractor has not complied with the notice of commencement requirements shall have the right of action upon the payment bond or security deposit upon giving written notice to the contractor within 90 days from the day on which such person did or performed the last of the labor or furnished the last of the material or machinery or equipment for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was performed or done. The notice to the contractor may be served by registered or certified mail, postage prepaid, or statutory overnight delivery, duly addressed to the contractor, at any place at which the contractor maintains an office or conducts his or her business or at his or her residence, by depositing such notice in any post office or branch post office or any letter box under the control of the United States Postal Service; alternatively, notice may be served in any manner in which the sheriffs of this state are authorized by law to serve summons or process; and

                (2) Any person having a direct contractual relationship with a subcontractor but no contractual relationship, express or implied, with the contractor furnishing such payment bond or security deposit on a public works construction project where the contractor has complied with the notice of commencement requirements in accordance with subsection (a) of Code Section 36-91-92 shall have the right of action on the payment bond or security deposit, provided that such person shall, within 30 days from the filing of the notice of commencement or 30 days following the first delivery of labor, material, machinery, or equipment, whichever is later, give to the contractor a written notice setting forth:

                      (A) The name, address, and telephone number of the person providing labor, material, machinery, or equipment;

                      (B) The name and address of each person at whose instance the labor, material, machinery, or equipment is being furnished;

                      (C) The name and the location of the public works construction site; and

                      (D) A description of the labor, material, machinery, or equipment being provided and, if known, the contract price or anticipated value of the labor, material, machinery, or equipment to be provided or the amount claimed to be due, if any.

          (b) Nothing contained in this Code section shall limit the right of action of a person entitled to the protection of the payment bond or security deposit required to be given pursuant to this article to the 90 day period following the day on which such person did or performed the last of the labor or furnished the last of the material or machinery or equipment for which such claim is made.

          (c) Every action instituted under this Code section shall be brought in the name of the claimant without making the governmental entity for which the work was done or was to be done a party to such action.

          § 36-91-94. Providing copy of bond or security deposit agreement

          The official who has the custody of the bond or security deposit required by this article is authorized and directed to furnish to any person making application therefor a copy of the bond or security deposit agreement and the contract for which it was given, certified by the official who has custody of the bond or security deposit. With his or her application, such person shall also submit an affidavit that he or she has supplied labor or materials for such work and that payment therefor has not been made or that he or she is being sued on any such bond or security deposit. Such copy shall be primary evidence of the bond or security deposit and contract and shall be admitted in evidence without further proof. Applicants shall pay for such certified copies and such certified statements such fees as the official fixes to cover the cost of preparation thereof, provided that in no case shall the fee fixed exceed the fees which the clerks of the superior courts are permitted to charge for similar copies.

          § 36-91-95. Time limitation

          No action can be instituted on the payment bonds or security deposits after one year from the completion of the contract and the acceptance of the public works construction by the proper public authorities. Every action instituted under this article shall be brought in the name of the claimant, without the governmental entity for which the work was done or was to be done being made a party thereto.

    LIEN STATUTE:

    Georgia Lien Law

    • § 44-14-360. Definitions.
    • § 44-14-361. Creation of Liens; Labor, Services or Materials Furnished
    • § 44-14-361.1. Notice to Contractor; Notice of Commencement
    • § 44-14-361.2. Dissolving of Liens
    • § 44-14-361.3. Preliminary Notice of Lien Rights
    • § 44-14-361.4. Dissolving of Preliminary Notice of Lien Rights; Demand for Filing of Claim of Lien
    • § 44-14-361.5. Notice to Contractor; Notice of Commencement
    • § 44-14-362. Cancellation of Preliminary Notice of Lien Rights
    • § 44-14-363. Special Liens on Personalty; Enforcement; Priorities; Claims for Storage; Recordation
    • § 44-14-364. Discharge of Lien by Filing Bond
    • § 44-14-365. Rights of Partnerships and Corporations Employing Registered Architects, Foresters, Land Surveyors, or Professional Engineers as to Liens
    • § 44-14-366. Waiver and Release of Lien and Bond Rights
    • § 44-14-367. Failure to Commence Lien Action; Expiration of Lien
    • § 44-14-368. Notice of Contest of Lien; Lien Extinguished 90 Days After Filing Notice of Contest if No Notice of Commencement of Lien Action Filed
    • § 44-14-369. Computation of Time

    § 44-14-360. Definitions.

    As used in this part, the term:
    (.1) “Business day” means any day that is not a Saturday, Sunday, or legal holiday.
    (1) “Contractor” means a contractor having privity of contract with the owner of the real estate.
    (2) “Land surveyor” means the same as the definition thereof in Code Section 43-15-2.
    (2.1) “Lien action” means a lawsuit, proof of claim in a bankruptcy case, or a binding arbitration.
    (3) “Materials,” in addition to including those items for which liens are already permitted under this part, means tools, appliances, machinery, or equipment used in making improvements to the real estate, to the extent of the reasonable value or the contracted rental price, whichever is greater, of such tools, appliances, machinery, or equipment.
    (4) “Materialmen” means all persons furnishing the materials, tools, appliances, machinery, or equipment included in the definition of materials in paragraph (3) of this Code section.
    (5) “Professional engineer” means the same as the definition thereof in Code Section 43-15-2.
    (6) “Registered forester” means the same as the definition of such term in Code Section 12-6-41.
    (7) “Registered land surveyors” and “registered professional engineers” means land surveyors or professional engineers who are registered as land surveyors or professional engineers under Chapter 15 of Title 43 at the time of performing, rendering, or furnishing services protected under this part.
    (8) “Residential property” means single-family and two-family, three-family, and four-family residential real estate.
    (9) “Subcontractor” means, but is not limited to, subcontractors having privity of contract with the contractor.

     

    § 44-14-361. Creation of Liens; Labor, Services or Materials Furnished

    (a) The following persons shall each have a special lien on the real estate, factories, railroads, or other property for which they furnish labor, services, or materials:
    (1) All mechanics of every sort who have taken no personal security for work done and material furnished in building, repairing, or improving any real estate of their employers;
    (2) All contractors, all subcontractors and all materialmen furnishing material to subcontractors, and all laborers furnishing labor to subcontractors, materialmen, and persons furnishing material for the improvement of real estate;
    (3) All registered architects furnishing plans, drawings, designs, or other architectural services on or with respect to any real estate;
    (4) All registered foresters performing or furnishing services on or with respect to any real estate;
    (5) All registered land surveyors and registered professional engineers performing or furnishing services on or with respect to any real estate;
    (6) All contractors, all subcontractors and materialmen furnishing material to subcontractors, and all laborers furnishing labor for subcontractors for building factories, furnishing material for factories, or furnishing machinery for factories;
    (7) All machinists and manufacturers of machinery, including corporations engaged in such business, who may furnish or put up any mill or other machinery in any county or who may repair the same;
    (8) All contractors to build railroads; and
    (9) All suppliers furnishing rental tools, appliances, machinery, or equipment for the improvement of real estate.
    (b) Each special lien specified in subsection (a) of this Code section may attach to the real estate of the owner for which the labor, services, or materials are furnished if they are furnished at the instance of the owner, contractor, or some other person acting for the owner or contractor and shall include the value of work done and materials furnished in any easement or public right of way adjoining said real estate if the work done or materials furnished in the easement or public right of way is for the benefit of said real estate and is within the scope of the owner’s contract for improvements to said real estate.

     

