To amend chapter 429, RSMo, by adding thereto =
one new=20
section relating to mechanic's liens, with penalty =
provisions.
Be it enacted by the General Assembly of the =
State of=20
Missouri, as follows:
&=
nbsp; Section=20
A. Chapter 429, RSMo, is amended by adding =
thereto one=20
new section, to be known as section 429.016, to read as=20
follows:
&=
nbsp; 429.016. 1. The=20
provisions of this section shall only apply to mechanic's liens asserted =
against=20
residential real property, other than mechanic's liens for the repair,=20
remodeling, or addition to owner-occupied residential property of four =
units or=20
less which are governed by section 429.013 and other applicable sections =
of this=20
chapter.
&=
nbsp; 2. As=20
used in this section, the term "residential real property" means any =
parcel of=20
real estate, improved or unimproved, that is intended to be used or is =
used for=20
the construction of residential structures and related improvements =
which=20
support the residential use of the land where such residential =
structures are=20
intended, upon completion, either to be occupied or sold by the current=20
owner. Such residential structures shall include =
any=20
residential dwelling of four units or less, whether or not a unit is =
occupied by=20
an owner and shall also include any structures consisting solely of =
residential=20
condominiums, townhouses or cooperatives regardless of the number of=20
units. The definition of "residential real =
estate" shall=20
exclude any mixed use or planned unit developments except to the extent =
that any=20
residential uses of such developments are, or will be, located on =
separate,=20
identifiable parcels from the non-residential uses and then only as to =
those=20
residential uses. Residential real property =
shall also=20
include any streets, sidewalks, utility services, improved common areas, =
or=20
other facilities which are constructed within the defined residential =
use=20
structures or located on or within the separate and identifiable parcels =
identified as for residential use.
&=
nbsp; 3. Any=20
person or entity, hereinafter referred to as claimant, who seeks to =
retain the=20
right to assert a mechanic's lien against residential real property, =
hereinafter=20
referred to as property, shall record a notice of rights in the office =
of the=20
recorder of deeds for the county in which the property is=20
located. Such recorded notice of rights shall =
only apply=20
to any work, labor, or materials performed or used to, on, or for the =
property=20
in the future or in the immediately preceding sixty-day period from the =
date of=20
such recording.
&=
nbsp; 4. Notwithstanding=20
subsection 3 of this section, a claimant that is accurately identified =
in any=20
previously recorded notice of rights recorded as to the property is =
relieved of=20
its duty to record a notice of rights.
&=
nbsp; 5. If=20
the last day to record the notice of rights falls on a Saturday, Sunday, =
or=20
legal holiday recognized by the state of Missouri, the notice of rights =
shall be=20
recorded not later than the next day that the office of the recorder of =
deeds is=20
open for business.
&=
nbsp; 6. Any=20
claimant that fails to record such notice of rights shall be deemed to =
waive and=20
forfeit any right to assert a mechanic's lien against such=20
property. Despite any such waiver and forfeiture =
of=20
mechanic's lien rights, the claimant shall retain all other rights and =
remedies=20
allowed by law to collect payment for its work, labor, and=20
materials.
&=
nbsp; 7. Notwithstanding=20
any other provision of this section, a notice of rights recorded after =
the=20
owner's conveyance of the property to a bona fide purchaser for value =
shall not=20
be effective to preserve the claimant's mechanic's lien rights to the=20
property.
&=
nbsp; 8. The=20
notice of rights shall comply with section 59.310 and be on a form =
substantially=20
as follows:
&=
nbsp; NOTICE=20
OF RIGHTS
Date: The =
date of the=20
document.
Owner: =
Identify Property=20
owner, as "Grantor" by correct name.
Claimant: =
Identify=20
Claimant, as "Grantee" by correct name, current address, contact =
persons, and=20
current telephone number.
Property: =
The legal=20
description of the property.
Person =
Contracting with=20
Claimant for Work: Identify person or entity contracting with Claimant =
by=20
correct name, current address, and current telephone=20
number.
