SECOND REGULAR SESSION
94TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE WASSON.
Read 1st time February 20, 2008 and copies ordered printed.
D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 429.005, 429.010, and 429.015, RSMo, and to enact in lieu thereof three new sections relating to statutory liens against real estate.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 429.005, 429.010, and 429.015, RSMo, are repealed and three new sections enacted in lieu thereof, to be known as sections 429.005, 429.010, and 429.015, to read as follows:
429.005. 1. An agreement by an original contractor, subcontractor, supplier or laborer to waive any right to enforce or claim any lien authorized under this chapter, where the agreement is in anticipation of and in consideration for the awarding of a contract or subcontract to perform work or supply materials for an improvement upon real property, whether expressly stated or implied, is against public policy and shall be unenforceable. The provisions of this section shall not prohibit subordination or release of a lien authorized under this chapter.
2. Nothing contained in this section shall be construed to prohibit contractual provisions requiring lien waivers as a condition for payment. All lien waivers whether provided for in an agreement or otherwise shall be subject to the following terms:
(1) No oral or written statement purporting to waive, release, impair, or otherwise adversely affect any right to enforce or claim any lien authorized under this chapter shall be enforceable or creates any estoppel or impairment of such claim unless it is under a waiver and release prescribed in this section or the claimant actually received payment for such waiver, release, impairment, or adverse affect in which case the waiver, release, impairment, or adverse affect shall be limited to the extent of the amount of the payment received;
(2) 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 made in settlement makes a specific reference to the intent to waive or release lien rights under this chapter shall not be affected by this section;
(3) The waiver and release given by any claimant under this section shall be null, void, and unenforceable as against public policy unless it follows substantially the following forms in the following circumstances:
(a) If 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 has not, in fact, been paid in exchange for the waiver and release or is given a single payee check or joint payee check in exchange for the waiver and release, the waiver and release shall follow substantially the following form:
CONDITIONAL WAIVER AND RELEASE UPON PROGRESS PAYMENT
Upon receipt by the undersigned of a check from (insert maker of check) in the sum of (insert amount) payable to (insert who check was payable to) and when the check has been properly endorsed and has been paid by the bank upon which it is drawn, this document shall become effective to release any mechanic's lien right the undersigned has on the job of (insert owner's name) located at (insert job description), but only to the following extent. This release covers a progress payment for labor, services, equipment, or materials furnished to (insert customer's name) for the payment period ending on (insert date), hereafter referred to as the release date, only and does not cover any retentions retained before or after the release date; extras or additional work furnished or provided before the release date for which payment has not been received; extras, additional work, or any items or work provided or furnished after the release date. Rights based upon work performed or items furnished or provided before the release date under a written change order which has been fully executed by the parties prior to the release date are covered by this release unless specifically reserved by the claimant in this release. This release of any mechanic's lien right shall not otherwise affect the contract rights, including rights between parties to the contract based upon rescission, impact, abandonment, or breach of contract, or the right of the undersigned to recover compensation for furnished labor, services, equipment, or material covered by this release if those furnished labor, services, equipment, or material were not compensated by the progress payment. Before any recipient of this document relies on it, such party should verify evidence of payment to the undersigned.
Dated__________.
COMPANY NAME
By:___________
(Signature)
Title:________
(b) If the claimant is required to execute a waiver and release in exchange for, or in order to induce payment of, a progress payment and the claimant asserts in the waiver it has, in fact, been paid the progress payment, the waiver and release shall follow substantially the following form:
UNCONDITIONAL WAIVER AND RELEASE UPON PROGRESS PAYMENT
The undersigned has been paid and has received a progress payment in the sum of (insert amount) for labor, services, equipment, or material furnished to (insert customer's name) on the job (insert owner's name) located at (insert job description) and does hereby release any mechanic's lien right that the undersigned has on the above-referenced job but only to the following extent. This release covers progress payment for labor, services, equipment, or materials furnished to (insert customer's name) for the payment period ending on (insert date), hereafter referred to as the release date, only and does not cover any retentions retained before or after the release date; extras or additional work furnished or provided before the release date for which payment has not been received; extras, additional work, or any items or work furnished or provided after the release date. Rights based upon work performed or items furnished or provided before the release date under a written change order which has been fully executed by the parties prior to the release date are covered by this release unless specifically reserved by the claimant in this release. This release of any mechanic's lien right shall not otherwise affect the contract rights, including rights between parties to the contract based upon rescission, impact, abandonment, or breach of the contract, or the right of the undersigned to recover compensation for furnished labor, services, equipment, or material covered by this release if those furnished labor, services, equipment, or material covered were not compensated by the progress payment.
