MISSISSIPPI

LABORERS, MATERIALMEN, ARCHITECTS, SURVEYORS, ENGINEERS, WATER WELL DRILLERS AND CONTRACTORS

85-7-131 Persons Entitled to Lien, Property Subject to Lien, Subdivisions, Time of Commencement of Lien

85-7-132 Liens of Oil and Gas Board

85-7-133 Recording, Indexing

85-7-135 Authorization by Owner

85-7-137 Improvement by Tenant

85-7-139 Recording of Construction Contracts

85-7-141 Foreclosure Action, Limitations

85-7-143 Parties

85-7-145 Summons

85-7-147 Answer, Counterclaim

85-7-149 Trial, Evidence, Practice

85-7-151 Judgment Against Builder, Execution, Attorneys Fees

85-7-153 Execution

85-7-155 Sale

85-7-157 Sale, Railroad

LIEN ON AMOUNT DUE CONTRACTOR

85-7-181 Lien Against Construction Funds, Suit, Costs and Attorneys Fees

85-7-183 Assignments of Construction Funds

85-7-185 Performance and Payment Bond, Actions

85-7-187 Suit by Obligee, Actions by Claimants

85-7-189 Time for Suit on Bond

85-7-191 Intervention in Suit on Bond

85-7-193 Distribution Prorata, Attorneys Fees

85-7-195 Summons, Service

85-7-197 Claim in Lis Pendens Record, Requirements

85-7-199 Satisfaction of Lien

85-7-201 Filing without Just Cause, Forfeiture, Expungement

GENERAL PROVISIONS

85-7-261 Lien Rights, Assignment

85-7-263 Payment of Liens in Proportion

85-7-265 Justice Court Proceedings

MISSISSIPPI CODE

85-7-131 Persons Entitled to Lien, Property Subject to Lien, Subdivisions, Time of Commencement of Lien

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 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, and materialmen and/or contractors who rendered services and constructed the improvements shall have a lien therefore. 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 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, 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 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 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.

85-7-132 Liens of Oil and Gas Board

Every building, well or structure of any kind, and any fixed machinery, gearing or other fixture that may or may not be used or connected therewith, and all fixtures and equipment in the producing unit assigned such well by the Oil and Gas Board shall be liable for any penalty, civil fine or other expense arising from the violation of any statute of this state with respect to the conservation of oil and gas, or any provision of Sections 53-1-1 through 53-1-47 and Sections 53-3-1 through 53-3-21, or any rule, regulation or order made by the board thereunder. The Oil and Gas Board may use the provisions of this chapter to enforce any such lien. The Oil and Gas Board shall perfect such lien in the county or counties where the property or equipment involved in the violation is located. 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.

85-7-133 Recording, Indexing

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.

85-7-135 Authorization by Owner

The lien declared in section 85-7-131 shall exist only in favor of the person employed, or with whom the contract is made to perform such labor or furnish such materials or render such architectural service, and his assigns, and when the contract or employment is made by the owner, or by his agent, representative, guardian or tenant authorized, either expressly or impliedly, by the owner.

85-7-137 Improvement by Tenant

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.

85-7-139 Recording of Construction Contracts

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.

85-7-141 Foreclosure Action, Limitations

Any person entitled to and desiring to have the benefit of such lien shall commence his suit in the circuit court of the county in which the property or some part thereof is situated, if the principal of his demand exceeds two hundred dollars, within twelve months next after the time when the money due and claimed by the suit became due and payable, and not after; and the suit shall be commenced by petition, describing with reasonable certainty the property upon which the lien is averred to exist, and setting out the nature of the contract and indebtedness, and the amount thereof; and the plaintiff shall file therewith in all cases, except where the whole work or materials, or both, were furnished in pursuance of a written contract for an aggregate price, a bill of particulars exhibiting the amount and kind of labor performed, and of materials furnished, and the prices at which and times when the same were performed and furnished; and such suits shall be docketed and conducted as other suits in said court, and may be tried at the first term.

85-7-143 Parties

All persons having an interest in the controversy, and all persons claiming liens on the same property, by virtue of this chapter, shall be made parties to the suit; and should any necessary or proper party be omitted, he may be brought in by amendment, on his own application or that of any other party interested; and claims of several parties having liens on the same property may be joined in the same action.

