FIRST REGULAR SESSION
95TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE SCHOELLER.
1698L.01I D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 429.005, 429.015, 429.210, and 429.230, RSMo, and to enact in lieu thereof five 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Section A. Sections 429.005, 429.015, 429.210, and 429.230, RSMo, are repealed and five new sections enacted in lieu thereof, to be known as sections 429.005, 429.015, 429.210, 429.230, and 429.231, to read as follows: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.
3. 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, subordinate, impair, or otherwise adversely affect any right to enforce or claim any lien authorized under this chapter shall be enforceable unless it is under a waiver and release as prescribed in this section;
(2) 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, electronic transfer of funds, or other form of payment from .................. (insert name of person making payment or transfer of funds) in the sum of $........... (insert amount) payable to ............. (insert name of person receiving payment or funds) and when the payment or transfer of funds has become final, 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), but only to the extent of the payment received. 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 work, labor, services, equipment, and/or material furnished to ............. (insert name of customer) on the job of ................. (insert name of owner) 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 extent of the payment received.
Dated: ............................
(Company name)
By: ................................ (signature)
Title: .............................
Each conditional waiver shall contain the following language in a type at least as large 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, electronic transfer of funds, or other form of payment from .................. (insert name of person making payment or transfer of funds) in the sum of $........... (insert amount) payable to ............. (insert name of person receiving payment or funds) and when the payment or transfer of funds has become final, 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 work, labor, services, equipment, and/or material furnished or provided to ................ (insert name of customer) 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 a type at least as large 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.
4. This section shall become effective January 1, 2010.
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. 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] three acres, 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] three acres. 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.
429.210. 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 therefor in any sum not exceeding the amount claimed in the demand filed with the lien, [together with interest and costs,] and shall include interest, costs, and reasonable attorneys' fees to be levied against the property charged with the lien, although the creditor may have unintentionally failed to enter in [his] the creditor's account filed the full amount of credits to which the debtor may be entitled.
429.230. When the debtor has not been served with summons according to law, and has not appeared, but has been lawfully notified by publication, the judgment, if for the plaintiff, shall be that [he] the plaintiff recover the amount of the indebtedness found to be due, [and] interest, costs of suit, and reasonable attorneys' fees, to be levied [of] against the property charged with the lien therefor, which said property shall be correctly described in said judgment.
429.231. A lien claimant's award of reasonable attorneys' fees shall be levied against the property charged with the lien subject to the following terms:
(1) If the lien claimant is an original contractor whose contract is with the owner of the property, no additional notice to the owner is required;
(2) If the lien claimant is a material supplier, subcontractor, or sub-subcontractor at any tier, no additional notice is required unless the owner of the property shall post at the jobsite a notice substantially in the following form:
Notice From Owner to Subcontractors and Suppliers
Date Posted: ...............
You are hereby notified that .......................................... is the owner of the property upon which the project is being built. The owner's name, address, telephone number, fax number, and e-mail address are as follows:
Owner: .................................................
Street Address (Do not use post office box): ..................................
Telephone No.: ....................................
Facsimile No.: ....................................
E-mail Address: .................................
The owner's agent or original contractor is as follows:
Name: .................................................
Street Address (Do not use post office box): ...................................
Telephone No.: ..................................
Facsimile No.: ....................................
E-mail Address: ................................
The owner's architect is as follows:
Name: .................................................
Street Address (Do not use post office box): ................................
Telephone No.: ..................................
Facsimile No.: ....................................
E-mail Address: ................................
To be effective, the above shall completely and accurately identify one or more of the above parties, at least one of whom shall be located within the state of Missouri, and shall be conspicuously posted in one or more locations at the jobsite where the project is being built so that it is visible and accessible to all suppliers and subcontractors at any tier who deliver materials to, or provide or furnish labor, work, or services at the jobsite. The notice shall be posted no later than the first day upon which any materials are delivered or any work is performed at the jobsite. The notice shall remain continuously posted so long as materials are being delivered to, or work is being performed at the jobsite. The notice may be posted alongside the building permit, the main entrance to the jobsite used by suppliers and subcontractors, or the location where deliveries of materials and supplies are made to the jobsite so long as the notice is posted so that it is conspicuous, visible, and accessible to both subcontractors and suppliers. The owner of the project shall not be required to post a notice, but failure to do so shall relieve suppliers, subcontractors, and sub-subcontractors at any tier from giving the notice to the owner under subdivision (3) of this section;
(3) On projects where the owner has substantially complied with the requirements in subdivision (2) of this section, a lien claimant who is a material supplier, subcontractor, or sub-subcontractor at any tier shall, in order to have payment of its award of attorneys' fees secured by the mechanic's lien levied against the owner's property, give notice no later than twenty-five days after first delivering material to the jobsite or within twenty-five days after first performing labor at the jobsite, to the owner of the property or to the owner's agent or architect. The notice shall be substantially in the following form:Notice to Owner
You are hereby notified that the undersigned is furnishing and/or providing materials and/or labor for the project.
Owner: ........................................
Project: .......................................
Type of Materials and/or Labor: .........................................
Claimant's Name: ......................
Address: ......................................
Telephone No.: ...........................
Facsimile No.: ............................
Name of Person/Entity Through Whom Claimant is Furnishing/Providing Labor/Material: ...........................................
The notice shall be deemed to have been given timely even if given more than twenty-five days after the first delivery of material or performing labor at the jobsite if the notice is given to the owner or the owner's agent or the owner's original contractor or architect before the owner has made payment to the original contractor for the labor or material furnished or provided by the lien claimant. The notice shall be deemed properly given upon timely receipt of the notice by the owner, agent, original contractor, or architect. If the notice is given by certified mail, return receipt requested, it shall be deemed to have been given and received timely if mailed to one or more of the addresses disclosed in the owner's notice described in subdivision (2) of this section within the period prescribed in this subdivision. Nothing contained in this subdivision shall be construed to eliminate the need for a lien claimant, other than an original contractor, to comply with the notice requirements of section 429.100;
(4) If the owner of the project posts a notice as described in subdivision (2) of this section, the owner shall contemporaneously furnish a copy of the said notice to its original contractor. The original contractor shall immediately furnish a copy of the owner's notice to any supplier, subcontractor, or sub-subcontractor at any tier who requests the notice.
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