MISSOURI

MISSOURI is not a traditional 1st notice state for Subcontractors, but General/Prime Contractors do have to provide Owners with a Notice To Owner. It forewarns Owners that Subcontractors have a future right to lien if payment is not made to them. It also advises them to request payment waivers (Partial/Full Conditional/Unconditional waivers and releases for payments made to “persons” supplying labor or materials for a project.

General/Prime/Sub Contractors (Private Project): MISSOURI Revised Statutes § 429-080 mandate that a General/Prime/Sub contractors on a commercial or residential project must record a Lien Statement with the Clerk of the District Court in the county where a project you provided construction related equipment, labor, materials or services is located. It must be recorded within six (6) months after the last day of supplying equipment, labor, materials, labor or services to a project.

TITLE XXVII DEBTOR-CREDITOR RELATIONS

CHAPTER 429 STATUTORY LIENS AGAINST REAL ESTATE GENERALLY

429.005 Invalid Waivers

MECHANICS’ AND MATERIALMEN’S LIEN

429.010 Persons Entitled to Lien, Property Encumbered by Lien

429.012 Notice to Owner, Penalties, Exemption, False Waivers

429.013 Liens Against Residential Property, Definitions, Persons Entitled to Lien, Consent to Filing of Mechanics Liens, Full Payment to Contractor a Complete Defense, Forgery, Penalties

429.014 Failure to Pay with Intent to Defraud, Recoupment, Felony

429.015 Liens of Architects and Engineers, Well Digging, Persons Entitled to Lien, Design Professionals, Prorata Entitlement, Defenses

429.020 Liens on Lots for Street and Utility Work

429.030 Property Subject to Lien

429.032 Multiple Lots, Release, Form

429.040 Liens on Contiguous Lots

429.050 Liens on Buildings and Improvements, Removal

429.060 Priorities

429.070 Liens on Leaseholds, Default, Rents

429.080 Contents of Lien, Filing

429.090 Abstract of Lien

429.100 Preliminary Notice

429.110 Service of Notice, Filing

429.120 Acknowledgment of Satisfaction

429.130 Refusal to Satisfy, Penalty

429.140 Contractor to Defend Actions, Owner May Withhold Money from Contractor

429.150 “Owner or Proprietor” Defined

429.160 Assignments

429.170 Limitation of Actions

429.180 Pleadings

429.190 Parties

429.200 Personal Representatives

429.210 Trial and Judgment

429.220 Judgment by Default

429.230 Service by Publication

429.240 Service and Levy

429.250 Execution

429.260 Prorata Distribution

429.270 Action to Determine Rights of Claimants, Marshalling and Distribution

429.280 Parties to Equitable Action

429.290 Equitable Action Exclusive

429.300 Stay of Other Suits

429.310 Pleading in Equitable Action Deemed Commencement of an Action

429.320 Referee, Jury

429.330 Determination of Priorities

429.340 Sale

429.350 Jurisdiction of Associate Circuit Judge

429.360 Practice and Procedure

MISSOURI STATUTES

429.005 Invalid Waivers

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 sectionshall 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.

MECHANICS’ AND MATERIALMEN’S LIEN

429.010 Persons Entitled to Lien, Property Encumbered by Lien

Any person who shall do or perform any work or labor upon, or furnish any material, fixtures, engine, boiler or machinery for any building, erection or improvements upon land, or for repairing the same, or furnish and plant trees, shrubs, bushes or other plants or provides any type of landscaping goods or services or who installs outdoor irrigation systems under or by virtue of any contract with the owner or proprietor thereof, or his 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 his work or labor done, or materials, fixtures, engine, boiler, machinery, trees, shrubs, bushes or other plants furnished, or any type of landscaping goods or services provided, a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of three acres; or if such building, erection or improvements be upon any lot of land in any town, city or village, or if such building, erection or improvements be for manufacturing, industrial or commercial purposes and not within any city, town or village, then such lien shall be upon such building, erection or improvements, and the lot, tract or parcel of land upon which the same are situated, and not limited to the extent of three acres, to secure the payment of such work or labor done, or materials, fixtures, engine, boiler, machinery, trees, shrubs, bushes or other plants or any type of landscaping goods or services furnished, or outdoor irrigation systems installed; except that if such building, erection or improvements be not within the limits of any city, town or village, then such lien shall be also upon the land to the extent necessary to provide a roadway for ingress to and egress from the lot, tract or parcel of land upon which such building, erection or improvements are situated, not to exceed forty feet in width, to the nearest public road or highway. Such lien shall be enforceable only against the property of the original purchaser of such plants unless the lien is filed against the property prior to the conveyance of such property to a third person.