Dated________.
COMPANY NAME
By:___________
(Signature)
Title:________
Each unconditional waiver in this provision shall contain the following language in at least as large type as the largest type otherwise on the document: "NOTICE: THIS DOCUMENT WAIVES LIEN 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.";
(c) If the claimant is required to execute a waiver and release in exchange for, or in order to induce the payment of, a final payment and the claimant has not, in fact, been paid in exchange for the waiver and release or is given a single payee check or joint payee check in exchange for the waiver and release, the waiver and release shall follow substantially the following form:
CONDITIONAL WAIVER AND RELEASE UPON FINAL PAYMENT
Upon receipt by the undersigned of a check from (insert maker of check) in the sum of (insert amount of check) payable to (insert who check was payable to) and when the check has been properly endorsed and has been paid by the bank upon which it is drawn, this document shall become effective to release any mechanic's lien right the undersigned has on the job of (insert name of owner) located at (insert job description). This release covers the final payment to the undersigned for all labor, services, equipment, or material furnished or provided on the job, except for disputed claims in the amount of (insert amount). Before any recipient of this document relies on it, the party should verify evidence of payment to the undersigned.
Dated_________.
COMPANY NAME
By:____________
(Signature)
Title:_________
(d) If 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 it has, in fact, been paid the final payment, the waiver and release shall follow substantially the following form:
UNCONDITIONAL WAIVER AND RELEASE UPON FINAL PAYMENT
The undersigned has been paid in full for all labor, services, equipment, or material furnished or provided to (insert customer's name) on the job of (insert name of owner) located at (insert job description) and does hereby waive and release any right to a mechanic's lien on the job, except for disputed claims in the amount of (insert amount).
Dated:________.
COMPANY NAME
By:____________
(Signature)
Title:_________
Each unconditional waiver in this provision shall contain the following language in at least as large type as the largest type otherwise on the document: "NOTICE: THIS DOCUMENT WAIVES LIEN 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.".
429.010. 1. Any person who shall do or perform any work or labor upon land, rent any machinery or equipment, or use any rental machinery or equipment, or furnish any material, fixtures, engine, boiler or machinery for any building, erection or improvements upon land, or for repairing, grading, excavating, or filling of the same, or furnish and plant trees, shrubs, bushes or other plants or provides any type of landscaping goods or services or who installs outdoor irrigation systems under or by virtue of any contract with the owner or proprietor thereof, or his or her agent, trustee, contractor or subcontractor, or without a contract if ordered by a city, town, village or county having a charter form of government to abate the conditions that caused a structure on that property to be deemed a dangerous building under local ordinances pursuant to section 67.410, RSMo, upon complying with the provisions of sections 429.010 to 429.340, shall have for his or her work or labor done, machinery or equipment rented or materials, fixtures, engine, boiler, machinery, trees, shrubs, bushes or other plants furnished, or any type of landscaping goods or services provided, a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of three acres; or if such building, erection or improvements be upon any lot of land in any town, city or village, or if such building, erection or improvements be for manufacturing, industrial or commercial purposes and not within any city, town or village, then such lien shall be upon such building, erection or improvements, and the lot, tract or parcel of land upon which the same are situated, and not limited to the extent of three acres, to secure the payment of such work or labor done, machinery or equipment rented, or materials, fixtures, engine, boiler, machinery, trees, shrubs, bushes or other plants or any type of landscaping goods or services furnished, or outdoor irrigation systems installed and reasonable attorney's fees and costs to collect the same; except that if such building, erection or improvements be not within the limits of any city, town or village, then such lien shall be also upon the land to the extent necessary to provide a roadway for ingress to and egress from the lot, tract or parcel of land upon which such building, erection or improvements are situated, not to exceed forty feet in width, to the nearest public road or highway. Such lien shall be enforceable only against the property of the original purchaser of such plants unless the lien is filed against the property prior to the conveyance of such property to a third person. For claims involving the rental of machinery or equipment to others who use the rental machinery or equipment, the lien shall be for the reasonable rental value of the machinery or equipment during the period of actual use and any periods of nonuse taken into account in the rental contract, while the machinery or equipment is on the property in question.
