MISSISSIPPI LEGISLATURE
2014 Regular Session
To: Judiciary A
By: Representative Baker
AN ACT TO BRING FORWARD SECTIONS 85-7-131, 85-7-133, 85-7-137, 85-7-139, 85-7-181, 85-7-183, 85-7-185, 85-7-197, 85-7-199, 85-7-201 AND 11-15-101, MISSISSIPPI CODE OF 1972, WHICH REGARD LIENS AND STOP-NOTICE OF SUCH LIENS FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 85-7-131, Mississippi Code of 1972, is brought forward as follows:
85-7-131. Every house, building, water well or structure of any kind, and any fixed machinery, gearing or other fixture that may or may not be used or connected therewith, railroad embankment, erected, constructed, altered or repaired, and every subdivision of property or subdivided property which required services, designs or construction in designing or laying out of streets or subdividing or construction of streets, sewerage, water or other utilities to be furnished by the said subdivision or by the various owners or holders or creators of said subdivision or subdivided property or individual lot or lots in connection therewith, whether inside of a municipality or outside thereof, shall be liable for the debt contracted and owing, for labor done or materials furnished or equipment rented or leased, or architectural engineers' and surveyors' or contractors' service rendered about the erection, construction, alteration or repairs thereof; and debt for such services or construction shall be a lien thereon. The architects, engineers, surveyors, laborers, rental or lease equipment suppliers and materialmen and/or contractors who rendered services and constructed the improvements shall have a lien therefor. Further, as to oil and gas wells, the operator thereof shall have such a lien upon the interest of each nonoperator owner of an interest in the mineral leasehold estate for such nonoperator's proportionate part of such labor, material and services rendered by the operator or for the operator's account in behalf of each nonoperator in the drilling, completion, recompletion, reworking or other operations of such oil and gas well. If such house, building, structure, or fixture be in a city, town or village, the lien shall extend to and cover the entire lot of land on which it stands and the entire curtilage thereto belonging; or, if not in a city, town or village, the lien shall extend to and cover one (1) acre of land on which the same may stand, if there be so much, to be selected by the holder of the lien. If the structure be a water well, the lien shall extend only to all pumps, pipes, equipment therein and all water well appurtenances. If the structure be an oil or gas well, the lien shall extend to the nonoperator's interest in the mineral estate and the fixtures and equipment in the producing unit assigned such well by the State Oil and Gas Board. If the structure be a railroad or railroad embankment, the lien shall extend to and cover the entire roadbed and right-of-way, depots and other buildings used or connected therewith. If the services of the architect, surveyor, engineer, laborers, materialmen, rental or lease equipment suppliers or of the contractors shall be upon the whole subdivision, the lien shall extend to and cover the entire subdivision; but if a part only of the land is subdivided and laborers', materialmen's, rental or lease equipment suppliers', architects', surveyors' or engineers' services are required and contractors are employed, then the lien shall extend to only that portion of said property upon which the services were required or upon which or in connection with which the work was done or the materials or rental or lease equipment were furnished. Such lien shall take effect as to purchasers or encumbrancers for a valuable consideration without notice thereof, only from the time of commencing suit to enforce the lien, or from the time of filing the contract under which the lien arose, or notice thereof, in the office of the clerk of the chancery court, as hereinafter stated; delivery of material to the job is prima facie evidence of its use therein, and use of water from a water well is prima facie evidence of acceptability of the well. In the case of oil and gas wells, such lien shall take effect as to purchasers or encumbrancers for a valuable consideration without notice thereof, only from the time of filing notice of such lien as provided by Section 85-7-133.
SECTION 2. Section 85-7-133, Mississippi Code of 1972, is brought forward as follows:
85-7-133. Each of the several chancery clerks of this state shall provide in his office, as a part of the land records of his county, a record entitled "Notice of Construction Liens" wherein notices under Section 85-7-131 shall be filed and recorded, and such liens, as provided hereunder, shall not take effect unless and until some notation thereof shall be filed and recorded in said record showing a description of the property involved, the name of the lienor or lienors, the date of filing, if and where suit is filed, and if and where contract is filed or recorded.
SECTION 3. Section 85-7-137, Mississippi Code of 1972, is brought forward as follows:
85-7-137. If such house, building, structure, or fixture be erected, constructed, altered, or repaired at the instance of a tenant, guardian, or other person not the owner of the land, only the house, building, structure, or fixture, and the estate of the tenant or such other person, in the land, shall be subject to such lien, unless the same be done by the written consent of the owner.
