How Do I Put A Lien On Someone's Property
Full Question:
Answer:
A mechanics lien is a claim made by someone who performs labor or supplies materials or equipment on a project to repair, construct, or improve real property. A mechanic’s lien applies only to private projects. In Louisiana, no lien is allowed in public projects against government property.
If the person who performs work is a general contractor in a project over $25,000, a prelien notice must be filed before beginning work. It is recommended for a general contractor to file this notice even if the project is under $25,000, since each of Louisiana’s 64 parishes has their own requirements for the form of this notice. To be safe, you should seek competent legal counsel before filing these forms. However, if you file early enough, you may be told by the county representative what changes should be made and since these can usually be done within a short period of time, you can return the same day or the next day with the correct form. A notice of lien rights must also be signed by the owner at or before the time the contract is made if the general contractor is working on a residential project.
If the person is a material supplier who has a direct contract with the general contractor or a subcontractor on a residential project, a notice of non-payment must be served on the owner by certified mail with return receipt requested at least 10 days before filing a lien. On a commercial project, material suppliers who have a direct contract with a subcontractor and a notice of contract has been recorded must also serve a notice of nonpayment. This same general form is used as described above for material suppliers on residential property except the time limitations are different. This must be filed within 75 days of the last day of the month in which materials were delivered to the site, or no later than the last day to file a lien, whichever comes first.
The lien is filed for registry with the Recorder of Mortgages in the Parish in which the work is to be performed. The “Recorder of Mortgages” includes the office of the clerk of the court. The lien is served on the owner by certified mail, return receipt requested.
If the lien claimant has a direct contract with a subcontractor, both the general contractor and the owner must be given notice of the mechanic’s lien by certified mail. A general contractor must file the lien within 60 days of the owner's filing of a Notice of Termination, or if none, 60 days from substantial completion or abandonment. A subcontractor or supplier must file a lien within 30 days of the owner filing a Notice of Termination, or if none, 60 days from substantial completion or abandonment.
A person filing a mechanics lien may ask an amount for unpaid labor, material, and equipment supplied. Reasonable attorney’s fees may be included if you have an attorney’s fees provision in your contract and are the successful party in a filed lawsuit. Other damages, including consequential damages and lost profits, are not allowed. If the general contractor filed a payment bond on the project, the owner shall not be liable personally or have his or her property subject to a lien. Instead lien claimants will have to go against the bond.
The following are LA statutes:
9:4802. Improvement of immovable by contractor; claims against the owner
and contractor; privileges securing the improvement
A. The following persons have a claim against the owner and a claim
against the contractor to secure payment of the following obligations
arising out of the performance of work under the contract:
(1) Subcontractors, for the price of their work.
(2) Laborers or employees of the contractor or a subcontractor, for the
price of work performed at the site of the immovable.
(3) Sellers, for the price of movables sold to the contractor or a
subcontractor that become component parts of the immovable, or are
consumed at the site of the immovable, or are consumed in machinery or
equipment used at the site of the immovable.
(4) Lessors, for the rent of movables used at the site of the immovable
and leased to the contractor or a subcontractor by written contract.
(5) Prime consultant registered or certified surveyors or engineers, or
licensed architects, or their professional subconsultants, employed by
the contractor or a subcontractor, for the price of professional services
rendered in connection with a work that is undertaken by the contractor
or subcontractor.
(a) A "professional subconsultant" means a registered or certified
surveyor or engineer, or licensed architect employed by the prime
consultant.
(b) For the privilege under this Subsection to arise, a prime
consultant or professional subconsultant shall give written notice to the
owner within thirty working days after the date that the prime consultant
or professional subconsultant is employed. The notice shall include the
name and address of the prime consultant or professional subconsultant,
the name and address of his employer, and the general nature of the work
to be performed by the prime consultant or professional subconsultant.
B. The claims against the owner shall be secured by a privilege on the
immovable on which the work is performed.
C. The owner is relieved of the claims against him and the privileges
securing them when the claims arise from the performance of a contract by
a general contractor for whom a bond is given and maintained as required
by R.S. 9:4812 and when notice of the contract with the bond attached is
properly and timely filed as required by R.S. 9:4811.
D. Claims against the owner and the contractor granted by this Part are
in addition to other contractual or legal rights the claimants may have
for the payment of amounts owed them.
E. A claimant may assert his claim against either the contractor, his
surety, or the owner without the joinder of the others. The claim shall
not be subject to a plea of discussion or division.
F. A contractor shall indemnify the owner for claims against the owner
arising from the work to be performed under the contract. A subcontractor
shall indemnify the owner, the contractor, and any subcontractor from or
through whom his rights are derived, for amounts paid by them for claims
under this part arising from work performed by the subcontractor.
G.