    § 44-14-361.1. Notice to Contractor; Notice of Commencement

    (a) To make good the liens specified in paragraphs (1) through (8) of subsection (a) of Code Section 44-14-361, they must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective or enforceable:
    (1) A substantial compliance by the party claiming the lien with his or her contract for building, repairing, or improving; for architectural services furnished; for registered forester services furnished or performed; for registered land surveying or registered professional engineering services furnished or performed; or for materials or machinery furnished or set up;
    (2) The filing for record of his or her claim of lien within 90 days after the completion of the work, the furnishing of the architectural services, or the furnishing or performing of such surveying or engineering services or within 90 days after the material or machinery is furnished in the office of the clerk of the superior court of the county where the property is located. The lien shall include a statement regarding its expiration pursuant to Code Section 44-14-367 and a notice to the owner of the property on which a claim of lien is filed that such owner has the right to contest the lien; the absence of such statement or notice shall invalidate the lien. The claim shall be in substance as follows: “A.B., a mechanic, contractor, subcontractor, materialman, machinist, manufacturer, registered architect, registered forester, registered land surveyor, registered professional engineer, or other person (as the case may be) claims a lien in the amount of (specify the amount claimed) on the house, factory, mill, machinery, or railroad (as the case may be) and the premises or real estate on which it is erected or built, of C.D. (describing the houses, premises, real estate, or railroad), for satisfaction of a claim which became due on (specify the date the claim was due, which is the same as the last date the labor, services, or materials were supplied to the premises) for building, repairing, improving, or furnishing material (or whatever the claim may be).” No later than two business days after the date the claim of lien is filed of record, the lien claimant shall send a true and accurate copy of the claim of lien by registered or certified mail or statutory overnight delivery to the owner of the property or, if the owner’s address cannot be found, the contractor, as the agent of the owner; provided, however, if the property owner is an entity on file with the Secretary of State’s Corporations Division, sending a copy of the claim of lien to the entity’s address or the registered agent’s address shall satisfy this requirement. In all cases in which a notice of commencement is filed with the clerk of the superior court pursuant to subsection (b) of Code Section 44-14-361.5, a lien claimant shall also send a copy of the claim of lien by registered or certified mail or statutory overnight delivery to the contractor at the address shown on the notice of commencement;
    (3) The commencement of a lien action for the recovery of the amount of the party’s claim within 365 days from the date of filing for record of his or her claim of lien. In addition, within 30 days after commencing such lien action, the party claiming the lien shall file a notice with the clerk of the superior court of the county wherein the subject lien was filed. The notice shall contain a caption referring to the then owner of the property against which the lien was filed and referring to a deed or other recorded instrument in the chain of title of the affected property. The notice shall be executed, under oath, by the party claiming the lien or by such party’s attorney of record, but failure to execute the notice under oath shall be an amendable defect which may be cured by the party claiming the lien or by such party’s attorney without leave of court at any time before entry of the pretrial order and thereafter by leave of court. An amendment of notice pursuant to this Code section shall relate back to the date of filing of the notice. The notice shall identify the court or arbitration venue wherein the lien action is brought; the style and number, if any, of the lien action, including the names of all parties thereto; the date of the filing of the lien action; and the book and page number of the records of the county wherein the subject lien is recorded in the same manner in which liens specified in Code Section 44-14-361 are filed. The clerk of the superior court shall enter on the subject lien so referred to the book and page on which the notice is recorded and shall index such notice in the name of the then purported owner as shown by the caption contained in such notice. A separate lis pendens notice need not be filed with the commencement of this action; and
    (4) In the event any contractor or subcontractor procuring material, architect’s services, registered forester’s services, registered land surveyor’s services, or registered professional engineer’s services, labor, or supplies for the building, repairing, or improving of any real estate, building, or other structure shall abscond or die or leave the state during the required time period for filing a lien action, so that personal jurisdiction cannot be obtained on the contractor or subcontractor in a lien action for the services, material, labor, or supplies, or if the contractor or subcontractor shall be adjudicated a bankrupt, or if, after the filing of a lien action, no final judgment can be obtained against him or her for the value of such material, services, labor, or supplies because of his or her death, adjudication in bankruptcy, or the contract between the party claiming the lien and the contractor or subcontractor includes a provision preventing payment to the claimant until after the contractor or the subcontractor has received payment, then and in any of these events, the person or persons furnishing material, services, labor, and supplies shall be relieved of the necessity of filing a lien action or obtaining judgment against the contractor or subcontractor as a prerequisite to enforcing a lien against the property improved by the contractor or subcontractor. Subject to Code Section 44-14-361, the person or persons furnishing material, services, labor, and supplies may enforce the lien directly against the property so improved in a lien action against the owner thereof, if filed within the required time period for filing a lien action, with the judgment rendered in any such proceeding to be limited to a judgment in rem against the property improved and to impose no personal liability upon the owner of the property; provided, however, that in such lien action for recovery, the owner of the real estate improved, who has paid the agreed price or any part of same, may set up the payment in any lien action brought and prove by competent and relevant evidence that the payments were applied as provided by law, and no judgment shall be rendered against the property improved. Within 30 days after filing such lien action, the party claiming the lien shall file a notice with the clerk of the superior court of the county wherein the subject lien was filed. The notice shall contain a caption referring to the then owner of the property against which the lien was filed and referring to a deed or other recorded instrument in the chain of title of the affected property. The notice shall be executed, under oath, by the party claiming the lien or by his or her attorney of record. The notice shall identify the court or arbitration venue wherein the lien action is brought; the style and number of the lien action, if any, including the names of all parties thereto; the date of the filing of the lien action; and the book and page number of the records of the county wherein the subject lien is recorded in the same manner in which liens specified in Code Section 44-14-361 are filed. The clerk of the superior court shall enter on the subject lien so referred to the book and page on which the notice is recorded and shall index such notice in the name of the then purported owner as shown by the caption contained in such notice. A separate lis pendens notice need not be filed with the commencement of this action.
    (a.1) A claim of lien may be amended at any time to reduce the amount claimed, and such amended claim of lien shall relate back to the date of filing for record of the original claim of lien. An amended claim of lien filed for record pursuant to this subsection shall be in substance as follows: “That certain claim of lien filed by A.B. against property of C.D. on (date) and recorded at book (book#), page (page#) in the lien index of (name of county) County is hereby amended by reducing the amount of such claim of lien to (specify reduced amount claimed). The remaining terms of such original claim of lien are hereby incorporated by reference into this amended claim of lien. This amended claim of lien relates back to the date that such original claim of lien was filed for record.” and shall be sent to the owner of the property in the same manner as required for a claim of lien in paragraph (2) of subsection (a) of this Code section.
    (b) As between themselves, the liens provided for in Code Section 44-14-361 shall rank according to the date filed; but all of the liens mentioned in this Code section for repairs, building, or furnishing materials or services, upon the same property, shall, as to each other, be of the same date when declared and filed for record within 90 days after the work is done or before that time.
    (c) The liens specified in Code Section 44-14-361 shall be inferior to liens for taxes, to the general and special liens of laborers, to the general lien of landlords of rent when a distress warrant is issued out and levied, to claims for purchase money due persons who have only given bonds for titles, and to other general liens when actual notice of the general lien of landlords and others has been communicated before the work was done or materials or services furnished; but the liens provided for in Code Section 44-14-361 shall be superior to all other liens not excepted by this subsection.
    (d) In any proceeding brought by any materialman, by any mechanic, by any laborer, by any subcontractor, or by any mechanic of any sort employed by any subcontractor or by any materialmen furnishing material to any subcontractor, or by any laborer furnishing labor to any subcontractor, to enforce such a lien, the contractor having a direct contractual relationship with the subcontractor shall not be a necessary party; but he or she may be made a party. In any proceedings brought by any mechanic employed by any subcontractor, by any materialmen furnishing material to any subcontractor, or by any laborer furnishing labor to any subcontractor, the subcontractor shall not be a necessary party; but he or she may be made a party. The contractor or subcontractor or both may intervene in the proceedings at any time before judgment for the purpose of resisting the establishment of the lien or of asserting against the lienor any claim of the contractor or subcontractor growing out of or related to the transaction upon which the asserted lien is based.
    (e) In no event shall the aggregate amount of liens set up by Code Section 44-14-361 exceed the contract price of the improvements made or services performed.
    (f) The filing fees for a claim of materialman’s or mechanic’s lien and any related document created pursuant to this Code section, including but not limited to a notice of commencement of action, shall be the amount set by Code Section 15-6-77 for liens on real estate and personal property.

     

    § 44-14-361.2. Dissolving of Liens

    (a) The special lien specified in subsection (a) of Code Section 44-14-361 shall be dissolved if the owner, purchaser from owner, or lender providing construction or purchase money or any other loan secured by real estate shows that:
    (1) The lien has been waived in writing by lien claimant; or
    (2)(A) They or any of them have obtained the sworn written statement of the contractor or person other than the owner at whose instance the labor, services, or materials were furnished, or the owner when conveying title in a bona fide sale or loan transaction, that the agreed price or reasonable value of the labor, services, or materials has been paid or waived in writing by the lien claimant; and
    (B) When the sworn written statement was obtained or given as a part of a transaction:
    (i) Involving a conveyance of title in a bona fide sale;
    (ii) Involving a loan in which the real estate is to secure repayment of the loan; or
    (iii) Where final disbursement of the contract price is made by the owner to the contractor there was not of record, at the time of the settlement of the transaction a valid preliminary notice or claim of lien which had not been previously canceled, dissolved, or expired.
    (b) As used in paragraph (2) of subsection (a) of this Code section, the term:
    (1) “Person other than the owner” shall not include a subcontractor.
    (2) “Final disbursement” of the contract price means payment of the agreed price between the owner and contractor for the improvements made upon the real estate or the reasonable value of the labor, services, and materials incorporated in the improvements upon the real estate and shall include payment of the balance of the contract price to an escrow agent.

     

    § 44-14-361.3. Preliminary Notice of Lien Rights

    (a) Prior to filing a claim of lien, a person having a lien under paragraphs (1) through (8) of subsection (a) of Code Section 44-14-361 may at such person’s option file a preliminary notice of lien rights. The preliminary notice of lien rights in order to be effective shall:
    (1) Be filed with the clerk of superior court of the county in which the real estate is located within 30 days after the date a party delivered any materials or provided any labor or services for which a lien may be claimed;
    (2) State the name, address, and telephone number of the potential lien claimant;
    (3) State the name and address of the contractor or other person at whose instance the labor, services, or materials were furnished;
    (4) State the name of the owner of the real estate and include a description sufficient to identify the real estate against which the lien is or may be claimed; and
    (5) Include a general description of the labor, services, or materials furnished or to be furnished.
    (b) A party filing a preliminary notice of lien rights except a contractor shall, within seven days of filing the notice, send by registered or certified mail or statutory overnight delivery a copy of the notice to the contractor on the property named in the notice or to the owner of the property. The lien claimant may rely on the building permit issued on the property for the name of the contractor.
    (c) The clerk of each superior court shall maintain within the records of that office a record separate from all other real estate records in which preliminary notices specified in subsection (a) of this Code section and affidavits specified in subsection (c) of Code Section 44-14-361.4 shall be filed. Each such notice and affidavit shall be indexed under the name of the owner as contained in the preliminary notice. The clerk shall collect a filing fee of $ 5.00 for the filing of each preliminary notice.
    (d) A person having a lien under paragraphs (1) through (8) of subsection (a) of Code Section 44-14-361 may enforce the lien without filing a preliminary notice of lien.

    § 44-14-361.4. Dissolving of Preliminary Notice of Lien Rights; Demand for Filing of Claim of Lien

    (a) A preliminary notice of lien rights filed pursuant to Code Section 44-14-361.3 shall be dissolved if it is canceled and a preliminary notice also expires and is dissolved under any of the following conditions:
    (1) The lien has been waived in writing by the lien claimant;
    (2) The time has expired for filing the claim of lien as required in Code Section 44-14-361.1;
    (3) On residential property, a demand for filing of a claim of lien has been sent by registered or certified mail or statutory overnight delivery to the potential lien claimant at the address specified in the preliminary notice of lien rights and at least ten days have elapsed since the date of such mailing without the filing of a claim of lien; or
    (4) On all property except residential property, a demand for filing of a claim of lien has been sent by registered or certified mail or statutory overnight delivery to the potential lien claimant at the address specified in the preliminary notice of lien rights and at least ten days have elapsed since the date of such mailing without the filing of a claim of lien; provided, however, the demand for filing of a claim of lien shall not be sent until the contractor’s contract is substantially complete or until the potential lien claimant’s contract has been terminated or the potential lien claimant has abandoned the contract.
    (b) A demand for filing of claim of lien shall contain the same information required to be contained in the preliminary notice of lien rights and shall contain the following statement addressed to the potential lien claimant: “This demand was mailed to you on _____ pursuant to Code Section 44-14-361.4. You are notified that unless you file a claim of lien with respect to this claim on or before the tenth day after said date of mailing your right to claim a lien will be dissolved.”
    (c) If a demand for filing of a claim of lien is mailed as provided in this Code section and no claim of lien is filed within ten days after said date of mailing, the preliminary notice of lien rights may be canceled as provided in this subsection. In order to obtain cancellation, the person who mailed the demand or his attorney shall file with the clerk of superior court a copy of the demand and his or her affidavit that the demand was mailed as provided in paragraph (3) or (4) of subsection (a) of this Code section and that ten days have elapsed since said date of mailing without the filing of a claim of lien by the potential lien claimant. Upon such filing, the clerk of superior court shall cancel of record the preliminary notice of lien rights.