85-7-145 Summons

The defendants shall be summoned, as in other actions at law, to appear and defend the action; and in case any necessary party defendant shall be a non-resident of or absent from the state, or cannot be found, he may be made a party by publication, as in cases of non-resident or absent defendants in chancery, requiring him to appear on a day to be therein named; and in default of appearance, the same proceedings shall be had as if such defendant had been duly summoned and made default.

85-7-147 Answer, Counterclaim

The defendants, or any of them, by answer to the petition, may make any defense they may have against the demand of the plaintiff, and also any counter-claim against him touching the subject-matter of the suit. And should any defendant claim to have a lien upon the same property, for materials furnished or labor done thereon, he may present the same by his answer; and the cause shall be at issue without a replication, and the parties shall be confined at the trial to the cause of action and defense set forth in the pleadings.

85-7-149 Trial, Evidence, Practice

The circuit court may direct the formation of such issues, to be tried before a jury, as may be necessary for the determination of all matters controverted in the pleadings; and such issues shall be tried by the same rules of evidence and practice that prevail in other cases at law; and the court may set aside verdicts and grant new trials and give judgments according to the justice of the case.

85-7-151 Judgment Against Builder, Execution, Attorneys Fees

In case judgment be given for the plaintiff against the builder, it shall, in case he was actually served with process, be entered against him generally, with costs, as in other cases, and with attorney’s fees as provided below, and with a special order for the sale of the property upon which the lien exists for the payment thereof, and for an execution, as in other cases, for the residue of what may remain unpaid, after the sale of the property; and if the defendant be brought in by publication only, and have not appeared, the judgment shall be entered specially for the debt and costs, to be made of the property in the petition described; and in case a general judgment be not given against the builder, such proceedings or recovery shall not be a bar to any suit for the debt, except for the part thereof actually made under such recovery. When judgment is rendered in favor of the plaintiff against the builder, the builder shall be liable for reasonable attorney’s fees to be set by the judge for the prosecution and collection of such claim. 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.

85-7-153 Execution

When the judgment shall be against the house, building, structure, or fixture and land, or against the same without the land, or against a railroad, or railroad embankment, a special writ of execution shall issue, to make the amount recovered by sale of the property, which shall be described therein; and when both a general and special judgment shall be given, both writs may be issued, either separately or combined in one, or one may be issued after the return of the other for the whole or the residue, as the case may require.

85-7-155 Sale

If such special writ of execution be for the sale of a house, building, structure, or fixture and the land, or for the sale of the same without the land, the officer shall levy on, advertise, sell, and convey the same as in other cases of land levied on for debt; and if the sale be of the house, building, structure, or fixtures alone, and the same shall have been erected or constructed and put on the land subsequently to a former encumbrance on the land, the purchaser shall acquire the same free from such former encumbrance, and his purchase shall authorize him to enter and remove such house, building, structure, or fixture from the land with reasonable dispatch; but if the house, building, structure or fixture so sold, or sold with the land, shall have been simply altered or repaired subsequently to a former encumbrance on the land, the purchaser shall acquire the same subject to such encumbrance, unless the encumbrancer consented in writing to the alteration or repairs, in which case the house, building, structure, or fixtures so altered or repaired shall be sold free from such encumbrance, and with the right in the purchaser to enter and remove the same. If the land be sold also, the purchaser shall acquire such estate therein as the owner or builder, as the case may be, had at the time the lien to enforce which the sale is made attached thereon, or at any time afterwards, subject to prior encumbrances; but buildings, structures, or fixtures erected or constructed and put on the land subsequently to prior encumbrances shall pass to the purchaser as if the sale were of such buildings, structures, or fixtures alone.

85-7-157 Sale, Railroad

If the special writ of execution be for the sale of a railroad or railroad embankment, the officer shall levy on, advertise, sell, and convey the same as in case of land levied on for debt; and where the property may be in several counties, the officer may sell the same and the right of way, and all depots and other buildings used or connected therewith, as if the same were situated wholly within his county, and the purchaser shall acquire the property free from all prior encumbrances saving the rights of those having concurrent liens under this chapter.

LIEN ON AMOUNT DUE CONTRACTOR

85-7-181 Lien Against Construction Funds, Suit, Costs and Attorneys Fees

When any contractor or master workman shall not pay any person who may have furnished materials 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 or laborer employed by him therein, any such person, subcontractor, journeyman or laborer 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 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 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.

85-7-183 Assignments of Construction Funds

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.

85-7-185 Performance and Payment Bond, Actions

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 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 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 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.