Persons =
performing work=20
for or supplying materials to Claimant: Claimant may, but is not =
obligated to,=20
identify any persons or entities which have or will be performing work =
or=20
supplying materials on behalf of Claimant for the=20
Property. Said persons or entities must be =
identified by=20
correct legal name, address, and current telephone=20
number.
A recorded =
notice=20
correctly identifies a person or entity so long as the identifying =
information=20
in the notice is neither deceptively similar to another person or entity =
reasonably likely to provide labor, materials, supplies, or equipment =
for the=20
improvement of property nor so deficient in information as to make it=20
unreasonably difficult to identify such person or=20
entity. The form shall be signed by a person =
authorized=20
to execute the form on behalf of the claimant, and such signature shall =
be=20
notarized. The name of the person signing the =
form shall=20
be printed legibly or typed immediately below the=20
signature.
&=
nbsp; 9. The=20
notice of rights shall be recorded by the claimant in the office of the =
recorder=20
of deeds of the county in which the property is=20
located.
&=
nbsp; 10. The=20
recorder of deeds shall record such notice of rights in the land records =
and=20
index notice of rights such that owners shall be deemed grantors and =
claimants=20
shall be deemed grantees, and the grantor's signature shall not be =
required for=20
recording.
&=
nbsp; 11. (1) The=20
owner of residential real property upon which a claimant is to perform =
or=20
provide work, labor, or materials, or such owner's designated agent, =
shall=20
provide any claimant with the name of the current record property owner =
and the=20
deed, which deed shall include the legal description of the subject =
property, by=20
which such owner of record obtained the subject property, within five =
calendar=20
days after the owner, or its designated agent, receives a written =
request for=20
the same from any claimant. The claimant may =
further=20
request a copy of a survey of the subject property, a copy of the =
subdivision or=20
other plat of the subject property, or such other information, document, =
or=20
instrument, as may allow the claimant to identify the subject property =
with=20
reasonable certainty, but the owner or its agent shall not be required =
to=20
provide the same. The owner, or its designated =
agent,=20
shall not be liable to any claimant, or other person, for any error, =
omission,=20
or inaccuracy in the content of the deed described above which is =
provided and=20
disclosed by the owner, or its designated agent, except as otherwise =
expressly=20
provided in this section.
&=
nbsp; (2) If=20
any owner, or its designated agent, fails to comply with the =
requirements of=20
this section, the requesting claimant shall be entitled to receive, as =
its sole=20
and exclusive remedy for failure to comply with this section, the =
claimant's=20
actual and reasonable costs, excluding attorney fees, to obtain a legal=20
description of the subject property necessary for the claimant to record =
its=20
notice of rights. The costs described in this =
section=20
shall be lienable expenses.
&=
nbsp; (3) If=20
a claimant receives from the owner, or its designated agent, a copy of =
the deed=20
by which the owner acquired title to the subject residential real =
property as=20
contemplated in this section and the claimant relies in good faith upon =
the=20
legal description contained in such deed and includes such legal =
description in=20
a notice of rights as required in this section, and the claimant's =
notice of=20
rights otherwise complies with the requirements of this section, then =
any such=20
claimant's notice of rights shall be deemed to comply with the =
requirements of=20
this section, and such claimant's right to assert a mechanic's lien as =
to the=20
subject residential real property shall be retained even if subsequently =
it is=20
determined that such legal description contained in such deed is in =
error or=20
inaccurate as to the subject residential real =
property.
&=
nbsp; 12. Each=20
notice of rights or renewal notice of rights as hereafter provided shall =
only be=20
valid for, and shall automatically expire, one year after recording, =
unless the=20
claimant shall record a renewal of notice of rights with the recorder of =
deeds=20
of the county in which the property is located prior to the expiration =
of any=20
previously recorded notice of rights or renewal notice of rights, and =
any=20
failure to record a renewal of notice of rights prior to the expiration =
of any=20
previously recorded notice will constitute a waiver of lien rights as to =
the=20
property. If a claimant fails to file its =
mechanic's=20
lien prior to the expiration of any such one-year period, then the =
claimant's=20
lien rights will be extinguished.