     

    § 44-14-361.5. Notice to Contractor; Notice of Commencement

    (a) To make good the liens specified in paragraphs (1), (2), and (6) through (9) of subsection (a) of Code Section 44-14-361, any person having a right to a lien who does not have privity of contract with the contractor and is providing labor, services, or materials for the improvement of property shall, within 30 days from the filing of the Notice of Commencement or 30 days following the first delivery of labor, services, or materials to the property, whichever is later, give a written Notice to Contractor as set out in subsection (c) of this Code section to the owner or the agent of the owner and to the contractor for a project on which there has been filed with the clerk of the superior court a Notice of Commencement setting forth therein the information required in subsection (b) of this Code section.
    (b) Not later than 15 days after the contractor physically commences work on the property, a Notice of Commencement shall be filed by the owner, the agent of the owner, or by the contractor with the clerk of the superior court in the county in which the project is located. A copy of the Notice of Commencement shall be posted on the project site. The Notice of Commencement shall include:
    (1) The name, address, and telephone number of the contractor;
    (2) The name and location of the project being constructed and the legal description of the property upon which the improvements are being made;
    (3) The name and address of the true owner of the property;
    (4) The name and address of the person other than the owner at whose instance the improvements are being made, if not the true owner of the property;
    (5) The name and the address of the surety for the performance and payment bonds, if any; and
    (6) The name and address of the construction lender, if any.
    The contractor shall be required to give a copy of the Notice of Commencement to any subcontractor, materialman, or person who makes a written request of the contractor. Failure to give a copy of the Notice of Commencement within ten calendar days of receipt of the written request from the subcontractor, materialman, or person shall render the provision of this Code section inapplicable to the subcontractor, materialman, or person making the request.
    (c) A notice to contractor shall be sent by registered or certified mail or statutory overnight delivery to the owner or the agent of the owner and to the contractor at the addresses set forth in the notice of commencement setting forth:
    (1) The name, address, and telephone number of the person providing labor, services, or materials;
    (2) The name and address of each person at whose instance the labor, services, or materials are being furnished;
    (3) The name of the project and location of the project set forth in the notice of commencement; and
    (4) A description of the labor, services, or materials being provided and, if known, the contract price or anticipated value of the labor, services, or materials to be provided or the amount claimed to be due, if any.
    (d) The failure to file a Notice of Commencement shall render the provisions of this Code section inapplicable. The filing of a Notice of Commencement shall not constitute a cloud, lien, or encumbrance upon or defect to the title of the real property described in the Notice of Commencement, nor shall it alter the aggregate amounts of liens allowable, nor shall it affect the priority of any loan in which the property is to secure payment of the loan filed before or after the Notice of Commencement, nor shall it affect the future advances under any such loan. Nothing contained in this Code section shall affect the provisions of Code Section 44-14-361.2.
    (e) The clerk of each superior court shall file the Notice of Commencement within the records of that office and maintain an index separate from other real estate records or an index with the preliminary notices specified in subsection (a) of Code Section 44-14-361.3. Each such Notice of Commencement shall be indexed under the name of the true owner and the contractor as contained in the Notice of Commencement.

    § 44-14-362. Cancellation of Preliminary Notice of Lien Rights

    (a) Upon final payment after all labor, services, or materials have been furnished, a person who has filed a preliminary notice of lien rights shall either deliver a cancellation of the preliminary notice of lien rights at the time of final payment or cause the notice to be canceled of record within ten days after final payment. Any person who fails to so cancel a preliminary notice shall be liable to the owner for all actual damages, costs, and reasonable attorney’s fees incurred by the owner in having the preliminary notice canceled.
    (b) The cancellation required under this Code section shall be in the following form: Clerk, Superior Court
    of _____ County

    You are authorized and directed to cancel of record the preliminary notice of lien rights which we filed on the property owned by (state name of owner) on (give date) and recorded by you in Book _____, Page _____, of preliminary notices kept by you.

    This _____ day of _____, _____.
    _________________________
    Lien claimant
    or attorney

     

    § 44-14-363. Special Liens on Personalty; Enforcement; Priorities; Claims for Storage; Recordation

    (a) All mechanics of every sort shall have a special lien on personal property for work done and material furnished in manufacturing or repairing the personal property and for storage of the personal property after its manufacture or repair, which storage begins accruing after 30 days’ written notice to the owner of the fact that storage is accruing and of the daily dollar amount thereof; and said notice shall be mailed to the owner by certified mail or statutory overnight delivery addressed to the owner at his last known address. Such special liens may be asserted by the retention of the personal property or the mechanic may surrender the personal property and give credit when the lien is enforced in accordance with Code Section 44-14-550; and if such special liens are asserted by retention of the personal property, the mechanic shall not be required to surrender the property to the holder of a subordinate security interest or lien. Such liens shall be superior to all liens except liens for taxes and, except as provided in subsection (2) of Code Section 11-9-310, such other liens as the mechanic may have had actual notice of before the work was done or material furnished.
    (b) The maximum amount of storage that may be charged shall be $ 1.00 per day. Nothing contained in this Code section shall allow a fee for storage to be charged on any item with a fair market value in excess of $ 200.00. Storage charges pursuant to this Code section shall not apply to motor vehicles now or hereafter covered by Chapter 3 of Title 40 nor shall the storage fee be charged if there is a bona fide dispute between the customer and the mechanic as to the manner of repair or the charges for repair.
    (c)(1) When possession of the property is surrendered to the debtor, the mechanic shall record his or her claim of lien within 90 days after the work is done and the material is furnished or, in the case of repairs made on or to farm machinery, within 180 days after the work is done and the material is furnished. The claim of lien shall be recorded in the office of the clerk of the superior court of the county where the owner of the property resides. The claim shall be in substance as follows: “A.B., mechanic, claims a lien on __________ (here describe the property) of C.B., for work done, material furnished, and storage accruing (as the case may be) in manufacturing, repairing, and storing (as the case may be) the same.”
    (2) If possession of the personal property subject to a special

     

    § 44-14-364. Discharge of Lien by Filing Bond

    (a) When any person entitled under this part to claim a lien against any real estate located in this state files his or her lien in the office of the clerk of the superior court of the county in which the real estate is located, the owner of the real estate or the contractor employed to improve the property may, before or after foreclosure proceedings are instituted, discharge the lien by filing a bond in the office of that clerk. The bond shall be conditioned to pay to the holder of the lien the sum that may be found to be due the holder upon the trial of any lien action that may be filed by the lienholder to recover the amount of his or her claim within 365 days from the time the claim of lien is filed. The bond shall be in double the amount claimed under that lien and shall be either a bond with good security approved by the clerk of the court or a cash bond, except in cases involving a lien against residential property, in which event the bond shall be in the amount claimed under the lien. Upon the filing of the bond provided for in this Code section, the real estate shall be discharged from the lien. Within seven days of filing such bond and any attachments, the party filing the bond shall send a notice of filing such bond and a copy of the bond by registered or certified mail or statutory overnight delivery to the lien claimant at the address stated on the lien or, if no such address is shown for the lien claimant, to the person shown as having filed such lien on behalf of the claimant at the indicated address of such person or, if the bond is filed by a contractor, to the owner of the property, provided that whenever the lien claimant or the owner is an entity on file with the Secretary of State’s Corporations Division, sending the notice of filing such bond and a copy of the bond to the company’s address or the registered agent’s address on file with the Secretary of State shall be deemed sufficient; provided, however, that the failure to send the notice of filing the bond and copy of the bond shall not invalidate the bond for purposes of discharge of a claim of lien under this Code section. With respect to property bonds, the clerk shall not accept any real property bond unless the real property is scheduled in an affidavit attached thereto setting forth a description of the property and indicating the record owner thereof, including any liens and encumbrances and amounts thereof, the market value, and the value of the sureties’ interest therein, which affidavit shall be executed by the owner or owners of the interest; the bond and affidavit shall be recorded in the same manner and at the same cost as other deeds of real property. So long as the bond exists, it shall constitute a lien against the property described in the attached affidavit.
    (b) The clerk of the superior court shall have the right to rely upon the amount specified in the claim of lien in determining the sufficiency of any bond to discharge under this Code section. The failure to specify both the amount claimed due under the lien and the date said claim was due shall result in such lien not constituting notice for any purposes.

     

    § 44-14-365. Rights of Partnerships and Corporations Employing Registered Architects, Foresters, Land Surveyors, or Professional Engineers as to Liens

    If services are performed or furnished with respect to any real estate by any registered architect, registered forester, registered land surveyor, or registered professional engineer who is a member of a partnership or who is an agent or employee of a corporation or an association and the contract for the services is made for or on behalf of the owner with the partnership or corporation or association, the partnership, corporation, or association shall be entitled to all the privileges and benefits of Code Sections 44-14-361 and 44-14-362, just as if the partnership, corporation, or association was a registered architect, a registered forester, a registered professional engineer, or a registered land surveyor.