SECTION 4. Section 85-7-139, Mississippi Code of 1972, is brought forward as follows:
85-7-139. When the contract by virtue of which the house, building, structure, fixture, railroad, or railroad embankment may be erected, constructed, altered, or repaired, shall be in writing, it may be acknowledged and recorded as deeds and other instruments. If the contract relate to a house, building, structure, or fixture, it shall be filed for record in the office of the clerk of the chancery court of the county in which the land on which it stands is situated; if the contract relate to a railroad or railroad embankment, it shall be filed for record in the office of the clerk of the chancery court of each county in which the work is to be done; if the contract relate to a boat or water craft, it shall be filed for record in the office of the clerk of the chancery court of the county in which the work is done.
SECTION 5. Section 85-7-181, Mississippi Code of 1972, is brought forward as follows:
85-7-181. When any contractor or master workman shall not pay any person who may have furnished materials, labor or rental or lease equipment used in the erection, construction, alteration, or repair of any house, building, structure, fixture, boat, water craft, railroad, railroad embankment, the amount due by him to any subcontractor therein, or the wages of any journeyman, rental or lease equipment supplier or laborer employed by him therein, any such person, subcontractor, journeyman, laborer or rental or lease equipment supplier may give notice in writing to the owner thereof of the amount due him and claim the benefit of this section; and, thereupon the amount that may be due upon the date of the service of such notice by such owner to the contractor or master workman, shall be bound in the hands of such owner for the payment in full, or if insufficient then pro rata, of all sums due such person, subcontractor, journeyman, rental or lease equipment supplier or laborer who might lawfully have given notice in writing to the owner hereunder, and if after such notice the contractor or master workman shall bring suit against the owner, the latter may pay into court the amount due on the contract; and thereupon all persons entitled hereunder, so far as known, shall be made parties and summoned into court to protect their rights, contest the demands of such contractor or master workman and other claimants; and the court shall cause an issue to be made up and tried and direct the payment of the amount found due in accordance with the provisions hereof; or in case any person entitled to the benefits hereof shall sue the contractor or master workman, such person so suing shall make the owner and all other persons interested, either as contractors, master workmen, subcontractors, laborers, journeymen, rental or lease equipment suppliers or materialmen, so far as known, parties to the suit (and any such party not made a party in any suit hereunder authorized may intervene by petition), and, thereupon the owner may pay into the court the amount admitted to be due on the contract or sufficient to pay the sums claimed, and the court shall cause an issue to be made up and award the same to the person lawfully entitled; in either case the owner shall not be liable for costs; but if the owner, when sued, with the contractor or master workman, shall deny any indebtedness sufficient to satisfy the sums claimed and all costs, the court shall, at the instance of any party interested, cause an issue to be made up to ascertain the true amount of such indebtedness and shall give judgment and award costs, and reasonable attorney's fees, according to the rights of the several parties in accordance herewith. In case judgment shall be given against such owner, such judgment shall be a lien, from the date of the original notice, and shall be enforced as other liens provided in this chapter. The owner shall not be liable in any event for a greater amount than the amount contracted for with the contractor.
The provisions of this section allowing the award of attorney's fees shall only apply to actions the cause of which accrued on or after July 1, 1987.
SECTION 6. Section 85-7-183, Mississippi Code of 1972, is brought forward as follows:
85-7-183. No contractor or master workman except as hereinafter provided, shall have the right to assign, transfer, or otherwise dispose of in any way, the contract or the proceeds thereof, to the detriment or prejudice of the subcontractors, journeymen, laborers, and materialmen as declared hereinbefore and all such assignments, transfers, or dispositions shall be subordinate to the said rights of the subcontractors, journeymen, laborers and materialmen, as well as the owner. Provided, however, that this section shall not apply to any contract or agreement where the contractor or the master workman shall enter into a solvent bond conditioned as provided for in the following section.
SECTION 7. Section 85-7-185, Mississippi Code of 1972, is brought forward as follows:
85-7-185. When any contractor or subcontractor entering into a formal contract with any person, firm or corporation, for the construction of any building or work or the doing of any repairs, shall enter into a bond with such person, firm or corporation guaranteeing the faithful performance of such contract and containing such provisions and penalties as the parties thereto may insert therein, such bond shall also be subject to the additional obligations that such contractor or subcontractor shall promptly make payments to all persons furnishing labor or material or rental or lease equipment under said contract; and in the event such bond does not contain any such provisions for the payment of the claims of persons furnishing labor or material or rental or lease equipment under said contract, such bond shall nevertheless inure to the benefit of such person furnishing labor or material under said contract, the same as if such stipulation had been incorporated in said bond, and any such person who has furnished labor or materials or rental or lease equipment used therein for which payment has not been made shall have the right to intervene and be made a party to any action instituted on such bond, and to have his rights adjudicated in such action and judgment rendered thereon, subject, however, to the priority of the rights or claim for damages or otherwise, of the obligee. The bond herein provided for may be made by any surety company authorized to do business in the State of Mississippi. A subcontractor supplying labor or materials for the prosecution of work shall, upon request to the owner or contractor, be furnished with a true and correct copy of the bond.