1. Every original contractor, who shall do or perform any work or labor upon, or furnish any material, fixtures, engine, boiler or machinery for any building, erection or improvements upon land, or for repairing the same, under or by virtue of any contract, 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, shall provide to the person with whom the contract is made or to the owner if there is no contract, prior to receiving payment in any form of any kind from such person, (a) either at the time of the execution of the contract, (b) when the materials are delivered, (c) when the work is commenced, or (d) delivered with first invoice, a written notice which shall include the following disclosure language in ten-point bold type:

NOTICE TO OWNER

FAILURE OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL OR SERVICES TO COMPLETE THIS CONTRACT CAN RESULT IN THE FILING OF A MECHANIC’S LIEN ON THE PROPERTY WHICH IS THE SUBJECT OF THIS CONTRACT PURSUANT TO CHAPTER 429, RSMO. TO AVOID THIS RESULT YOU MAY ASK THIS CONTRACTOR FOR “LIEN WAIVERS” FROM ALL PERSONS SUPPLYING MATERIAL OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT. FAILURE TO SECURE LIEN WAIVERS MAY RESULT IN YOUR PAYING FOR LABOR AND MATERIAL TWICE.

2. Compliance with subsection 1 of this section shall be a condition precedent to the creation, existence or validity of any mechanic’s lien in favor of such original contractor.

3. Any original contractor who fails to provide the written notice set out in subsection 1 of this section, with intent to defraud, shall be guilty of a class B misdemeanor and any contractor who knowingly issues a fraudulent lien waiver or a false affidavit shall be guilty of a class C felony.

4. The provisions of subsections 1 and 2 of this section shall not apply to new residences for which the buyer has been furnished mechanics’ and suppliers’ lien protection through a title insurance company registered in the state of Missouri.

5. Any settlement agent, including but not limited to any title insurance company, title insurance agency, title insurance agent or escrow agent who knowingly accepts, with intent to defraud, a fraudulent lien waiver or a false affidavit shall be guilty of a class C felony if the acceptance of the fraudulent lien waiver or false affidavit results in a matter of financial gain to:

(1) The settlement agent or to its officer, director or employee other than a financial gain from the charges regularly made in the course of its business;

(2) A person related as closely as the fourth degree of consanguinity to the settlement agent or to an officer, director or employee of the settlement agent;

(3) A spouse of the settlement agent, officer, director or employee of the settlement agent; or

(4) A person related as closely as the fourth degree of consanguinity to the spouse of the settlement agent, officer, director or employee of the settlement agent.

429.013 Liens Against Residential Property, Definitions, Persons Entitled to Lien, Consent to Filing of Mechanics Liens, Full Payment to Contractor a Complete Defense, Forgery, Penalties

1. The provisions of this section shall apply only to the repair or remodeling of or addition to owner-occupied residential property of four units or less. The term “owner” means the owner of record at the time any contractor, laborer or materialman agrees or is requested to furnish any work, labor, material, fixture, engine, boiler or machinery. The term “owner-occupied” means that property which the owner currently occupies, or intends to occupy and does occupy as a residence within a reasonable time after the completion of the repair, remodeling or addition which is the basis for the lien sought, pursuant to this section. The term “residential property” means property consisting of four or less existing units to which repairs, remodeling or additions are undertaken. This section shall not apply to the building, construction or erection of any improvements constituting the initial or original residential unit or units or other improvements or appurtenances forming a part of the original development of the property. The provisions added to this subsection in 1990 are intended to clarify the scope and meaning of this section as originally enacted.