     

    § 44-14-366. Waiver and Release of Lien and Bond Rights

    (a) 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 or bond claim or of this Code section executed or made in advance of furnishing of labor, services, or materials is null, void, and unenforceable.
    (b) No oral or written statement by the claimant purporting to waive, release, impair, or otherwise adversely affect a lien or bond claim is enforceable or creates an estoppel or impairment of claim of lien or claim upon a bond unless:
    (1) It is pursuant to a waiver and release form duly executed by claimant prescribed below; and
    (2) The claimant has received payment for the claim as set forth in subsection (f) of this Code section.
    (c) When a claimant is requested to execute a waiver and release in exchange for or in order to induce payment other than final payment, the waiver and release shall substantially follow the following form, in boldface capital letters in at least 12 point font and the priority of such claimant’s lien rights, except as to retention, shall upon such payment thereafter run from the day after the date specified in such Interim Waiver and Release upon Payment form:
    INTERIM WAIVER AND RELEASE UPON PAYMENT
    STATE OF GEORGIA
    COUNTY OF __________
    THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY __________ (NAME OF CONTRACTOR) TO FURNISH __________ (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS __________ (TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF __________, COUNTY OF __________, AND IS OWNED BY __________ (NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
    (DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.) UPON THE RECEIPT OF THE SUM OF $__________, THE MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR MATERIAL BOND THROUGH THE DATE OF __________ (DATE) AND EXCEPTING THOSE RIGHTS AND LIENS THAT THE MECHANIC AND/OR MATERIALMAN MIGHT HAVE IN ANY RETAINED AMOUNTS, ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID BUILDING OR PREMISES. GIVEN UNDER HAND AND SEAL THIS __________ DAY OF __________, __________.
    __________ (SEAL)
    __________
    __________
    (WITNESS)
    __________
    (ADDRESS)
    NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE CONCLUSIVELY DEEMED TO HAVE BEEN PAID IN FULL THE AMOUNT STATED ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 60 DAYS AFTER THE DATE STATED ABOVE UNLESS YOU FILE EITHER AN AFFIDAVIT OF NONPAYMENT OR A CLAIM OF LIEN PRIOR TO THE EXPIRATION OF SUCH 60 DAY PERIOD. THE FAILURE TO INCLUDE THIS NOTICE LANGUAGE ON THE FACE OF THE FORM SHALL RENDER THE FORM UNENFORCEABLE AND INVALID AS A WAIVER AND RELEASE UNDER O.C.G.A. SECTION 44-14-366.
    Provided, however, that the failure to correctly complete any of the blank spaces in the above form shall not invalidate said form so long as the subject matter of said release may reasonably be determined.
    (d) When a claimant is requested to execute a waiver and release in exchange for or in order to induce making of final payment, the waiver and release shall substantially follow the following form in boldface capital letters in at least 12 point font: WAIVER AND RELEASE UPON FINAL PAYMENT
    STATE OF GEORGIA
    COUNTY OF __________
    THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY __________ (NAME OF CONTRACTOR) TO FURNISH __________ (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS __________ (TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF __________, COUNTY OF __________, AND IS OWNED BY __________ (NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
    (DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.)
    UPON THE RECEIPT OF THE SUM OF $__________, THE MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR MATERIAL BOND ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID PROPERTY.
    GIVEN UNDER HAND AND SEAL THIS __________ DAY OF __________, ___.
    __________ (SEAL)
    __________
    __________
    (WITNESS)
    __________
    (ADDRESS)
    NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE CONCLUSIVELY DEEMED TO HAVE BEEN PAID IN FULL THE AMOUNT STATED ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 60 DAYS AFTER THE DATE STATED ABOVE UNLESS YOU FILE EITHER AN AFFIDAVIT OF NONPAYMENT OR A CLAIM OF LIEN PRIOR TO THE EXPIRATION OF SUCH 60 DAY PERIOD. THE FAILURE TO INCLUDE THIS NOTICE LANGUAGE ON THE FACE OF THE FORM SHALL RENDER THE FORM UNENFORCEABLE AND INVALID AS A WAIVER AND RELEASE UNDER O.C.G.A. SECTION 44-14-366.
    Provided, however, that the failure to correctly complete any of the blank spaces in the above form shall not invalidate said form so long as the subject matter of said release may reasonably be determined.
    (e) Nothing contained in this Code section shall affect:
    (1) The enforceability of any subordination of lien rights by a potential lien claimant to the rights of any other party which may have or acquire an interest in all or any part of the real estate, factories, railroads, or other property for which the potential lien claimant has furnished labor, services, or material, even though such subordination is entered into in advance of furnishing labor, services, or material and even though the claimant has not actually received payment in full for its claim;
    (2) The enforceability of any waiver of lien rights given in connection with the settlement of a bona fide dispute concerning the amount due the lien claimant for labor, services, or material which have already been furnished;
    (3) The validity of a cancellation or release of a recorded claim of lien or preliminary notice of lien rights; or
    (4) The provisions of paragraph (2) of subsection (a) of Code Section 44-14-361.2, paragraphs (3) and (4) of subsection (a) and subsections (b) and (c) of Code Section 44-14-361.4, or Code Section 44-14-364.
    (f)(1) When a waiver and release provided for in this Code section is executed by the claimant, it shall be binding against the claimant for all purposes, subject only to payment in full of the amount set forth in the waiver and release.
    (2) Such amounts shall conclusively be deemed paid in full upon the earliest to occur of:
    (A) Actual receipt of funds;
    (B) Execution by the claimant of a separate written acknowledgment of payment in full; or
    (C) Sixty days after the date of the execution of the waiver and release, unless prior to the expiration of said 60 day period the claimant files a claim of lien or files in the county in which the property is located an affidavit of nonpayment, using substantially the following form in boldface capital letters in at least 12 point font:
    AFFIDAVIT OF NONPAYMENT UNDER O.C.G.A. SECTION 44-14-366
    STATE OF GEORGIA
    COUNTY OF __________
    THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY __________ (NAME OF CONTRACTOR) TO FURNISH __________ (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS __________ (TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF __________, COUNTY OF __________, AND IS OWNED BY __________ (NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
    (DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.) PURSUANT TO O.C.G.A. SECTION 44-14-366 THE UNDERSIGNED EXECUTED A LIEN WAIVER AND RELEASE WITH RESPECT TO THIS PROPERTY DATED __________, ___. THE AMOUNT SET FORTH IN SAID WAIVER AND RELEASE ($__________) HAS NOT BEEN PAID, AND THE UNDERSIGNED HEREBY GIVES NOTICE OF SUCH NONPAYMENT. THE ABOVE FACTS ARE SWORN TRUE AND CORRECT BY THE UNDERSIGNED, THIS __________ DAY OF __________, ___.
    __________ (SEAL)
    CLAIMANT”S SIGNATURE
    SWORN TO AND EXECUTED
    IN THE PRESENCE OF:
    __________
    WITNESS
    __________
    NOTARY PUBLIC
    WITHIN SEVEN DAYS OF FILING THIS AFFIDAVIT OF NONPAYMENT, THE FILING PARTY SHALL SEND A COPY OF THE AFFIDAVIT BY REGISTERED OR CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY TO THE OWNER OF THE PROPERTY. IF THE FILING PARTY IS NOT IN PRIVITY OF CONTRACT WITH THE PROPERTY OWNER AND A NOTICE OF COMMENCEMENT IS FILED FOR THE IMPROVEMENT ON THE PROPERTY FOR WHICH THE FILING PARTY’S LABOR, SERVICES, OR MATERIALS WERE FURNISHED, A COPY OF THE AFFIDAVIT SHALL BE SENT TO THE CONTRACTOR AT THE ADDRESS SHOWN ON THE NOTICE OF COMMENCEMENT. WHENEVER THE OWNER OF THE PROPERTY IS AN ENTITY ON FILE WITH THE SECRETARY OF STATE’S CORPORATIONS DIVISION, SENDING A COPY OF THE LIEN TO THE COMPANY’S ADDRESS OR THE REGISTERED AGENT’S ADDRESS ON FILE WITH THE SECRETARY OF STATE SHALL BE DEEMED SUFFICIENT.
    (3) A claimant who is paid, in full, the amount set forth in the waiver and release form after filing an affidavit of nonpayment shall upon request execute in recordable form an affidavit swearing that payment in full has been received. Upon recordation thereof in the county in which the Affidavit of Nonpayment was recorded, the affidavit of nonpayment to which it relates shall be deemed void.
    (4) Nothing in this Code section shall shorten the time within which to file a claim of lien.
    (5) A waiver and release provided in this Code section shall be suspended upon filing of an affidavit of nonpayment until payment in full has been received.
    (6) The claimant may rely upon the information contained in the waiver and release form when completing for filing the affidavit of nonpayment or claim of lien.

     

    § 44-14-367. Failure to Commence Lien Action; Expiration of Lien

    Failure of a lien claimant to commence a lien action to collect the amount of his or her claim within 365 days from the date of filing the lien, or failure of the lien claimant to file the statutory notice of commencement of lien action in the county where the property is located, renders the claim of lien unenforceable. A claim of lien may be disregarded if no notice of commencement of lien action was filed within 395 days from the date the claim of lien was filed. Any lien filed after March 31, 2009, shall include on the face of the lien the following statement in at least 12 point bold font: This claim of lien expires and is void 395 days from the date of filing of the claim of lien if no notice of commencement of lien action is filed in that time period. Failure to include such language shall invalidate the lien and prevent it from being filed. No release or voiding of such liens shall be required. A lien shall expire sooner and be disregarded once it is determined that no notice of commencement was timely filed in response to a notice of contest pursuant to Code Section 44-14-368.

     

    § 44-14-368. Notice of Contest of Lien; Lien Extinguished 90 Days After Filing Notice of Contest if No Notice of Commencement of Lien Action Filed

    (a) An owner or an owner’s agent or attorney, or the contractor or contractor’s agent or attorney, may elect to shorten the time prescribed in which to commence a lien action to enforce any claim of lien by recording in the superior court clerk’s office a notice in substantially the following form, in boldface capital letters in at least 12 point font, along with proof of delivery upon the lien claimant:
    “NOTICE OF CONTEST OF LIEN
    TO: [NAME AND ADDRESS OF LIEN CLAIMANT]
    YOU ARE NOTIFIED THAT THE UNDERSIGNED CONTESTS THE CLAIM OF LIEN FILED BY YOU ON __________ 20___, AND RECORDED IN __________ BOOK __________, PAGE __________ OF THE PUBLIC RECORDS OF __________ COUNTY, GEORGIA, AGAINST PROPERTY OWNED BY __________, AND THAT THE TIME WITHIN WHICH YOU MAY COMMENCE A LIEN ACTION TO ENFORCE YOUR LIEN IS LIMITED TO 60 DAYS FROM RECEIPT OF THIS NOTICE. THIS __________ DAY OF __________, 20___.
    THIS ABOVE-REFERENCED LIEN WILL EXPIRE AND BE VOID IF YOU DO NOT: (1) COMMENCE A LIEN ACTION FOR RECOVERY OF THE AMOUNT OF THE LIEN CLAIM PURSUANT TO O.C.G.A. SECTION 44-14-361.1 WITHIN 60 DAYS FROM RECEIPT OF THIS NOTICE; AND (2) FILE A NOTICE OF COMMENCEMENT OF LIEN ACTION WITHIN 30 DAYS OF FILING THE ABOVE-REFERENCED LIEN ACTION.
    SIGNED: __________
    (OWNER, CONTRACTOR, AGENT OR ATTORNEY)”
    (b) The clerk of the superior court shall cross-reference the notice of contest of lien to the lien. The owner or his or her agent or attorney, or the contractor or his or her agent or attorney, shall send a copy of the notice of contest of lien within seven days of filing by registered or certified mail or statutory overnight delivery to the lien claimant at the address noted on the face of the lien. Service shall be deemed complete upon mailing.
    (c) The lien shall be extinguished by law 90 days after the filing of the notice of contest of lien if no notice of commencement of lien action is filed in that time period. No release or voiding of such liens shall be required. This subsection shall not be construed to extend the time in which a lien action must begin.