&=
nbsp; 13. The=20
recording of a notice of rights, or any number of renewal of notice of =
rights,=20
shall not extend the time for filing a mechanic's lien as provided under =
section=20
429.080.
&=
nbsp; 14. The=20
renewal of notice of rights shall be in substantially the same form as =
the=20
notice of rights. However, the renewal of notice =
of=20
rights shall be titled as such and shall contain the date and recording=20
information for the original notice of rights, as well as the dates and=20
recording information for any earlier renewals of rights applicable to =
the=20
property. A renewal of notice of rights =
affecting=20
multiple lots must omit any lot for which the claimant has executed an=20
unconditional final lien waiver.
&=
nbsp; 15. A=20
separate notice of rights shall be recorded for each lot or parcel of=20
residential real property upon which the claimant performs its=20
work. Nothing herein shall be construed to =
prohibit the=20
claimant from providing a notice of rights covering multiple lots in the =
same=20
subdivision if common ownership of lots =
exists. If the=20
claimant commences its work prior to the platting or subdivision of a =
tract of=20
land comprising residential real property, the claimant is only required =
to=20
record one notice of rights provided that the entire tract of land upon =
which=20
any such lien is to be asserted is described in such notice of=20
rights.
&=
nbsp; 16. The=20
claimant shall not be required to provide the notice required under =
section=20
429.100, but compliance with the requirements of this section shall not =
relieve=20
the claimant of its duty to comply with all other applicable sections of =
this=20
chapter, except as specifically modified herein, in order to preserve, =
assert,=20
and enforce its mechanic's lien rights.
&=
nbsp; 17. For=20
purposes of any mechanic's liens against residential real property only, =
a=20
claimant satisfies the just and true account requirement contained in =
section=20
429.080 by providing the following information and documentation as part =
of its=20
mechanic's lien claim filed with the clerk of the circuit=20
court:
&=
nbsp; (1) A=20
photocopy of the file-stamped notice of rights and any renewals of =
notice of=20
rights recorded by or identifying claimant;
&=
nbsp; (2) The=20
name and address of the person or entity which claimant contracted with =
to=20
perform work on the property;
&=
nbsp; (3) A=20
copy of any contract or contracts, purchase order or orders, or proposal =
or=20
proposals, hereinafter collectively referred to as agreements, and any =
agreed=20
change orders or modifications to such agreement or agreements under =
which=20
claimant performed its work on the property;
&=
nbsp; (4) In=20
the absence of any written agreement or agreements, a general =
description of the=20
scope of work agreed to be performed by claimant on the property and the =
basis=20
for payment for such work as agreed to by claimant and the contracting=20
party;
&=
nbsp; (5) All=20
invoices submitted by claimant for its work on the=20
property;
&=
nbsp; (6) An=20
accurate statement of account which shows all payments or credits =
against=20
amounts otherwise due to claimant for the work performed on the property =
and the=20
calculation or basis for the amount claimed by claimant in its =
mechanic's lien=20
statement; and
&=
nbsp; (7) The=20
last date that claimant performed any work or labor upon, or provided =
any=20
materials or equipment to, the property;
&=
nbsp; (8) The=20
claimant shall attach a file-stamped copy of his or her notice of rights =
to=20
claimant's mechanic's lien statement if and when filed with the circuit =
clerk=20
under section 429.080.
&=
nbsp; 18. To=20
the extent that any error in the information contained in the claimant's =
notice=20
of rights prejudices the owner, any lender, disbursing company, title =
insurance=20
company, or subsequent purchaser of the property, the claimant=E2=80=99s =
rights to=20
assert a mechanic's lien shall be forfeited to the extent of the =
prejudice=20
caused by such error.
