On November 11, 2007
By Scott Wolfe Jr
It’s difficult to stress how beneficial filing a lien can be for your company when attempting to collect on a non-paying project. However, this begs the very important, and sometimes difficult to answer question: Are you legally entitled to lien?
In Louisiana, the lien statutes are drafted with a certain balance. On the one hand, the statutes were created to grant those involved with the construction of a project a privilege on the properties they build or improve. On the other hand, however, the statutes have mechanisms within to protect the property owners from being liened improperly, or otherwise without notice.
Unfortunately, the notice requirements are oftentimes confusing and technical. It is important, however, that your organization understand the notice requirements of the Private Works Act.
If you lien a project without following these notice procedures, you will have filed an improper lien. Filing an improper lien subjects you to owing the property owner damages and attorneys fees.
Contracting with the Owner / Resident
Notice is required whenever you are working on a residential project, and you contract directly with the owner of the property, who also lives in the residence.
The type of notice required is called the “Notice of Lien Rights.” A copy of an example of this notice is available by clicking here.
This notice, again, is required when the following elements are present:
1) Work is being done on a residence;
2) You contracted directly with the owner of the residence. In other words, you are not subcontractor on the project;
3) The owner lives in the residence.
The Notice of Lien Rights to be sent to owners in residential projects is very important, because the law requires that it be provided before work begins, and not as a condition to your construction contract.
Lessor of Equipment or Other Movables
If you are leasing equipment or other movable items to any party in a construction project, you are required to deliver a copy of the lease agreement to those who are not parties to that agreement within 10 days of the equipment’s delivery.
For example, if you lease equipment to a subcontractor, you are not required to deliver an additional copy of the lease to the subcontractor within 10 days of delivery because they will – presumably – already have a copy of the lease. However, you would be required to send a copy of the lease to the general contractor and the owner.
This puts those other parties on notice that you have leased equipment/movables to someone for the work at the jobsite, and if such notice is sent, you will have preserved your right to file a lien in the case of non-payment.
Seller of Movables / Materials / Equipment / Etc.
Whenever you sell supplies, or any type of movable property, you are entitled to file a lien on the property where those supplies are incorporated (if they are used in construction of the improvement).
If the materials sold are incorporated into a commercial project, there are no notice requirements.
If the materials sold are incorporated into a residential project, and you would be liening a residence, LA RS 9:4802(G)(2)-(3) requires that you deliver a notice of nonpayment to the owner of the property at least ten (10) days before filing the lien. The notice must:
- Be served by certified mail, return receipt requested;
- Contain the name and address of the seller of movables (you);
- Contain the general description of materials / movables provided;
- Contain a description sufficient to identify the immovable property against which the lien may be placed;
- Contain a written statement of the seller’s rights (your rights) for the total amount owed, plus interest and recording fees
If you sold the materials/movables to a subcontractor on the project, the notice must be sent certified, return receipt mail to both the owner and the general contractor.
Conclusion
This blog post discusses the most important and prominent notice requirements within the Louisiana Private Works Act. If you are looking to lien a non-paying construction project, you should familiarize yourself with the Private Works Act and consult with an attorney to ensure that you meeting all the requirements to filing.
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