     

    § 44-14-369. Computation of Time

    For the purposes of this part, the computation of time shall be determined pursuant to paragraph (3) of subsection (d) of Code Section 1-3-1.

    - See more at: http://www.zlien.com/mechanics-lien/georgia-lien-statute/#sthash.rI6V1t3K.dpuf

  • Hawaii, (post date:2013-04-23 22:59:22)

    Hawaii Lien Law

    Notice Req.
    Intent to Lien
    Lien Req.
    Prime Contractor

    Not required

    Not Required

    “Application for Mechanic’s and Materialman’s Lien” is required to be filed after demand for payments but no even later than “within 45 days after the Date of Completion of the improvements against which it is filed.” Court will determine within 3-10 days after the service of “Application for Mechanic’s and Materialman’s Lien”

    If courts determine is probably cause for a lien, the lien will move forward and next action would be required to be brought within Three months (3 months)

    Sub Contractor

    Not required

    Not Required

    “Application for Mechanic’s and Materialman’s Lien” is required to be filed after demand for payments but no even later than “within 45 days after the Date of Completion of the improvements against which it is filed.” Court will determine within 3-10 days after the service of “Application for Mechanic’s and Materialman’s Lien”

    If courts determine is probably cause for a lien, the lien will move forward and next action would be required to be brought within Three months (3 months)

    Suppliers/Other

    Not required

    Not Required

    “Application for Mechanic’s and Materialman’s Lien” is required to be filed after demand for payments but no even later than “within 45 days after the Date of Completion of the improvements against which it is filed.” Court will determine within 3-10 days after the service of “Application for Mechanic’s and Materialman’s Lien”

    If courts determine is probably cause for a lien, the lien will move forward and next action would be required to be brought within Three months (3 months)

    PRIVATE PROJECTS:

    Hawaii

    Affidavit of Publication and Notice of Completion, Notice of Mechanic’s and Material man’s Lien and Demand, Application for Mechanic’s and Material man’s Lien

     

    1. Do I have to file any notices before I start work on a property in Hawaii?

    The contractor must orally inform the owner of all lien rights of the parties performing improvement to the property.  The contractor must provide the owner with a detailed contract of the improvement, it must both be signed by owner and contractor, before any services begin.

     

    2. How long do I have to file a claim of lien in Hawaii?

    You can file a Claim of Lien within 45 days of your Date of Completion if payment was refused or not paid when due. Your date of final completion is the date when you file an Affidavit of Publication and Notice of Completion.

    SECURE YOUR LIEN RIGHTS by filing a Claim of Lien, Affidavit of Publication and Notice of Completion 

     

    3. When is my last day of work so that I can file a lien to get paid?

    The date of completion of the entire project.

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    4. Who are protected under the lien rights in the state of Hawaii?

    Those who supply materials, services, or furnish labor in the improvement of the property will be protected.

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    5. How long do I have to file for a lien of foreclosure?

    3 months after a filed order directing lien to attach.  

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    6. Is there any mandatory notice requirement in Hawaii?

    The Application for Mechanic’s and Material man’s Lien and Notice of Mechanic’s and Material man’s Lien and Demand must be served upon the owner of the property or party of interest.

    SECURE YOUR LIEN RIGHTS by filing a Claim of Lien, Affidavit of Publication and Notice of Completion 

    7. What cost are not eligible for claim?

    Interest, attorney fees, lost profits, transportation costs, housing for workers out of state (if not included in the contract), and damages.

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    MILLER ACT STATUTE:

    The Hawaii “Little Miller Act

    Hawaii Revised Statutes, Chapter 103D, Hawaii Public Procurement Code, Part III, Source Selection and Contract Formation, Sections 103D-323 through 103D-325
    __________________________________________________________________________________

          §103D-323 Bid security.

    (a) Unless the policy board determines otherwise by rules, bid security shall be required only for construction contracts to be awarded pursuant to sections 103D-302 and 103D-303 and when the price of the contract is estimated by the procurement officer to exceed $25,000 or, if the contract is for goods or services, the purchasing agency secures the approval of the chief procurement officer. Bid security shall be a bond provided by a surety company authorized to do business in the State, or the equivalent in cash, or otherwise supplied in a form specified in rules.

    (b) Bid security shall be in an amount equal to at least five per cent of the amount of the bid.

    (c) Unless, pursuant to rules, it is determined that a failure to provide bid security is nonsubstantial, all bids required to be accompanied by bid security shall be rejected when not accompanied by the required bid security.

    (d) After the bids are opened, they shall be irrevocable for the period specified in the invitation for bids, except as provided in section 103D-302(g). If a bidder is permitted to withdraw its bid before award, no action shall be had against the bidder or the bid security.

          §103D-324 Contract performance and payment bonds.

     (a) Unless the policy board determines otherwise by rules, the following bonds or security shall be delivered to the purchasing agency and shall become binding on the parties upon the execution of the contract if the contract which is awarded exceeds $25,000 and is for construction, or the purchasing agency secures the approval of the chief procurement officer:

    (1) A performance bond in a form prescribed by the rules of the policy board, executed by a surety company authorized to do business in this State or otherwise secured in a manner satisfactory to the purchasing agency, in an amount equal to one hundred per cent of the price specified in the contract;

    (2) A payment bond in a form prescribed by the rules of the policy board, executed by a surety company authorized to do business in this State or otherwise secured in a manner satisfactory to the purchasing agency, for the protection of all persons supplying labor and material to the contractor for the performance of the work provided for in the contract. The bond shall be in an amount equal to one hundred per cent of the price specified in the contract; or

    (3) A performance and payment bond which satisfies all of the requirements of paragraphs (1) and (2).

    (b) The policy board may adopt rules that authorize the head of a purchasing agency to reduce the amount of performance and payment bonds.

    (c) Nothing in this section shall be construed to limit the authority of the chief procurement officer to require a performance bond or other security in addition to those bonds, or in circumstances other than specified in subsection (a).

    (d) Every person who has furnished labor or material to the contractor for the work provided in the contract, in respect of which a payment bond or a performance and payment bond is furnished under this section, and who has not been paid amounts due therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed or material was furnished or supplied, for which such a claim is made, may institute an action for the amount, or balance thereof, unpaid at the time of the institution of the action against the contractor and its sureties, on the payment bond or the performance and payment bond, and have their rights and claims adjudicated in the action, and judgment rendered thereon; subject to the State’s priority on the bonds. If the full amount of the liability of the sureties on the payment bond is insufficient to pay the full amount of the claims, then, after paying the full amount due the State, the remainder shall be distributed pro rata among the claimants.

    As a condition precedent to any such suit, written notice shall be given to contractor and surety, within ninety days from the date on which the person did or performed the last labor or furnished or supplied the last of the material for which claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed.

    The written notice shall be served by registered or certified mailing of the notice, to the contractor and surety, at any place they maintain an office or conduct their business, or in any manner authorized by law to serve summons.

    (e) Every suit instituted under subsection (d) shall be brought in the circuit court of the circuit in which the project is located, but no such suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied for the work provided in the contract. The obligee named in the bond need not be joined as a party in any such suit.

    The terms “labor” and “material” have the same meanings in this section as the terms are used in section 507-41.

          §103D-325 Bond forms and copies. 

    (a) The policy board shall specify the form of the bonds required by this chapter by procurement directive.

    (b) Any person may request and obtain from the State a certified copy of a bond upon payment of the cost of reproduction of the bond and postage, if any. A certified copy of a bond shall be prima facie evidence of the contents, execution, and delivery of the original.

  • Idaho, (post date:2013-04-23 22:59:35)

    Idaho Lien Law

    Notice Req.
    Intent to Lien
    Lien Req.
    Prime Contractor

    A residential disclosure is need on residential projects before a contract for projects that exceed $2,000.

    A lien must be filed 90 days after last furnishing services. Enforcement is due within 6 months of filing.

    Sub Contractor

    Not Required

    A lien must be filed 90 days after last furnishing services. Enforcement is due within 6 months of filing.

    Suppliers/Other

    Not Required

    A lien must be filed 90 days after last furnishing services. Enforcement is due within 6 months of filing.

    PRIVATE PROJECTS:

    Idaho 101

    Residential Disclosure, Mechanic’s Lien

     

    1. How long do I have to file a claim of lien in Idaho?

    90 days from the date, last labor or materials were furnished.

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    2. Do I have to file any notices before I start work on a property in Idaho?

    No. In exception for residential construction, a general contractor must give the owner a Residential Disclosure, for cost over $2,000.

    SECURE YOUR LIEN RIGHTS by filing a Residential Disclosure NOW! 

     

    3. When is my last day of work so that I can file a lien to get paid?

    The last day services were last performed in accordance to the contract. 

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    4. How long do I have to file for a lien of foreclosure?

    6 months from the date the Claim of Lien was filed. 

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    5. Is there a mandatory notice requirement in Idaho?

    Yes, notice of filing a Claim of Lien must be given to the owner.

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    6. Who satisfies the lien when I get paid?

    There is no specific requirements on how records or satisfies a lien upon payment.

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    7. What cost can I claim for?

    Attorney fees at a court level are covered. Materials, professional services, final furnished labor, and rental equipment used for the project are covered.