85-7-187 Suit by Obligee, Actions by Claimants

If no suit shall be brought by the obligee within six months from the completion and final settlement of the contract, then any person supplying therein labor or materials shall have a right of action on said bond for his use and benefit against said contractors and the sureties thereon and to prosecute same to final judgment and execution, subject to the rights and demands of the owner.

85-7-189 Time or Suit on Bond

When suit is instituted by any such person on a bond, it shall not be commenced until after the complete performance of said contract, and final settlement thereof and shall be commenced within one (1) year after the performance and final settlement of said contract and not later; provided that if the contractor quits or abandons the contract before its completion suit may be instituted by any such person including the owner on said bond and shall be commenced within one (1) year after such abandonment and not later. But said period for the limitation of the institution of said action shall not begin to run until (a) the obligee shall have made said final settlement or determined said abandonment and published notice thereof in some newspaper in said county, or if there be none then in some newspaper having a general circulation therein; (b) after the written acceptance of the project by the owner; or (c) after the actual occupancy or use by the owner; whichever occurs first.

85-7-191 Intervention in Suit on Bond

When suit is so instituted by any person only one action shall be brought and any person entitled to sue may upon application intervene and be made a party to said suit; however, such intervention must occur within the time limited for such person to bring an original action.

85-7-193 Distribution Prorata, Attorneys Fees

If the recovery on the bond should be inadequate to pay the full amount found due including amounts due the owner, judgment shall be given after the obligee is fully satisfied for all claims, demands, rights and damages to each person, including reasonable attorney’s fees in an amount to be set by the judge, pro rata of the amount of the recovery. The sureties on said bond may pay into court for distribution the full amount of their liability less any amount which may have been paid to the obligee by reason of the execution of said bond, and upon so doing the surety will be relieved from further liability. 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.

85-7-195 Summons, Service

To all suits instituted under the provisions of this chapter the parties interested shall be summoned as provided by section 85-7-145; provided further that where any contractors’ bond has been executed and delivered under any of the foregoing sections of this chapter and the contractor or principal obligor in said bond, or any one or more of said principal obligors therein shall be a non-resident or shall remove from the state, or so conceal himself therein that service of process cannot be directly made upon him personally, then in such case personal service of summons for said absent or absconding principal obligor may be made upon the insurance commissioner of the state of Mississippi in like manner, with the same procedure thereabout, and with the same effect as process may be served on said commissioner in cases of a defendant foreign insurance company; and the delivery of any such bond within this state shall be deemed equivalent to the appointment, by the principal obligors and by the surety or sureties therein, of the state insurance commissioner or his successors in office to be the true and lawful attorney of said obligors upon whom may be served all lawful process in any action or proceeding arising under said bond when for any one of the reasons aforesaid the said principal obligors or any one of them cannot be otherwise served with personal summons in this state, and the delivery of any bond in this chapter mentioned shall be a signification of the agreement and power of attorney of the said principal obligor or obligors and of said sureties that any such process against said principal or principals which is so served shall be of the same legal force and validity as if served upon the said principal or principals personally.

85-7-197 Claim in Lis Pendens Record, Requirements

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.

85-7-199 Satisfaction of Lien

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.

85-7-201 Filing without Just Cause, Forfeiture, Expungement

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 year from such filing; and any person whose rights may be adversely affected may apply, upon two 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.

GENERAL PROVISIONS

85-7-261 Lien Rights, Assignment

Unless otherwise expressly provided, the liens created or mentioned in this chapter shall exist by virtue of the relation of the parties, and without any writing, or if in writing, without recording; and the rights and liens conferred may be asserted and enforced by the assigns and personal representatives of the lienor.

85-7-263 Payment of Liens in Proportion

All liens for erecting, constructing, altering, or repairing the same building, house, structure, fixture, boat, water craft, railroad, or railroad embankment shall be concurrent, and shall be paid in proportion out of the proceeds of the property when sold; and in case the sheriff shall have doubts as to the proper application of the money, he may return the same to the court, stating the question, for its determination.

85-7-265 Justice Court Proceedings

Justice courts shall have jurisdiction of cases arising under this chapter where the amount does not exceed the jurisdictional amount provided for in Section 9-11-9, Mississippi Code of 1972, and the proceedings shall be as nearly in accordance with the provisions of this chapter as may be practicable, and the parties shall have the right of appeal as in other cases. But the sale of buildings under their judgments may be advertised and made as sales of personal property levied on under execution issued by the justice court.