2. No person, other than an original contractor, who performs any work or labor or furnishes any material, fixtures, engine, boiler or machinery for any building or structure shall have a lien under this section on such building or structure for any work or labor performed or for any material, fixtures, engine, boiler, or machinery furnished unless an owner of the building or structure pursuant to a written contract has agreed to be liable for such costs in the event that the costs are not paid. Such consent shall be printed in ten point bold type and signed separately from the notice required by section 429.012 and shall contain the following words:

CONSENT OF OWNER

CONSENT IS HEREBY GIVEN FOR FILING OF MECHANIC’S LIENS BY ANY PERSON WHO SUPPLIES MATERIALS OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT ON THE PROPERTY ON WHICH IT IS LOCATED IF HE IS NOT PAID.

3. In addition to complying with the provisions of section 429.012, every original contractor shall retain a copy of the notice required by that section and any consent signed by an owner and shall furnish a copy to any person performing work or labor or furnishing material, fixtures, engines, boilers or machinery upon their request for such copy of the notice or consent. It shall be a condition precedent to the creation, existence or validity of any lien by anyone other than an original contractor that a copy of a consent in the form prescribed in subsection 2 of this section, signed by an owner, be attached to the recording of a claim of lien. The signature of one or more of the owners shall be binding upon all owners. Nothing in this section shall relieve the requirements of any original contractor under sections 429.010 and 429.012.

4. In the absence of a consent described in subsection 2 of this section, full payment of the amount due under a contract to the contractor shall be a complete defense to all liens filed by any person performing work or labor or furnishing material, fixtures, engines, boilers or machinery. Partial payment to the contractor shall only act as an offset to the extent of such payment.

5. Any person falsifying the signature of an owner, with intent to defraud, in the consent of owner provided in subsection 2 of this section shall be guilty of a class C felony. Any original contractor who knowingly issues a fraudulent consent of owner shall be guilty of a class C felony.

429.014 Failure to Pay with Intent to Defraud, Recoupment, Felony

1. Any original contractor, subcontractor or supplier who fails or refuses to pay any subcontractor, materialman, supplier or laborer for any services or materials provided pursuant to any contract referred to in section 429.010, 429.012 or 429.013 for which the original contractor, subcontractor or supplier has been paid, with the intent to defraud, commits the crime of lien fraud, regardless of whether the lien was perfected or filed within the time allowed by law.

2. A property owner or lessee who pays a subcontractor, materialman, supplier or laborer for the services or goods claimed pursuant to a lien, for which the original contractor, subcontractor or supplier has been paid, shall have a claim against the original contractor, subcontractor or supplier who failed or refused to pay the subcontractor, materialman, supplier or laborer.

3. Lien fraud is a class C felony if the amount of the lien filed or the aggregate amount of all liens filed on the subject property as a result of the conduct described in subsection 1 of this section is in excess of five hundred dollars, otherwise lien fraud is a class A misdemeanor. If no liens are filed, lien fraud is a class A misdemeanor.

429.015 Liens of Architects and Engineers, Well Digging, Persons Entitled to Lien, Design Professionals, Prorata Entitlement, Defenses

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. 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, 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. 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.

429.020 Liens on Lots for Streets and Utility Work

Every mechanic or other person who shall do or perform any work or labor upon or furnish any material for the construction of any street, curb, sidewalk, sewerline, waterline, or other pipeline in front of, adjacent to, along or adjoining any lot, tract or parcel of land in any town, city or village, under or by virtue of any contract with the owner or proprietor of such lot, tract or parcel of land, or his 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, shall, upon complying with the provisions of sections 429.010 to 429.340, have a lien upon such lot, tract or parcel of land for his work or labor done, or material furnished.

429.030 Property Subject to Lien

The entire land, to the extent aforesaid, upon which any such building, erection or improvement is situated, or in front or alongside of which such street, curb, sidewalk, sewerline, waterline or other pipeline shall have been built, including as well that part of said land which is not covered with such building, erection or other improvement as that part thereof which is covered with the same, shall be subject to all liens created by sections 429.010 to 429.340 to the extent, and only to the extent, of all the right, title and interest owned therein by the owner or proprietor of such building, erection or improvement, and for whose immediate use or benefit the labor was done or the things furnished.