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    MILLER ACT STATUTE:

    The Idaho “Little Miller Act

    Idaho Code, Title 54, Professions, Vocations and Businesses, Chapter 19, Public Works Contractors, Sections 54-1925 through 54-1930
    ___________________________________________________________________________________

    Copyright © State of Idaho. All rights reserved. Pursuant to Idaho Code section 9-350, the Idaho Code shall not be reprinted, published or distributed for any commercial purpose.

    54-1925. PUBLIC CONTRACTS BOND ACT — SHORT TITLE.

    This act may be cited as the Public Contracts Bond Act.

    54-1926. PERFORMANCE AND PAYMENT BONDS REQUIRED OF CONTRACTORS FOR PUBLIC BUILDINGS AND PUBLIC WORKS OF THE STATE, POLITICAL SUBDIVISIONS AND OTHER PUBLIC INSTRUMENTALITIES — REQUIREMENTS FOR BONDS — GOVERNMENTAL OBLIGATIONS.

     Before any contract for the construction, alteration, or repair of any public building or public work or improvement of the state of Idaho, or of any county, city, town, municipal corporation, township, school district, public educational institution, or other political subdivision, public authority, or public instrumentality, or of any officer, board, commission, institution, or agency of the foregoing, is awarded to any person, he shall furnish to the state of Idaho, or to such county, city, town, municipal corporation, township, school district, public educational institution, or other political subdivision, public authority, or public instrumentality, or to such officer, board, commission, institution, or agency thereof, bonds which shall become binding upon the award of the contract to such person, who is hereinafter designated as “contractor”:

          (1) A performance bond in any amount to be fixed by the contracting body, but in no event less than eighty-five percent (85%) of the contract amount conditioned upon the faithful performance of the contract in accordance with the plans, specifications and conditions thereof. Said bond shall be solely for the protection of the public body awarding the contract.

          (2) A payment bond in an amount to be fixed by the contracting body but in no event less than eighty-five percent (85%) of the contract amount, solely for the protection of persons supplying labor or materials, or renting, leasing, or otherwise supplying equipment to the contractor or his subcontractors in the prosecution of the work provided for in such contract.

          (3) Public bodies requiring a performance bond or payment bond in excess of fifty percent (50%) of the total contract amount shall not be authorized to withhold from the contractor or subcontractor any amount exceeding five percent (5%) of the total amount payable as retainage. Further, the public body shall release to the contractor any retainage for those portions of the project accepted by the contracting public body and the contractors as complete within thirty (30) days after such acceptance. Contractors, contracting with subcontractors pursuant to contract work with a public body, shall not be authorized to withhold from the subcontractor any amount exceeding five percent (5%) of the total amount payable to the subcontractor as retainage. The contractor shall remit the retainage to the subcontractor within thirty (30) days after completion of the subcontract.

          Each bond shall be executed by a surety company or companies duly authorized to do business in this state, or the contractor may deposit any of the type of government obligations listed in subsection (2)(h) of section 54-1901, Idaho Code, in lieu of furnishing a surety company performance or payment bond or bonds. In the case of contracts of the state or a department, board, commission, institution, or agency thereof the aforesaid bonds shall be payable to the state, or particular state agency where authorized. In case of all other contracts subject to this chapter, the bonds shall be payable to the public body concerned.

          Said bonds shall be filed in the office of the department, board, commission, institution, agency or other contracting body awarding the contract.

          Nothing in this section shall be construed to limit the authority of the state of Idaho or other public body hereinabove mentioned to require a performance bond or other security in addition to these, or in cases other than the cases specified in this chapter.

          It shall be illegal for the invitation for bids, or any person acting or purporting to act, on behalf of the contracting body to require that such bonds be furnished by a particular surety company, or through a particular agent or broker.

    54-1926A. USE OF GOVERNMENT OBLIGATIONS INSTEAD OF SURETY BONDS. 

    (a) If a person is required under a law of the state of Idaho to give a surety bond, the person may give a government obligation, as defined in subsection (2)(h) of section 54-1901, Idaho Code. The government obligation shall:

                (1) Be given to the official having authority to approve the surety bond, or its authorized custodian;

                (2) Be in an amount equal at fair market value to the penal sum of the required surety bond; and

                (3) Authorize the official receiving the obligation to collect or sell the obligation if the person defaults on a required condition.

          (b) (1) An official receiving a government obligation under subsection (a) of this section may deposit it with:

                            1. The state treasurer;

                            2. A national or state chartered bank; or

                           3. A depository designated by the state treasurer.

                (2) The state treasurer, bank, or depository shall issue a safekeeping receipt that describes the obligation deposited.

          (c) Using a government obligation instead of a surety bond for security is the same as using:

                (1) A corporate surety bond;

                (2) A certified check;

                (3) A bank draft;

                (4) A post office money order; or

                (5) Cash.

          (d) When security is no longer required, a government obligation given instead of a surety bond shall be returned to the person giving the obligation. If a person supplying labor or material to a contractor defaulting under the public contracts bond act, sections 54-1925 through 54-1930, Idaho Code, files with the contracting body the application and affidavit provided under section 54-1927, Idaho Code, the contracting body:

                (1) May return to the contractor the government obligation given as security or proceeds of the government obligation given under the public contracts bond act, sections 54-1925 through 54-1930, Idaho Code, only after the ninety (90) day period for bringing a civil action under section 54-1927, Idaho Code;

                (2) Shall hold the government obligation or the proceeds subject to the order of the court having jurisdiction of the action if a civil action is brought in the ninety (90) day period.

          (e) The provisions of this section do not affect the:

                (1) Priority of a claim of the contracting body against a government obligation given under this section;

                (2) Right or remedy of the contracting body for default on an obligation provided under this section;

                (3) Authority of a court over a government obligation given as security in a civil action; and

                (4) Authority of an official of the state of Idaho authorized by another law to receive a government obligation as security.

          (f) To avoid frequent substitution of government obligations, the state treasurer may promulgate rules limiting the effect of the provisions of this section, to a government obligation maturing more than one (1) year after the date the obligation is given as security.

    54-1927. CLAIMS FOR LABOR OR MATERIAL FURNISHED OR EQUIPMENT SUPPLIED — SUIT ON CONTRACTOR’S PAYMENT BOND — PROCEDURE — LIMITATION.

    Every claimant who has furnished labor or material or rented, leased, or otherwise supplied equipment in the prosecution of the work provided for in such contract in respect of which a payment bond is furnished under this act, and who has not been paid in full therefor before the expiration of a period of ninety (90) days after the day on which the last of the labor was done or performed by him or material or equipment was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute such action to final judgment for the sum or sums justly due him and have execution thereon; provided, however, that any such claimant having a direct contractual relationship with a subcontractor of the contractor furnishing such payment bond but no contractual relationship expressed or implied with such contractor shall not have a right of action upon such payment bond unless he has given written notice to such contractor within ninety (90) days from the date on which such claimant performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the person to whom the material or equipment was furnished or supplied or for whom the labor was done or performed. Each notice shall be served by mailing the same by registered or certified mail, postage prepaid, in an envelope addressed to the contractor at any place he maintains an office or conducts his business or at his residence.

          The contracting body and the agent in charge of its office, is authorized and directed to furnish, to anyone making application therefor who submits an affidavit that he has supplied labor, equipment, or materials for such work and payment therefor has not been made or that he is being sued on any such bond, or that it is the surety thereon, a certified copy of such bond and the contract for which it was given, which copy shall be prima-facie evidence of the contents, execution, and delivery of the original. Applicants shall pay for such certified copies such reasonable fees as the contracting body or the agent in charge of its office fixes to cover the actual cost of the preparation thereof.
    Every suit instituted on the aforesaid payment bond shall be brought in appropriate court in any county in which the contract was to be performed and not elsewhere; provided, however, that no such suit shall be commenced after the expiration of one (1) year from the date on which the claimant performed the last of the labor or furnished or supplied the last of the material or equipment for which such suit is brought, except, that if the claimant is a subcontractor of the contractor, no such suit shall be commenced after the expiration of one (1) year from the date on which final payment under the subcontract became due.

    54-1928. LIABILITY OF PUBLIC BODY FOR FAILURE TO OBTAIN PAYMENT BOND. 

    Any public body subject to this act which shall fail or neglect to obtain the delivery of the payment bond as required by this act, shall, upon demand, itself promptly make payment to all persons who have supplied materials or performed labor in the prosecution of the work under the contract, and any such creditor shall have a direct right of action upon his account against such public body in any court having jurisdiction in any county in which the contract was to be performed and executed which action shall be commenced within one (1) year after the furnishing of materials or labor.

    54-1929. ATTORNEY’S FEES ALLOWED. 

    In any action brought upon either of the bonds provided herein, or against the public body failing to obtain the delivery of the payment bond, the prevailing party, upon each separate cause of action, shall recover a reasonable attorney’s fee to be taxed as costs.

    54-1930. MEANING OF TERMS USED IN ACT.

     The terms “person” and “claimant” and the masculine pronoun as used in this act shall include individuals, associations, copartnerships, or corporations.

