Drafting a mechanic’s lien and ?notice of intent? (?429.100) involves crucial steps that can be harmful to your case if overlooked. Whether you forgot to verify the ?just and true account? (?429.080) of the amount due, or are unsure of the proper county for filing your lien, you can avoid these service errors by taking the time to learn the following steps involved in filing and drafting a mechanic’s lien in Missouri.
Most importantly, the lien must be filed within six months from the last date of delivery of material or performing labor. Merely performing warranty work or punchlist work may not be sufficient to qualify as the ?last date of work.? Therefore, be wary of calculating the last date of work from a date after the contracted work was substantially complete.
If you are not under direct contract with the project owner, then you must serve a notice of intent to file a lien on the owner of the project at least ten days prior to filing the lien. You cannot determine the owner or property description effectively without a title report. Therefore, you need to obtain a title report well in advance of the six-month deadline so that you can properly prepare the notice. My suggestion is to order an Ownership and Encumbrances report. These generally cost around $200.00 and can be obtained in less than a week from a good title company.
The notice of intent must contain four things: amount owed, from whom the amount is due, a property description, and the name of the claimant (RSMo. 429.100). The notice must be served on the owner of the property. The service on the owner is a critical element of the mechanic’s lien case. Service should be accomplished by personal service and the completed affidavit of service should be included in the legal file for the case.
When drafting the mechanic’s lien and notice of intent, be sure to get the name of the owner of the property correct. If your client had a direct contract with the owner, then check the name of the owner on the contract itself. If the name on the title report is different from the name on the prime contract, assess the impact of this issue on your lien filing and consider naming the property owner with a ?doing business as? designation as to the name on the prime contract. Finally, review the Missouri Secretary of State website (or other state’s websites) to verify that the entities in the title report and the prime contract actually exist and are known by the names in those documents.
One of the most litigated issues with Missouri mechanic’s liens is the failure to include a ?just and true account? of the amount due. In the case of a subcontractor, this means including information with sufficient detail to show itemized labor costs (hours of labor performed each day and rate) plus a complete description of materials, including quantity and cost (i.e. 16 qty. ?? x 4? x 8? OSB Square Edge @ 10.00 each = $160.00).
Many contractors will balk at providing this information as there is a concern that competitors will use this information to compete against them in the market place. My advice is to be very conservative in drafting a lien and supply detailed labor and material pricing information. What you do not want is to spend a lot in litigating a mechanic’s lien only to find out it was defective with the filing of the lien statement.
There are numerous traps for the unwary in Missouri’s Mechanic’s Lien Statutes and caselaw. Knowing these traps and being prepared are only half the battle. Assuming you have a valid mechanic’s lien, you still need to litigate your case!