429.032 Multiple Lots, Release, Form

1. When multiple lots, tracts or parcels are the subject of one mechanic’s lien created by virtue of sections 429.010 to 429.340, it shall be permissible for every mechanic or other person who has a lien upon such multiple lots, tracts or parcels to release one or more of the lots, tracts or parcels from the mechanic’s lien. The lots, tracts or parcels released, and the amount of mechanic’s lien debt attributable to such lot, tract or parcel so released shall be specified by the mechanic’s lien claimant.

2. Whenever a mechanic’s lien filed upon multiple lots, tracts or parcels is partially released as to one or more of the lots, tracts or parcels, it shall be the duty of the mechanic’s lien claimant to acknowledge upon the record or the margin thereof, in the office of the clerk of the circuit court, the portion of the mechanic’s lien debt that is satisfied and the lots, tracts or parcels which are being released. The acknowledgment shall be sufficient if filed with the clerk of the circuit court in the following form:

PARTIAL RELEASE OF MECHANIC’S LIEN

STATE OF MISSOURI ) ) SS. COUNTY OF ________ )

COMES NOW ______, (name of lien claimant) the lien claimant and does hereby partially release its mechanic’s lien filed on ______, (date lien filed) and filed for record as lien number _______, (lien number or book and page numbers)

The amount of the original mechanic’s lien debt is $________

The amount of the original mechanic’s lien debt which is now satisfied is $___________

The lots, tracts or parcels which are being released are more fully described as follows: (Legal description of lots, tracts or parcels which are being released)

_______________________________ Lien Claimant By ____________________________(Signature of authorized representative)

(FOR INDIVIDUAL LIEN CLAIMANT)

On this _____ day of _____, 19__, before me personally appeared ______, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he/she executed the same as his/her free act and deed.

IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the county and state aforesaid, the day and year first above written.

________________________________ Notary Public

My commission expires: ___________.

OR (FOR CORPORATE LIEN CLAIMANT)

On this _____ day of _____, 20__, before me personally appeared _____, to me personally known, who, being by me duly sworn, did say that he is the _____ of _____, a Missouri corporation, and that the seal affixed to the foregoing corporation, and that the seal affixed to the foregoing instrument is the corporate seal of said corporation, and that said instrument was signed and sealed on behalf of said corporation by authority of its board of directors; and said ________ acknowledged said instrument to be the free act and deed of said corporation.

IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the county and state aforesaid, the day and year first above written.

_______________________________ Notary Public

My commission expires: ___________.

429.040 Liens on Contiguous Lots

When the improvements consist of two or more buildings, united together and situated Upon the same lot or contiguous lots, or separate buildings upon contiguous lots, or a continuous or connected sidewalk in front or alongside of contiguous lots, and erected under one general contract, it shall not be necessary to file a separate lien upon each building or lot for the work done or materials furnished in the erection of such improvements.

429.050 Liens on Buildings and Improvements, Removal

The lien for the things aforesaid, or work, shall attach to the buildings, erections or improvements for which they were furnished or the work was done, in preference to any prior lien or encumbrance or mortgage upon the land upon which said buildings, erections, improvements or machinery have been erected or put; and any person enforcing such lien may have such buildings, erections or improvements sold under execution, and the purchaser may remove the same within a reasonable time thereafter; provided, that nothing contained in this section shall be so construed as to allow any such sidewalk as is mentioned in sections 429.010 to 429.340 to be so sold under execution or so removed.

429.060 Priorities

The lien for work and materials as aforesaid shall be preferred to all other encumbrances which may be attached to or upon such buildings, bridges or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.

429.070 Liens on Leaseholds, Default, Rents

1. Every building, erection, improvement and plant erected or constructed, and all materials, fixtures, engines, boilers, pumps, belting, pulleys, shafting, machinery and other personal property furnished, or placed on licensed or leased lots or lands shall, regardless of whether or not the owner of the license or lease has the right thereunder to remove the same or other personal property from such licensed or leased premises during or at the end of the term thereof, be held for the debt contracted for on account of the same and also the licensed interest or leasehold term for such lot and land on which the same is placed or erected.