    LIEN STATUTE:
    TITLE 45 LIENS, MORTGAGES AND PLEDGESCHAPTER 5 LIENS OF MECHANICS AND MATERIALMEN45-501 Right to Lien45-504 Lien for Improving Lots45-505 Land Subject to Lien45-506 Liens Preferred Claims45-507 Claim of Lien45-508 Claims Against Two Buildings

    45-509 Record of Lien Claims

    45-510 Duration of Lien

    45-511 Recovery by Contractor ¾ Deduction of Debts to Subcontractors

    45-512 Judgment to Declare Priority

    45-513 Joinder of Actions ¾ Filing Fees as Costs ¾ Attorney’s Fees

    45-514 Exemption of Materials from Execution

    45-515 Action to Recover Debt

    45-516 Rules of Practice and Appeals

    45-517 Lien for Workmen’s Compensation Security

    45-518 Release of Lien on Real Property by Posting Surety Bond ¾ Manner

    45-519 Release of Lien on Real Property by Posting Surety Bond ¾ Form of Bond

    45-520 Release of Lien on Real Property by Posting Surety Bond ¾ Petition for Release ¾ Service of Copy of Petition

    45-521 Release of Lien on Real Property by Posting Surety Bond ¾ Hearing on Petition ¾ Contents and Effect of Order Releasing Lien

    45-522 Release of Lien on Real Property by Posting Surety Bond ¾ Action Against Debtor and Surety ¾ Preferential Settings

    45-523 Release of Lien on Real Property by Posting Surety Bond ¾ Motion to Enforce Liability of Surety

    45-524 Release of Lien on Real Property by Posting Surety Bond ¾ Exception to Sufficiency of Surety

    TITLE 45 LIENS, MORTGAGES AND PLEDGES

    CHAPTER 5 LIENS OF MECHANICS AND MATERIALMEN

    45-501 Right to Lien

    Every person performing labor upon, or furnishing materials to be used in the construction, alteration or repair of any mining claim, building, wharf, bridge, ditch, dike, flume, tunnel, fence, machinery, railroad, wagon road, aqueduct to create hydraulic power, or any other structure, or who grades, fills in, levels, surfaces or otherwise improves any land, or who performs labor in any mine or mining claim, and every professional engineer or licensed surveyor under contract who prepares or furnishes designs, plans, plats, maps, specifications, drawings, surveys, estimates of cost, on site observation or supervision, or who renders any other professional service whatsoever for which he is legally authorized to perform in connection with any land or building development or improvement, or to establish boundaries, has a lien upon the same for the work or labor done or professional services or materials furnished, whether done or furnished at the instance of the owner of the building or other improvement or his agent; and every contractor, subcontractor, architect, builder or any person having charge of any mining claim, or of the construction, alteration or repair, either in whole or in part, of any building or other improvement, as aforesaid, shall be held to be the agent of the owner for the purpose of this chapter: provided, that the lessee or lessees of any mining claim shall not be considered as the agent or agents of the owner under the provisions of this chapter.

    45-504 Lien for Improving Lots

    Any person who, at the request of the owner of any lot in any incorporated city or town, surveys, grades, fills in, or otherwise improves the same, or the street in front of or adjoining the same, has a lien upon such lot for his work done or material furnished.

    45-505 Land Subject to Lien

    The land upon which or in connection with which any professional services are performed or any building, improvement or structure is constructed, together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof, to be determined by the court on rendering judgment, is also subject to the lien, if, at the commencement of the furnishing of professional services or other work or of the furnishing of the material for the same, the land belonged to the person who caused said professional services to be performed or said building, improvement or structure to be constructed, altered or repaired, but if such person owns less than a fee simple estate in such land, then only his interest therein is subject to such lien.

    45-506 Liens Preferred Claims

    The liens provided for in this chapter are preferred to any lien, mortgage or other encumbrance, which may have attached subsequent to the time when the building, improvement or structure was commenced, work done, or materials or professional services were commenced to be furnished; also to any lien, mortgage, or other encumbrance of which the lienholder had no notice, and which was unrecorded at the time the building, improvement or structure was commenced, work done, or materials or professional services were commenced to be furnished.

    45-507 Claim of Lien

    Any person claiming a lien pursuant to the provisions of this chapter must, within ninety (90) days after the completion of the labor or services or furnishing of materials, or the cessation of the labor, services or furnishing of materials for any cause, file for record with the county recorder for the county in which such property or some part thereof is situated, a claim containing a statement of his demand, after deducting all just credits and offsets, with the name of the owner, or reputed owner, if known, and also the name of the person by whom he was employed or to whom he furnished the materials, and also a description of the property to be charged with the lien, sufficient for identification, which claim must be verified by the oath of the claimant, his agent or attorney, to the effect that the affiant believes the same to be just. A true and correct copy of the claim of lien shall be served on the owner or reputed owner of the property either by delivering a copy thereof to the owner or reputed owner personally or by mailing a copy thereof by certified mail to the owner or reputed owner at his last known address. Such delivery or mailing shall be made no later than twenty-four (24) hours following the filing of said claim of lien.

    45-508 Claims Against Two Buildings

    In every case in which one (1) claim is filed against two (2) or more buildings, mines, mining claims, or other improvements, owned by the same person, the person filing such claim must, at the same time, designate the amount due him on each of said buildings, mines, mining claims, or other improvement; otherwise the lien of such claim is postponed to other liens. The lien of such claim does not extend beyond the amount designated as against other creditors having liens by judgment, mortgage, or otherwise, upon either of such buildings, or other improvements, or upon the land upon which the same are situated.

    45-509 Record of Lien Claims

    The county recorder must record the claims mentioned in this chapter in a book kept by him for that purpose, which record must be indexed, as deeds and other conveyances are required by law to be indexed, and for which he may receive the same fees as are allowed by law for recording deeds or other instruments.

    45-510 Duration of Lien

    No lien provided for in this chapter binds any building, mining claim, improvement or structure for a longer period than six (6) months after the claim has been filed, unless proceedings be commenced in a proper court within that time to enforce such lien; or unless a payment on account is made, or extension of credit given with expiration date thereof, and such payment or credit and expiration date, is endorsed on the record of the lien, then six (6) months after the date of such payment or expiration of extension. The lien of a final judgment obtained on any lien provided for in this chapter shall cease five (5) years from the date the judgment becomes final, but if such period of five (5) years has expired or will expire before September 1, 1947, the owner of such judgment lien shall have until September 1, 1947, within which to levy execution under such judgment.

    45-511 Recovery by Contractor ¾ Deduction of Debts to Subcontractors

    The original or subcontractor shall be entitled to recover, upon the claim filed by him, only such amount as may be due to him according to the terms of his contract, and, if applicable, such other amounts as may be found due to the lien claimant by the court pursuant to section 45-522, Idaho Code, after deducting all claims of other parties for work done and materials furnished to him as aforesaid, of which claim of lien shall have been filed as required by this chapter, and in all cases where a claim shall be filed under this chapter for work done or materials furnished to any subcontractor, he shall defend any action brought thereupon at his own expense; and during the pendency of such action, the person indebted to the contractor may withhold from such contractor the amount of money for which claim is filed; and in case of judgment upon the lien, the person indebted in the contract shall be entitled to deduct from any amount due or to become due by him to such contractor, the amount of such judgment and costs; and if the amount of such judgment and costs shall exceed the amount due from him to such contractor, if the person indebted in the contract shall have settled with such contractor in full, he shall be entitled to recover back from such contractor any amount so paid by him in excess of the contract price, and for which such contractor was originally the party liable.

    45-512 Judgment to Declare Priority

    In every case in which different liens are asserted against any property, the court in the judgment must declare the rank of each lien or class of liens which shall be in the following order:

    1. All laborers, other than contractors or subcontractors.
    2. All materialmen, other than contractors or subcontractors.
    3. Subcontractors.
    4. The original contractor.
    5. All professional engineers and licensed surveyors. And in case the proceeds of sale under this chapter shall be insufficient to pay all lienholders under it:

    1. The liens of all laborers, other than the original contractor and subcontractor, shall first be paid in full, or pro rata if the proceeds be insufficient to pay them in full.
    2. The lien of materialmen, other than the original contractor or subcontractor, shall be paid in full, or pro rata if the proceeds be insufficient to pay them in full.
    3. Out of the remainder, if any, the subcontractors shall be paid in full, or pro rata if the remainder be insufficient to pay them in full, and the remainder, if any, shall be paid pro rata to the original contractor and the professional engineers and licensed surveyors; and each claimant shall be entitled to execution for any balance due him after such distribution; such execution to be issued by the clerk of the court upon demand, at the return of the sheriff or other officer making the sale, showing such balance due.

    45-513 Joinder of Actions ¾ Filing Fees as Costs ¾ Attorney’s Fees

    Any number of persons claiming liens against the same property may join in the same action, and when separate actions are commenced the court may consolidate them. The court shall also allow as part of the costs the moneys paid for filing and recording the claim, and reasonable attorney’s fees.

    45-514 Exemption of Materials from Execution

    Whenever materials shall have been furnished for use in the construction, alteration or repair of any buildings, or other improvement, such materials shall not be subject to attachment, execution or other legal process, to enforce any debt due by the purchaser of such materials, except a debt due for the purchase money thereof, so long as, in good faith, the same are being applied to the construction, alteration or repair of such building, mining claim or other improvement.

    45-515 Action to Recover Debt

    Nothing contained in this chapter shall be construed to impair or affect the right of any person to whom any debt may be due for work done or materials furnished, to maintain a personal action to recover such debt against the person liable therefore.

    45-516 Rules of Practice and Appeals

    Except as otherwise provided in this chapter, the provisions of this code relating to civil actions, new trials and appeals are applicable to, and constitute the rules of practice in, the proceedings mentioned in this chapter: provided, that the district courts shall have jurisdiction of all actions brought under this chapter.

    45-517 Lien for Workmen’s Compensation Security

    The term “labor” as used in this title, shall include the cost of workmen’s compensation and occupational disease compensation security required by the provisions of [sections 72-301 ¾ 72-304, Idaho Code,] and amendments thereto, payment for which security has not been made.

    45-518 Release of Lien on Real Property by Posting Surety Bond ¾ Manner

    A mechanic’s lien of record upon real property may be released upon the posting of a surety bond in the manner provided in sections 45-519 through 45-524, Idaho Code.

    45-519 Release of Lien on Real Property by Posting Surety Bond ¾ Form of Bond

    The debtor of the lien claimant or a party in interest in the premises subject to the lien must obtain a surety bond executed by the debtor of the lien claimant or a party in interest in the premises subject to the lien, as principal, and executed by a corporation authorized to transact surety business in this state, as surety, in substantially the following form:

    (Title of court and cause, if action has been commenced) WHEREAS, ________ (name of owner, contractor, or other person disputing the lien) desires to give a bond for releasing the following described real property from that certain claim of mechanic’s lien in the sum of $________ recorded ________ 20.., in the office of the recorder in ___________ (name of county where the real property is situated): _______________ (legal description)

    NOW, THEREFORE, the undersigned principal and surety do hereby obligate themselves to __________ (name of claimant) the claimant named in the mechanic’s lien, under the conditions prescribed by sections 45-518 through 45-524, Idaho Code, inclusive, in the sum of $______. (1-1/2 x claim), from which sum they will pay the claimant such amount as a court of competent jurisdiction may adjudge to have been secured by his lien, with interest, costs and attorney’s fees. IN WITNESS WHEREOF, the principal and surety have executed this bond at _________ Idaho, on the _______day of ______ 20__.