2. There shall be no lien involving the rental of machinery or equipment unless:
(1) The improvements are made on commercial property;
(2) The amount of the claim exceeds five thousand dollars; and
(3) The party claiming the lien provides written notice within [five] forty-five business days of the commencement of the use of the rental machinery or equipment to the property owner that rental machinery or equipment is being used upon their property. Such notice shall identify the name of the entity that rented the machinery or equipment, the machinery or equipment being rented, and the rental rate.
Nothing contained in this subsection shall apply to persons who use rented machinery or equipment in performing the work or labor described in subsection 1 of this section.
429.015. 1. Every registered architect or corporation registered to practice architecture, every registered professional engineer or corporation registered to practice professional engineering, every registered landscape architect or corporation registered to practice landscape architecture, and every registered land surveyor or corporation registered to practice land surveying, who does any landscape architectural, architectural, engineering or land surveying work upon or performs any landscape architectural, architectural, engineering or land surveying service directly connected with the erection or repair of any building or other improvement upon land under or by virtue of any contract with the owner or lessee thereof, or such owner's or lessee's agent, trustee, contractor or subcontractor, or without a contract if ordered by a city, town, village or county having a charter form of government to abate the conditions that caused a structure on that property to be deemed a dangerous building under local ordinances pursuant to section 67.410, RSMo, upon complying with the provisions of this chapter, shall have for such person's landscape architectural, architectural, engineering or land surveying work or service so done or performed, a lien upon the building or other improvements and upon the land belonging to the owner or lessee on which the building or improvements are situated, to the extent of [one acre] three acres. If the building or other improvement is upon any lot of land in any town, city or village, then the lien shall be upon such building or other improvements, and the lot or land upon which the building or other improvements are situated, to secure the payment for the landscape architectural, architectural, engineering or land surveying work or service so done or performed and reasonable attorney's fees and costs to collect the same. For purposes of this section, a corporation engaged in the practice of architecture, engineering, landscape architecture, or land surveying, shall be deemed to be registered if the corporation itself is registered under the laws of this state to practice architecture, engineering or land surveying.
2. Every mechanic or other person who shall do or perform any work or labor upon or furnish any material or machinery for the digging of a well to obtain water under or by virtue of any contract with the owner or lessee thereof, or such owner's or lessee's agent, trustee, contractor or subcontractor, upon complying with the provisions of sections 429.010 to 429.340 shall have for such person's work or labor done, or materials or machinery furnished, a lien upon the land belonging to such owner or lessee on which the same are situated, to the extent of one acre, to secure the payment of such work or labor done, or materials or machinery furnished as aforesaid.
3. Every mechanic or other person who shall do or perform any work or labor upon, or furnish any material, fixtures, engine, boiler or machinery, for the purpose of demolishing or razing a building or structure under or by virtue of any contract with the owner or lessee thereof, or such owner's or lessee's agent, trustee, contractor or subcontractor, or without a contract if ordered by a city, town, village or county having a charter form of government to abate the conditions that caused a structure on that property to be deemed a dangerous building under local ordinances pursuant to section 67.410, RSMo, upon complying with the provisions of sections 429.010 to 429.340, shall have for such person's work or labor done, or materials, fixtures, engine, boiler or machinery furnished, a lien upon the land belonging to such owner or lessee on which the same are situated, to the extent of one acre. If the building or buildings to be demolished or razed are upon any lot of land in any town, city or village, then the lien shall be upon the lot or lots or land upon which the building or other improvements are situated, to secure the payment for the labor and materials performed.
4. The provisions of sections 429.030 to 429.060 and sections 429.080 to 429.430 applicable to liens of mechanics and other persons shall apply to and govern the procedure with respect to the liens provided for in subsections 1, 2 and 3 of this section.
5. Any design professional or corporation authorized to have lien rights under subsection 1 of this section shall have a lien upon the building or other improvement and upon the land, whether or not actual construction of the planned work or improvement has commenced if:
(1) The owner or lessee thereof, or such owner's or lessee's agent or trustee, contracted for such professional services directly with the design professional or corporation asserting the lien; and
(2) The owner or lessee is the owner or lessee of such real property either at the time the contract is made or at the time the lien is filed.
6. Priority between a design professional or corporation lien claimant and any other mechanic's lien claimant shall be determined pursuant to the provisions of section 429.260 on a pro rata basis.
7. In any civil action, the owner or lessee may assert defenses which include that the actual construction of the planned work or improvement has not been performed in compliance with the professional services contract, is impracticable or is economically infeasible.
8. The agreement is in writing.
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