2. Every mechanic, person or corporation who shall erect or construct any building, plant, improvement, or erection, or who shall furnish any material, fixture, engine, boiler, pump, belting, pulley, shafting, machinery or other personal property upon either licensed or leased lots or lands under or by virtue of any contract or account with the owner or proprietor of the license or lease or with his or its agent, 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 a lien upon such building, plant, improvement, erection, and also upon such materials, fixtures, engines, boilers, pumps, belting, pulleys, shafting, machinery and such other personal property and also upon the license or lease on such lots or lands to the full extent of the number of acres or lots held under such license or lease by the owner thereof, and regardless of whether or not the owner of such license or lease has the right thereunder to remove either during or at the end of the term thereof such building, plant, improvement, erection, materials, fixtures, engines, boilers, pumps, belting, pulleys, shafting or machinery or other personal property thereon.

3. Every mechanic, person or corporation who shall do or perform any work or labor upon or repair any fixture, engine, boiler, pump, belting, pulley, shafting, machinery or other personal property belonging to a licensee or lessee and located upon either licensed or leased lots shall have for his work or labor done in repairing such personal property of the lessee or licensee, a lien upon such fixtures, engines, boilers, pumps, belting, pulleys, shafting, machinery or other personal property belonging to the lessee.

4. In case the licensee or lessee shall have forfeited his license or lease, the purchaser of the buildings, plants, erections, improvements, materials, fixtures, engines, boilers, pumps, belting, pulleys, shafting, machinery or other personal property and licensed interest or leasehold term or so much thereof as remains unexpired under the provisions of sections 429.010 to 429.340 shall be held to be the assignee of such licensed interest or leasehold term and as such shall be entitled to pay to the licensor or lessors all arrears of rents or other money, interest and costs due under said license or lease unless the licensor or lessor shall have regained possession of the licensed, or leasehold land, or obtained judgment for the possession thereof on account of the noncompliance by the licensee or lessee with the terms of the license or lease prior to the commencement of the buildings, erections, plants, or improvements erected or constructed prior to the time the materials, fixtures, engines, boilers, pumps, belting, pulleys, shafting, machinery or other personal property is furnished, or placed thereon, in which case the purchaser of the buildings, erections, plants, improvements, materials, fixtures, engines, boilers, pumps, belting, pulleys, shafting, machinery or other personal property shall have the right to remove the same within sixty days after the purchase thereof, and the owner of the ground shall receive the rent due to him payable out of the proceeds of the sale, according to the terms of the license or lease, down to the time of removing the building, erections, plants, improvements, materials, fixtures, engines, boilers, pumps, belting, pulleys, shafting, machinery or other personal property.

429.080 Contents of Lien, Filing

It shall be the duty of every original contractor, every journeyman and day laborer, and every other person seeking to obtain the benefit of the provisions of sections 429.010 to 429.340, within six months after the indebtedness shall have accrued to file with the clerk of the circuit court of the proper county a just and true account of the demand due him or them after all just credits have been given, which is to be a lien upon such building or other improvements, and a true description of the property, or so near as to identify the same, upon which the lien is intended to apply, with the name of the owner or contractor, or both, if known to the person filing the lien, which shall, in all cases, be verified by the oath of himself or some credible person for him.

429.090 Abstract of Lien

It shall be the duty of the clerk of the circuit court to endorse upon every account the date of its filing, and maintain an abstract thereof, containing the date of its filing, the name of the person seeking to enforce the lien, the amount claimed, the name of the person against whose property the lien is filed, and a description of the property charged with the same.

429.100 Preliminary Notice

Every person except the original contractor, who may wish to avail himself of the benefit of the provisions of sections 429.010 to 429.340, shall give ten days’ notice before the filing of the lien, as herein required, to the owner, owners or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount and from whom the same is due. Such notice may be served by any officer authorized by law to serve process in civil actions, or by any person who would be a competent witness. When served by an officer, his official return endorsed thereon shall be proof thereof, and when served by any other person, the fact of such service shall be verified by affidavit of the person so serving.