    ______________________ (Signature of Principal)

    (SURETY CORPORATION)

    BY ___________________ (Its Attorney in Fact)

    State of Idaho ( _______________) ss. County of (___________)

    On _________, 20__, before me, the undersigned, a notary public of this county and state, personally appeared ___________ who acknowledged that he executed the foregoing instrument as principal for the purposes therein mentioned and also personally appeared ______________ known (or satisfactorily proved) to me to be the attorney in fact of the corporation that executed the foregoing instrument and known to me to be the person who executed that instrument on behalf of the corporation therein named, and he acknowledged to me that that corporation executed the foregoing instrument.
    _______________________(Notary Public in and for the County and State)

    45-520 Release of Lien on Real Property by Posting Surety Bond ¾ Petition for Release ¾ Service of Copy of Petition

    (1) A petition for the release of a mechanic’s lien by posting a surety bond must be filed in the district court of the county wherein the property is located and shall set forth:

    (a) The title of the cause, thus: “In the matter of the petition of ________________ (name of petitioner) for release of mechanic’s lien of ______________ (name of mechanic’s lien claimant) upon posting surety bond.”
    (b) An allegation of the purchase of and payment of the premium for the bond, and the dates of purchase and payment.
    (c) An allegation incorporating by reference a true copy of the bond, which copy must be attached to the petition.
    (d) The name or names of the owner or reputed owners of the land subject to the lien.
    (e) A description of the real property subject to the lien, and the instrument number of the lien as given by the recorder’s office.
    (f) A prayer for an order releasing the lien.

    (2) The petitioner shall obtain an order from the district court setting forth the time and date of the hearing on the petition, which time and date must be at least five (5) days after the date of the order and not more than ten (10) days after the date of the order.
    (3) A copy of the petition and a copy of the order must be served on the lien claimant at least two (2) days before the date set for the hearing and served in the manner provided by law for service of summons.

    45-521 Release of Lien on Real Property by Posting Surety Bond ¾ Hearing on Petition ¾
    Contents and Effect of Order Releasing Lien

    (1) Upon the hearing, the court shall enter its order releasing the mechanic’s lien upon the petitioner’s filing in open court the original bond, and introducing into evidence a receipt for payment of the premium.
    (2) The entry of the order by the court must refer to the property which is the subject of the lien and the lien itself, by instrument number, and must recite that the lien is released of record for all purposes to the same extent as if released of record by the lienor.
    (3) Upon entry of the order, the lien is released of record in its entirety and for all purposes and the real property, the subject of the lien, is released from the encumbrances of the lien.
    (4) There is no appeal from the entry of an order pursuant to the provisions of this section and upon entry the order is final for all purposes.

    45-522 Release of Lien on Real Property by Posting Surety Bond ¾ Action Against Debtor and Surety ¾ Preferential Settings

    (1) The lien claimant is entitled to bring an action against the lien claimant’s debtor and to join therein the surety on the bond. The rights of the lien claimant include and the court may award to him in that action:

    (a) The amount found due to the lien claimant by the court;
    (b) The cost of preparing and filing the lien claim, including attorney’s fees, if any;
    (c) The costs of the proceedings;
    (d) Attorney’s fees for representation of the lien claimant in the proceedings; and
    (e) Interest at the rate of seven percent (7%) per annum on the amount found due to the lien claimant and from the date found by the court that the sum was due and payable.

    (2) Proceedings under subsection (1) of this section are entitled to priority of hearing second only to criminal hearings. The plaintiff in the action may serve upon the adverse party a “demand for thirty (30) day setting” in the proper form, and file the demand with the clerk of the court. Upon filing, the clerk of the court shall, before Friday next, vacate a case or cases as necessary and set the lien claimant’s case for hearing, on a day or days certain, to be heard within thirty (30) days of the filing of the “demand for thirty (30) day setting.” Only one (1) such preferential setting need be given by the court, unless the hearing date is vacated without stipulation of counsel for the plaintiff in writing. If the hearing date is vacated without that stipulation, upon service and filing of a “demand for thirty (30) day
    setting,” a new preferential setting must be given.

    45-523 Release of Lien on Real Property by Posting Surety Bond ¾ Motion to Enforce Liability of Surety

    (1) By entering into a bond given pursuant to section 45-519, Idaho Code, the surety submits himself to the jurisdiction of the court in which the bond is filed in the proceeding for release of the lien, and the surety irrevocably appoints the clerk of that court as its agent upon whom any papers affecting its liability on the bond may be served. Its liability may be enforced on motion without the necessity of an independent action. The motion and such notice of motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the surety if his address is known.
    (2) The motion described in subsection (1) of this section must not be instituted until the lapse of thirty (30) days following the giving of notice of entry of judgment in the action against the lien claimant’s debtor, if no notice of appeal from the judgment is filed, nor may the motion be instituted until the lapse of thirty (30) days following the filing of the remittitur from the court of appeals or the supreme court, if an appeal has been taken from the judgment.

    45-524 Release of Lien on Real Property by Posting Surety Bond ¾ Exception to Sufficiency of Surety

    (1) The lien claimant may, within two (2) days after the service of a copy of the petition for release of the lien with a copy of the bond attached thereto pursuant to section 45-520, Idaho Code, file with the clerk of the court in the action a notice excepting to the sufficiency of the surety on the bond, and shall, at the same time and together with that notice, file an affidavit setting forth the grounds and basis of the exceptions to the surety, and shall serve a copy of the notice and a copy of the affidavit upon the attorney or the petitioner on the same date as the date of filing of the notice and affidavit. A hearing must be had upon the justification of the surety at the same time as that set for the hearing on the petition for an order to release the lien.
    (2) If the lien claimant fails to file and serve the notice and affidavit within two (2) days after the service of the petition for release of the lien, he shall be deemed to have waived all objection to the justification.

    45-525 GENERAL CONTRACTORS–RESIDENTIAL PROPERTY- DISCLOSURES

    (1)Legislative intent. This section is intended to protect owners and purchasers of residential real property by requiring that general contractors provide adequate disclosure of potential liens.
    (2) General contractor information. Prior to entering into any contract in an amount exceeding two thousand dollars ($2,000) with a homeowner or residential real property purchaser to construct, alter or repair any improvements on residential real property, or with a residential real property purchaser for the purchase and sale of newly constructed property, the general contractor shall provide to the homeowner a disclosure statement setting forth the information specified in this subsection. The statement shall contain an acknowledgment of receipt to be executed by the homeowner or residential real property purchaser. The general contractor shall retain proof of receipt and shall provide a copy to the homeowner or residential real property purchaser.

    The disclosure shall include the following:

    (a) The homeowner or residential real property purchaser shall have the right at the reasonable expense of the homeowner or residential real property purchaser to require that the general contractor obtain lien waivers from any subcontractors providing services or materials to the general contractor;
    (b) The homeowner or residential real property purchaser shall have the right to receive from the general contractor proof that the general contractor has a general liability insurance policy including completed operations in effect and proof that the general contractor has worker’s compensation insurance for his employees as required by Idaho law;
    (c) The homeowner or residential real property purchaser shall be informed of the opportunity to purchase an extended policy of title insurance covering certain unfiled or unrecorded liens; and
    (d) The homeowner or residential real property purchaser shall have the right to require, at the homeowner’s or residential real property purchaser’s expense, a surety bond in an amount up to the value of the construction project.

    (3) Subcontractor, materialmen and rental equipment information.
    (a) A general contractor shall provide to a prospective residential real property purchaser or homeowner a written disclosure statement, which shall be signed by the general contractor listing the business names, addresses and telephone numbers of all subcontractors, materialmen and rental equipment providers having a direct contractual relationship with the general contractor and who have supplied materials or performed work on the residential property of a value in excess of five hundred dollars ($500). A general contractor is not required under this subsection to disclose subcontractors, materialmen or rental equipment providers not directly hired by or directly working for the general contractor. Such information shall be provided within a reasonable time prior to:

    (i) The closing on any purchase and sales agreement with a prospective residential real property purchaser; or
    (ii) The final payment to the general contractor by a homeowner or residential real property purchaser for construction, alteration, or repair of any improvement of residential real property.

    (b) All subcontractors, materialmen and rental equipment providers listed in the disclosure statement are authorized to disclose balances owed to the prospective real property purchasers or homeowners and to the agents of such purchasers or homeowners.
    (c) The general contractor shall not be liable for any error, inaccuracy or omission of any information delivered pursuant to this section if the error, inaccuracy or omission was not within the personal knowledge of the general contractor.
    (4) Failure to disclose. Failure to provide complete disclosures as required by this section to the homeowner or prospective residential realproperty purchaser shall constitute an unlawful and deceptive act or practice in trade or commerce under the provisions of the Idaho consumer protection act, chapter 6, title 48, Idaho Code.
    (5) Definitions. For purposes of this section:

    (a) “General contractor” means a person who enters into an agreement in excess of two thousand dollars ($2,000) with:

    (i) A homeowner or prospective residential real property purchaser for the construction, alteration or repair of residential real property; or
    (ii) A prospective residential real property purchaser for the purchase and sale of newly constructed property. The term “general contractor” does not include subcontractors, materialmen or rental equipment providers who do not have a direct contractual relationship with the homeowner or residential real property purchaser.

    (b) “Residential real property” shall include owner and nonowner occupied real property consisting of not less than one (1) nor more than four (4) dwelling units.

    (6) This section shall not apply to instances in which a homeowner or the agent of the homeowner initiates the contact with the general contractor for purposes of providing repairs necessary to meet a bona fide emergency of the homeowner or to make necessary repairs to an electrical, plumbing or water system of the homeowner.

  • Illinois, (post date:2013-04-23 22:59:55)

    Illinois Lien Law

    Notice Req.
    Intent to Lien
    Lien Req.
    Prime Contractor

    Not Required

    Not Required

    A lien must be filed 4 months after completing work for gaining priority over the owner and other parties entitled. A lien must be filed 2 years after completing work to win over the owner. Enforcement is due 2 years after completing work to the project.

    Sub Contractor

    A notice is required with 60 days only if working on a single family owner occupied residence</