&=
nbsp; 19. A=20
person having an interest in any residential real property against which =
a=20
mechanic's lien has been filed may release such residential real =
property from=20
any such mechanic's lien by:
&=
nbsp; (1) Depositing=20
in the office of the circuit clerk a sum of money, in cash or certified =
check,=20
an irrevocable letter of credit, which may be secured, issued by a =
federally or=20
state chartered bank, savings and loan association or savings bank =
(referred to=20
hereafter as a bank) authorized to and doing business in the state of =
Missouri,=20
or a surety bond issued by a surety company authorized to do surety =
business in=20
the state of Missouri and having a certificate of authority to do =
business with=20
the United States government in accordance with 31 CFR Section 223.1, in =
an=20
amount not less than one hundred fifty percent of the amount of the =
mechanic's=20
lien being released; and
&=
nbsp; (2) Recording=20
with the recorder of deeds and filing with the circuit clerk a =
certificate of=20
deposit signed by the circuit clerk which provides the following=20
information:
&=
nbsp; (a) Amount=20
of money deposited, amount of the letter of credit deposited, or penal =
sum of=20
the bond deposited, along with the name and address of the bank issuing =
the=20
letter of credit or surety company issuing the bond, as well as a =
service=20
address for the bank or surety company;
&=
nbsp; (b) Name=20
of claimant, number assigned to the mechanic's lien being released, and =
the=20
amount of the mechanic's lien being released;
&=
nbsp; (c) Legal=20
description of the property against which the mechanic's lien was=20
filed;
&=
nbsp; (d) Name,=20
address, and property interest of the person making the deposit of =
money,=20
providing the letter of credit or surety bond; =
and
&=
nbsp; (e) A=20
certification by the person making the deposit of money, letter of =
credit, or=20
surety bond that they have mailed a copy of the certificate of deposit =
to the=20
claimant at the address listed on the mechanic's lien being released, =
along with=20
a copy of any letter of credit or bond deposited by said=20
person.
&=
nbsp; 20. Any=20
surety bond deposited as substitute collateral shall obligate the surety =
company, to the extent of the penal sum of the bond, to pay any judgment =
entered=20
under section 429.210.
&=
nbsp; 21. Any=20
letter of credit deposited as substitute collateral shall obligate the =
issuing=20
bank, to the extent of the amount of the letter of credit, to pay any =
judgment=20
entered under section 429.210.
&=
nbsp; 22. Upon=20
release of the residential real property from a mechanic's lien by the =
deposit=20
of substitute collateral, the claimant's rights are transferred from the =
residential real property to the substitute =
collateral.
&=
nbsp; 23. Upon=20
determination of the amount of claimant's claim, if any, against the =
substitute=20
collateral, the court shall either:
&=
nbsp; (1) Order=20
the circuit clerk to pay the claimant any sums awarded out of the =
deposited=20
funds and release any remainder to the person or entity who made the =
cash=20
deposit;
&=
nbsp; (2) Order=20
the bank to issue payment under the letter of credit for the awarded =
amount but=20
not exceeding the amount of the letter of =
credit;
&=
nbsp; (3) Render=20
judgment against the surety company on the bond for the amount awarded =
up to but=20
not exceeding the penal sum of the bond; or
&=
nbsp; (4) Release=20
the substitute collateral
all as =
deemed=20
appropriate by the court.
&=
nbsp; 24. The=20
deposit of substitute collateral and release of claimant's mechanic's =
lien shall=20
not modify any aspect of the priority of claimant's interest, claimant's =
burden=20
of proving compliance with the mechanic's lien statute, or claimant's=20
obligations with respect to enforcement of its mechanic's lien claim, =
including,=20
but not limited to, time for filing suit to enforce and necessary =
parties to the=20
suit to enforce. It is the intent only that the=20
deposited substitute collateral shall be the ultimate source of any =
potential=20
recovery by claimant instead of the funds generated by foreclosure of =
the=20
residential real property.
&=
nbsp; 25. A=20
release of a mechanic's lien under the deposit of substitute collateral =
shall=20
not relieve any claimant of potential liability for slander of title or=20
otherwise due to the filing of claimant's mechanic's=20
lien.
&=
nbsp; 26. The=20
surety company for any bond or the bank which issued the letter of =
credit=20
deposited under this section shall be made a party to any mechanic's =
lien=20
enforcement action with respect to any mechanic's lien released by the =
deposit=20
of said bond or letter of credit.