(1) For the privilege under this Section to arise, the lessor of the
movables shall deliver a copy of the lease to the owner and to the
contractor not more than ten days after the movables are first placed at
the site of the immovable for use in a work.
(2) For the privilege under this Section or R.S. 9:4801(3) to arise,
the seller of movables shall deliver a notice of nonpayment to the owner
at least ten days before filing a statement of his claim and privilege.
The notice shall be served by registered or certified mail, return
receipt requested, and shall contain the name and address of the seller
of movables, a general description of the materials provided, a
description sufficient to identify the immovable property against which a
lien may be claimed, and a written statement of the seller's lien rights
for the total amount owed, plus interest and recordation fees. The
requirements of this Paragraph (G)(2) shall apply to a seller of movables
sold for use or consumption in work on an immovable for residential
purposes.
(3) In addition to the other provisions of this Section, if the seller
of movables has not been paid by the subcontractor and has not sent
notice of nonpayment to the general contractor and the owner, then the
seller shall lose his right to file a privilege or lien on the immovable
property. The return receipt indicating that certified mail was properly
addressed to the last known address of the general contractor and the
owner and deposited in the U.S. mail on or before seventy-five days from
the last day of the month in which the material was delivered, regardless
of whether the certified mail was actually delivered, refused, or
unclaimed satisfies the notice provision hereof or no later than the
statutory lien period, whichever comes first. The provisions of this
Paragraph shall apply only to disputes arising out of recorded
contracts.
9:4802. Improvement of immovable by contractor; claims against the owner
and contractor; privileges securing the improvement
A. The following persons have a claim against the owner and a claim
against the contractor to secure payment of the following obligations
arising out of the performance of work under the contract:
(1) Subcontractors, for the price of their work.
(2) Laborers or employees of the contractor or a subcontractor, for the
price of work performed at the site of the immovable.
(3) Sellers, for the price of movables sold to the contractor or a
subcontractor that become component parts of the immovable, or are
consumed at the site of the immovable, or are consumed in machinery or
equipment used at the site of the immovable.
(4) Lessors, for the rent of movables used at the site of the immovable
and leased to the contractor or a subcontractor by written contract.
(5) Prime consultant registered or certified surveyors or engineers, or
licensed architects, or their professional subconsultants, employed by
the contractor or a subcontractor, for the price of professional services
rendered in connection with a work that is undertaken by the contractor
or subcontractor.
(a) A "professional subconsultant" means a registered or certified
surveyor or engineer, or licensed architect employed by the prime
consultant.
(b) For the privilege under this Subsection to arise, a prime
consultant or professional subconsultant shall give written notice to the
owner within thirty working days after the date that the prime consultant
or professional subconsultant is employed. The notice shall include the
name and address of the prime consultant or professional subconsultant,
the name and address of his employer, and the general nature of the work
to be performed by the prime consultant or professional subconsultant.
B. The claims against the owner shall be secured by a privilege on the
immovable on which the work is performed.
C. The owner is relieved of the claims against him and the privileges
securing them when the claims arise from the performance of a contract by
a general contractor for whom a bond is given and maintained as required
by R.S. 9:4812 and when notice of the contract with the bond attached is
properly and timely filed as required by R.S. 9:4811.
D. Claims against the owner and the contractor granted by this Part are
in addition to other contractual or legal rights the claimants may have
for the payment of amounts owed them.
E. A claimant may assert his claim against either the contractor, his
surety, or the owner without the joinder of the others. The claim shall
not be subject to a plea of discussion or division.
F. A contractor shall indemnify the owner for claims against the owner
arising from the work to be performed under the contract. A subcontractor
shall indemnify the owner, the contractor, and any subcontractor from or
through whom his rights are derived, for amounts paid by them for claims
under this part arising from work performed by the subcontractor.
G.
(1) For the privilege under this Section to arise, the lessor of the
movables shall deliver a copy of the lease to the owner and to the
contractor not more than ten days after the movables are first placed at
the site of the immovable for use in a work.
(2) For the privilege under this Section or R.S. 9:4801(3) to arise,
the seller of movables shall deliver a notice of nonpayment to the owner
at least ten days before filing a statement of his claim and privilege.
The notice shall be served by registered or certified mail, return
receipt requested, and shall contain the name and address of the seller
of movables, a general description of the materials provided, a
description sufficient to identify the immovable property against which a
lien may be claimed, and a written statement of the seller's lien rights
for the total amount owed, plus interest and recordation fees. The
requirements of this Paragraph (G)(2) shall apply to a seller of movables
sold for use or consumption in work on an immovable for residential
purposes.