429.110 Service of Notice, Filing

Whenever property is sought to be charged with a lien under sections 429.010 to 429.340, and the owner of the property so sought to be charged shall not be a resident of this state, or shall have no agent in the county in which said property is situate, or when such owner shall be a resident of the state, but conceals himself, or has absconded, or absents himself from his usual place of abode, so that the notice required by section 429.100 cannot be served upon him, then, and in every such case, such notice may be filed with the recorder of deeds of the county in which such property is situate, and when filed shall have like effect as if served upon such owner or his agent in the manner contemplated by section 429.100; and a copy of such notice so filed, together with the certificate of such recorder of deeds that the same is a correct copy of the notice so filed, shall be received in all courts of this state as evidence of the service, as herein provided, of such notice; and the recorder of deeds in each county of this state shall receive, file and keep every such notice so presented to him for filing, and shall
further record the same at length in a separate book appropriately entitled; and for such service so performed, such recorder shall receive for each notice the sum of twenty-five cents, and for each copy so certified as aforesaid of each of said notices, shall receive the sum of fifty cents, to be paid by the party so filing or procuring such certified copy, as the case may be, and the costs of filing and of one certified copy shall be taxed as costs in any lien suit to which the same pertains, to abide the result of the suit.

429.120 Acknowledgment of Satisfaction

Whenever any debt, which is a lien upon any building or other improvement, shall be paid or satisfied, the creditor, if required, shall file an acknowledgment of such satisfaction with the clerk of the circuit court.

429.130 Refusal to Satisfy, Penalty

If any creditor refuse to enter satisfaction within ten days after payment and request, as aforesaid, he shall be liable to any person injured, to the amount of such injury and costs of suit.

429.140 Contractor to Defend Actions, Owner May Withhold Money from Contractor

In all cases where a lien shall be filed under the provisions of sections 429.010 to 429.340 by any person other than a contractor, it shall be the duty of the contractor to defend any action brought thereupon, at his own expense; and, during the pendency of such action, the owner may withhold from the contractor the amount of money for which such lien shall be filed; and in case of judgment against the owner or his property upon the lien, he shall be entitled to deduct from any amount due by him to the contractor the amount of such judgment and costs, and, if he shall have settled with the contractor in full, shall be entitled to recover back from the contractor any amount so paid by the owner for which the contractor was originally the party liable.

429.150 “Owner or Proprietor” Defined

Every person, including all cestui que trust, for whose immediate use, enjoyment or benefit any building, erection or improvement shall be made, shall be included by the words “owner or proprietor” thereof under sections 429.010 to 429.340, not excepting such as may be minors over the age of eighteen years, or married women.

429.160 Assignments

Any two or more persons having filed in the clerk’s office mechanics’ liens may assign to each other or to any other person all their right, title and interest in and to such mechanics’ liens, and the assignee thereof may bring suit in his name and enforce all such assigned liens as fully as if the same had not been assigned.

429.170 Limitation of Actions

All actions under sections 429.010 to 429.340 shall be commenced within six months after filing the lien, and prosecuted without unnecessary delay to final judgment; and no lien shall continue to exist by virtue of the provisions of said sections, for more than six months after the lien shall be filed, unless within that time an action shall be instituted thereon, as herein prescribed.

429.180 Pleadings

The pleadings, practice, process and other proceedings in cases arising under sections 429.010 to 429.340 shall be the same as in ordinary civil actions and proceedings in circuit courts, except as herein otherwise provided. The petition, among other things, shall allege the facts necessary for securing a lien under said sections, and shall contain a description of the property charged therewith.

429.190 Parties

In all suits under sections 429.010 to 429.340 the parties to the contract shall, and all other persons interested in the matter in controversy or in the property charged with the lien may be made parties, but such as are not made parties shall not be bound by any such proceedings.

429.200 Personal Representatives

In case of the death of any of the parties specified in section 429.190, whether before or after suit brought, the personal representative of such deceased party shall be made plaintiff or defendant, as the case may require, and it shall not be necessary to make the heirs or devisees of such deceased persons parties to the suit; but if there is no personal representative of such deceased person, then his heirs or devisees may be made parties, and if any of the heirs or devisees are minors under the age of eighteen years, their guardians or conservators of their estates shall he made parties with them; but if such minors shall have no guardians or conservators of their estates, the court in which the suit is pending shall appoint guardians ad litem for them in the same manner and under the same rules and regulations as guardians ad litem are appointed in proceedings for partition of real estate, and the judgment and proceedings of such court in any such suits shall be as binding on such minors as if they were over the age of eighteen years.