&=
nbsp; 27. Any=20
claimant may waive its right to assert a mechanic's lien against =
residential=20
real property by executing a partial or full waiver of mechanic's lien =
rights,=20
whether conditioned upon receipt of payment or unconditional, provided =
that a=20
waiver of mechanic's lien rights shall not be deemed or interpreted to =
waive or=20
release mechanic's lien rights in exchange for a payment of less than =
the amount=20
claimed due at that time unless such mechanic's lien waiver is an =
unconditional,=20
final mechanic's lien waiver in compliance with this=20
section.
&=
nbsp; 28. An=20
unconditional, final lien waiver is a complete and absolute waiver of =
any=20
mechanic's lien rights against the residential real property described =
in the=20
mechanic's lien waiver, including any rights which might otherwise arise =
from=20
remedial or additional labor, services, or materials provided to the =
residential=20
real property, or which might benefit the residential real property, =
under=20
either an initial agreement or a supplemental agreement entered into by =
the same=20
parties prior to the execution of the unconditional, final mechanic's =
lien=20
waiver.
&=
nbsp; 29. An=20
unconditional, final mechanic's lien waiver shall only be valid if it is =
on a=20
form that is substantially as follows:
&=
nbsp; UNCONDITIONAL=20
FINAL LIEN WAIVER FOR RESIDENTIAL REAL PROPERTY
Claimant =
(provide legal=20
name and address of Claimant) hereby fully, finally, and unconditionally =
waives=20
and releases any right to assert or enforce a mechanic's lien claim =
against the=20
residential real property identified below for all work performed by =
Claimant=20
prior to the date set forth below and for any work hereafter performed =
by or on=20
behalf of Claimant under any agreements executed by Claimant prior to =
said date=20
set forth below:
(Provide =
legal=20
description of the Property)
Claimant's =
legal name=20
and the name, title or position, address, and telephone number of the =
person=20
executing the unconditional final lien waiver on behalf of claimant =
shall be=20
typed or legibly printed immediately above or below the signature, and =
the date=20
that the document was signed shall be typed or legibly printed =
immediately=20
adjacent to the signature.
&=
nbsp; 30. A=20
claimant executing an unconditional, final mechanic's lien waiver for =
less than=20
full consideration shall be bound by such mechanic's lien waiver as it =
relates=20
to any rights to assert a mechanic's lien against the property, but such =
mechanic's lien waiver shall not constitute a waiver or release of any =
other=20
claim, remedy, or cause of action.
&=
nbsp; 31. An=20
unconditional, final mechanic's lien waiver meeting the requirements of =
this=20
section is valid and enforceable as to claimant's mechanic's lien rights =
as to=20
the property identified on the unconditional, final mechanic's lien =
waiver=20
notwithstanding claimant's failure to receive any promised payment or =
other=20
consideration.
&=
nbsp; 32. Any=20
claimant who has recorded a notice of rights and who has been paid in =
full for=20
the work performed on the property shall timely execute an =
unconditional, final=20
mechanic's lien waiver, shall not unreasonably withhold such a waiver =
when=20
circumstances require prompt execution, and in no event shall fail to =
provide a=20
waiver any later than five calendar days after claimant's receipt of a =
written=20
request to do so by any person or entity. A =
claimant who=20
fails or refuses timely to execute an unconditional, final lien waiver =
when such=20
claimant has been paid in full for any labor, materials, services, or =
equipment=20
supplied or used in the improvement to the property shall be presumed =
liable for=20
slander of title and for any damages sustained as a result thereof, =
together=20
with a statutory penalty of five hundred =
dollars.
&=
nbsp; 33. The=20
provisions of this section shall not apply to a residential structure =
which was=20
substantially completed prior to September 1,=20
2010. Notwithstanding the provisions of =
subsection 3 of=20
this section, a notice of rights recorded on or prior to October 1, =
2010, shall=20
apply to all labor, material, services, or equipment supplied or used at =
any=20
time in the improvement to any residential real property which was not=20
substantially completed prior to September 1, 2010, and the provisions =
of=20
subsection 7 shall only apply to a conveyance of property occurring =
after=20
October 1, 2010.
=E2=80=A2