(3) In addition to the other provisions of this Section, if the seller
of movables has not been paid by the subcontractor and has not sent
notice of nonpayment to the general contractor and the owner, then the
seller shall lose his right to file a privilege or lien on the immovable
property. The return receipt indicating that certified mail was properly
addressed to the last known address of the general contractor and the
owner and deposited in the U.S. mail on or before seventy-five days from
the last day of the month in which the material was delivered, regardless
of whether the certified mail was actually delivered, refused, or
unclaimed satisfies the notice provision hereof or no later than the
statutory lien period, whichever comes first. The provisions of this
Paragraph shall apply only to disputes arising out of recorded
contracts.
9:4811. Notice of a contract with a general contractor to be filed
A. Written notice of a contract between a general contractor and an
owner shall be filed as provided in R.S. 9:4831 before the contractor
begins work, as defined by R.S. 9:4820, on the immovable. The notice:
(1) Shall be signed by the owner and contractor.
(2) Shall contain the legal property description of the immovable upon
which the work is to be performed and the name of the project.
(3) Shall identify the parties and give their mailing addresses.
(4) Shall state the price of the work or, if no price is fixed,
describe the method by which the price is to be calculated and give an
estimate of it.
(5) Shall state when payment of the price is to be made.
(6) Shall describe in general terms the work to be done.
B. A notice of contract is not improperly filed because of an error in
or omission from the notice in the absence of a showing of actual
prejudice by a claimant or other person acquiring rights in the
immovable. An error or omission of the identity of the parties or their
mailing addresses or the improper identification of the immovable shall
be prima facie proof of actual prejudice.
C. A notice of contract is not improperly filed because a proper bond
is not attached.
D. A general contractor shall not enjoy the privilege granted by R.S.
9:4801 if the price of the work stipulated or reasonably estimated in his
contract exceeds twenty-five thousand dollars unless notice of the
contract is timely filed.
E. If a notice of contract is mutually released by the owner and
contractor, then the contract will have no effect, provided no work has
begun on the land or materials placed on the site. The recorder of
mortgages shall immediately cancel the contract upon the filing of the
mutual release and an affidavit made by a registered or certified
engineer or surveyor, licensed architect, or building inspector employed
by the city or parish or by a lending institution chartered under federal
or state law, that states he inspected the immovable at a specified time
subsequent to the filing of the contract and work had not been commenced
and no materials placed at the site. If the contract, or a certified
copy, is then refiled, the refiling date shall become the effective date
for privilege for work done pursuant to the contract in accordance with
R.S. 9:4820(A)(1).
9:4812. Bond required; terms and conditions
A. To be entitled to the benefits of the provisions of R.S. 9:4802(C),
every owner shall require a general contractor to furnish and maintain a
bond of a solvent, legal surety for the work to be performed under the
contract. The bond shall be attached to the notice of the contract when
it is filed.
B. The amount of the bond shall not be less than the following amounts
or percentages of the price of the work stipulated or estimated in the
contract:
(1) If the price is not more than ten thousand dollars the amount of
the bond shall be one hundred percent of the price.
(2) If the price is more than ten thousand dollars but not more than
one hundred thousand dollars the amount of the bond shall be fifty
percent of the price, but not less than ten thousand dollars.
(3) If the price is more than one hundred thousand dollars but not more
than one million dollars the amount of the bond shall be thirty-three and
one-third percent of the price, but not less than fifty thousand
dollars.
(4) If the price is more than one million dollars the amount of the
bond shall be twenty-five percent of the price, but not less than three
hundred thirty-three thousand three hundred thirty-three dollars.
C. The condition of the bond shall be that the surety guarantees:
(1) To the owner and to all persons having a claim against the
contractor, or to whom the contractor is conventionally liable for work
done under the contract, the payment of their claims or of all amounts
owed them arising out of the work performed under the contract to which
it is attached or for which it is given.
(2) To the owner, the complete and timely performance of the contract
unless such guarantee is expressly excluded by the terms of the bond.
D. The bond of a legal surety attached to and filed with the notice of
contract of a general contractor shall be deemed to conform to the
requirements of this part notwithstanding any provision of the bond to
the contrary, but the surety shall not be bound for a sum in excess of
the total amount expressed in the bond.
E. The bond given in compliance with this Part shall be deemed to
include the following conditions:
(1) Extensions of time for the performance of the work shall not
extinguish the obligation of the surety but the surety who has not
consented to the extensions has the right of indemnification under the
original terms of the contract as provided by Article 3057 of the Civil
Code.[fn1]
(2) No other amendment to the contract, or change or modification to
the work, or impairment of the surety's rights of subrogation made
without the surety's consent shall extinguish the obligations of the
surety, but if the change or action is materially prejudicial to the
surety, the surety shall be relieved of liability to the owner, and shall
be indemnified by the owner, for any loss or damage suffered by the
surety.
(3) A payment by the owner to the contractor before the time required
by the contract shall not extinguish the obligation of the surety, but
the surety shall be relieved of liability to the owner, and shall beindemnified by the owner for any loss or damage suffered by the surety.