429.210 Trial and Judgment

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 therefore in any sum not exceeding the amount claimed in the demand filed with the lien, together with interest and costs, although the creditor may have unintentionally failed to enter in his account filed the full amount of credits to which the debtor may be entitled.

429.220 Judgment by Default

Judgment by default shall be rendered against every defendant who, after being summoned or notified according to law, shall not appear and plead within the time allowed in ordinary civil actions.

429.230 Service by Publication

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 recover the amount of the indebtedness found to be due, and costs of suit, to be levied of the property charged with the lien therefore, which said property shall be correctly described in said judgment.

429.240 Service and Levy

When the debtor has been served with summons according to law, or appears to the action without service, the judgment, if for the plaintiff, shall be against such debtor as in ordinary cases, with the addition that if no sufficient property of the debtor can be found to satisfy such judgment and costs of suit, then the residue thereof be levied as provided in section 429.230.

429.250 Execution

The execution to be issued shall be a special fieri facias, and shall be in conformity with the judgment, and such writ shall be returnable as ordinary executions; and the advertisement, sale and conveyance of real or personal estate under the same shall be made as under ordinary executions.

429.260 Prorata Distribution

The liens for work and labor done or things furnished, as specified in sections 429.010 to 429.340, shall be upon an equal footing, without reference to the date of filing the account or lien; and in all cases where a sale shall be ordered and the property sold, which may be described in any account or lien, the proceeds arising from such sale, when not sufficient to discharge in full all the liens against the same without reference to the date of filing the account or lien, shall be paid pro rata on the respective liens; provided, such account or liens shall have been filed and suit brought as provided by said sections.

429.270 Action to Determine Rights of Claimants, Marshalling and Distribution

Any and all liens in sections 429.010 to 429.340 provided for may be adjudicated and determined and the rights of all parties interested in the same and in the property and of any of the property against which the same is claimed may be adjudicated, determined and enforced in one action which may be brought by any such lien claimant after the statement for such lien is filed in the office of the clerk of court, as herein provided, or such action may be brought by any owner or lessee of the property or any of it to be affected, or mortgagee or holder of any other encumbrance thereon. Such action shall be an equitable action for the purpose of determining the various rights, interest and liens of the various mechanics’ lien claimants and claimants of other liens and owner of any interest in or leasehold upon said property and for enforcing the rights of any and all such persons in, to or against the property, being the lands and buildings and either of the same and for sale of such property, land and buildings or either of the same and for marshalling and distribution of the proceeds thereof among the parties according to their respective legal and equitable rights therein. Such action shall be an equitable action for the purpose of determining, establishing and enforcing the various and respective rights of the parties thereto and for the purpose of marshalling, applying and distributing the proceeds of the sale of such property that may be ordered and decreed in said action.

429.280 Parties to Equitable Action

1. All persons claiming any lien or encumbrance upon, and all persons having any rights in or against and all owners and lessees of said property to be affected and any of it, all as may be disclosed by the proper public records, shall be made parties to said action and parties whose interests are divers may join as plaintiffs therein, but if they do not join as plaintiffs, then they shall be made defendants.

2. Any person, lien claimant or other having any rights in, to, against or upon said property and any of it whose rights are not disclosed at the time of bringing said action by the proper record, shall be bound by the proceedings, orders and judgments in said actions, but any such person shall be entitled upon application to the court to be made a party to said action at any time before final disposition by the final judgment of the court therein of the proceeds of said property and shall be entitled according to their respective rights to participate in the proceeds of the sale of such property and any of it, as the same may be there after received or then remain under the jurisdiction of the court.

3. If at the commencement of said action any person whose rights are disclosed by the record is omitted as a party, he may thereafter be made party to said action either upon his own application or upon the application of any other party to said action or by the court of its own motion.