SECTION 8. Section 85-7-197, Mississippi Code of 1972, is brought forward as follows:
85-7-197. Any laborer, materialman or architect entitled, or who may become entitled, to a lien under this chapter, or to give hereunder a stop notice to any owner, shall have the right to record his claim in the lis pendens record upon compliance with the following requirements, to wit: (1) He shall reduce his claim for the lien to writing which writing shall show the basis of his claim and all of the parties thereto or to be affected by the lien, and such writing shall contain a description of the property sought to be bound, and it shall also set forth the rights claimed in the property to be bound, and the person claiming the lien shall make an affidavit to the writing. (2) He shall notify the owner in person or by certified mail, return receipt requested, and he shall attach to the original of the said notice an affidavit that the said notice has been given and the date and manner thereof. Thereupon said notice may be delivered to the clerk of the chancery court, who shall record the claim in the lis pendens record; and if in due form it shall be notice both of the lien and to the owner and all other persons interested, all of whom shall thereupon be bound thereby. Provided, however, that the aggregate amount of all the claims herein provided for shall not be a lien upon or bind the property for a greater amount than the original contract price or the amount of the owner's liability thereunder at the time the notice is filed, and in event said lien shall exceed the sum of the contract price or the balance due thereunder then they shall be paid pro rata; and, provided further, that no notice hereunder shall operate to extend the time during which the party entitled may bring an action on the claim or to enforce the right with reference to which his claim is filed, and when such rights shall cease, the notice hereunder given shall be without effect.
SECTION 9. Section 85-7-199, Mississippi Code of 1972, is brought forward as follows:
85-7-199. When a lien is paid or extinguished the party executing a lis pendens notice shall enter satisfaction, or cause the same to be entered upon the lis pendens record, and all the provisions of law respecting the entry of satisfaction on the records of deeds of trust and mortgages shall apply herein.
SECTION 10. Section 85-7-201, Mississippi Code of 1972, is brought forward as follows:
85-7-201. Any person who shall falsely and knowingly file the notice mentioned in Section 85-7-197 without just cause shall forfeit to every party injured thereby the full amount for which such claim was filed, to be recovered in an action by any party so injured at any time within one (1) year from such filing; and any person whose rights may be adversely affected may apply, upon two (2) days' notice, to the chancery court or to the chancellor in vacation, or to the county court, if within its jurisdiction, to expunge; whereupon proceedings with reference thereto shall be forthwith had, and should it be found that the claim was improperly filed rectification shall at once be made thereof.
SECTION 11. Section 11-15-101, Mississippi Code of 1972, is brought forward as follows:
11-15-101. (1) Sections 11-15-101 through 11-15-143 apply only to agreements and provisions for arbitration made subsequent to July 1, 1981.
(2) Sections 11-15-101 through 11-15-143 shall apply to any agreement for the planning, design, engineering, construction, erection, repair or alteration of any building, structure, fixture, road, highway, utility or any part thereof, and to any purchase by, or supply to, any contractor or subcontractor qualified to do business in this state of any materials to be used in the planning, design, engineering, construction, erection, repair or alteration of any building, structure, fixture, road, highway, utility or any part thereof; provided, however, that nothing contained in Sections 11-15-101 through 11-15-143 shall be construed as amending or otherwise affecting the provisions of Sections 65-2-1 through 65-2-17, Section 65-1-89, Section 65-1-91, and Section 77-9-387, Mississippi Code of 1972.
(3) Sections 11-15-101 through 11-15-143 shall also apply to any agreement for architectural, engineering, surveying, planning and related professional services performed in connection with any of the agreements enumerated in subsection (2) of this section.
(4) Sections 11-15-101 through 11-15-143 shall have no effect on the establishment or enforcement of any lien provided for in Title 85, Chapter 7, Mississippi Code of 1972.
SECTION 12. This act shall take effect and be in force from and after July 1, 2014, and shall stand repealed June 30, 2014.