4. If any party to said action shall die or cease to exist during the pendency of said action before the judgment or order of sale therein of said property, then the proper representatives, either administrator or other proper successor in right, shall be substituted by order of the court upon motion and notice of motion without formal revivor of said action.

429.290 Equitable Action Exclusive

After any such equitable action is commenced, the same shall be exclusive of other remedies for the enforcement of mechanics’ liens, but until such action is brought, the other remedies provided for in sections 429.010 to 429.340 shall remain and exist. And the procedure in any such equitable action, except as herein otherwise provided, shall be governed by the law and rules of procedure in civil actions generally.

429.300 Stay of Other Suits

The equitable action above provided for shall be brought in the proper court of record regardless of the amount claimed by the plaintiff or plaintiffs in such action, and all other suits that may have been brought on any mechanic’s lien claim or demand shall be stayed and no further prosecuted, and the parties in any such other suit shall be made parties to such equitable action as in the foregoing sections provided, and any costs rightfully accrued in behalf of any lien claimant in any such other action shall be and become a part of the lien claim of such party. After the institution of such equitable action no separate suit shall be brought upon any mechanic’s lien or claim against said property, or any of it, but the rights of all persons shall be adjusted, adjudicated and enforced in such equitable suit.

429.310 Pleading in Equitable Action Deemed Commencement of an Action

Any answer, or other pleading, or motion, or entry of appearance followed by pleading in due course, filed or made in any such equitable action by any mechanic’s lien claimant, within six months after the preliminary statement for the lien of such claimant has been filed in the proper office therefore, as required by law, or, when filed, or made, at the time required by law on a summons in such equitable action, issued before or within such six-months’ period within which suits on mechanics’ liens including this equitable action are required to be commenced, provided such equitable action is still pending, shall be deemed a commencement of an action by such mechanic’s lien claimant.

429.320 Referee, Jury

At the instance of any party to said action the court may appoint a referee to hear and report the evidence and to make conclusions and findings of fact and law therein and to report the same to the court for its further action thereon, and the court may confirm and approve said report in full or in parts and may modify the same and make other findings from the evidence reported as may be just and proper and render judgment accordingly. The court shall not appoint in any such equitable action any referee of its own motion. And in any such action the court may, if it deem the parties entitled thereto, or in its discretion submit any issue upon any separate claim or demand to a jury, and any two or more of such issues may in the discretion of the court be submitted to one jury or the court may submit separately such issues to a jury and shall be bound by the findings of the jury thereon in the further proceedings in said cause, subject to the power of the court to grant new trial of such issues.

429.330 Determination of Priorities

This equitable action shall not apply to instances in which there is only one mechanic’s lien claimed against the property and any of it, but in any suit thereon the court shall determine the respective priorities as between such mechanic’s lien and any other lien or encumbrance and enforce the same accordingly.

429.340 Sale

Upon sale and execution of deed for the property sold in such equitable action, either by special commissioner appointed to make said sale or by the sheriff or successor of such commissioner or sheriff, the court may order delivery of possession of the premises sold to the purchaser at such sale and enforce such order by writ of assistance or other proper process against all persons to said action and all persons bound thereby, including those whose interests did not appear of record at the commencement of said action and all persons becoming interested in said property or obtaining possession thereof after the commencement of said action, which shall be the filing of the petition therein. And the court shall have full power and jurisdiction to speed said action and require service of process to be obtained speedily upon all parties therein at the instance of any party either plaintiff or defendant in said action or of its own motion.

429.350 Jurisdiction of Associate Circuit Judge

Associate circuit judges may exercise jurisdiction without special assignment in all actions brought to enforce mechanics’ liens when the amount or balance claimed to be due does not exceed the monetary jurisdiction which associate circuit judges may exercise in ordinary civil actions without special assignment.

429.360 Practice and Procedure

The process, practice and procedure, including applications for trial de novo, in suits to enforce mechanics’ liens which are heard by an associate circuit judge without special assignment shall be as nearly as practicable the same as provided in other civil suits heard by associate circuit judges. When a case is specially assigned to an associate circuit judge to hear upon a record, the process, practice and procedure, including appeals, shall be the same as if the case was being heard by a circuit judge.