Mississippi Pre-Lien Notice

Introduction

Key Things to Know

1. 1

   Mississippi runs two early notices and the project type picks which you owe. On single-family residential construction a claimant not in privity with the owner serves the owner a Pre-Lien Notice, which warns the owner a lien is coming. On everything else, a claimant not in privity with the contractor serves the contractor a written notice of what it is supplying. Neither is a lien, and neither gets recorded.

2. 2

   The non-residential notice is due within thirty days following the first delivery of labor, services or materials to the property, and goes to the contractor, or to the owner where there is no contractor (Section 85-7-407(2)).

3. 3

   Section 85-7-407(2) permits exactly three delivery methods: e-mail with a confirmed receipt, registered or certified mail, or statutory overnight delivery. Statutory overnight delivery is defined in Section 85-7-401(j) and requires both a next business day instruction and a receipt signed by the addressee or an agent.

4. 4

   The single-family residential Pre-Lien Notice is due at least ten days before the claimant files a claim of lien, and Mississippi allows it to be evidenced by any reliable means of delivery rather than naming methods (Section 85-7-409(2)).

5. 5

   The residential form is prescribed. Section 85-7-433(5) prints the PRE-LIEN NOTICE TO OWNER in capital letters, and Section 85-7-409(3) requires the claimant's notice to be in substantially the same form.

6. 6

   Omission is fatal on both tracks. A claimant without privity with the contractor who fails to give the 30 day notice thereby forfeits the right to a lien under the article. The residential Pre-Lien Notice is a condition precedent of any right to a special lien under Section 85-7-403.

7. 7

   On a single-family home the notice also strips the owner's best defense. Owner payment to a contractor in privity with the owner is an absolute defense to a subcontractor or materialman lien claim, but only to the extent the owner had not received a pre-lien notice before that payment (Section 85-7-409(1)).

Mississippi Requirements for Preliminary Notice

• Three Delivery Methods, and E-Mail Needs a Confirmed Receipt

  Section 85-7-407(2) permits the notice to the contractor to go by e-mail with a confirmed receipt, by registered or certified mail, or by statutory overnight delivery, and names nothing else. Section 85-7-401(j) defines statutory overnight delivery to require both a next business day delivery instruction and a receipt acknowledging receipt signed by the addressee or an agent of the addressee.

• Thirty Days From Your First Delivery to the Property

  A person with a lien right under Section 85-7-403 who has no privity of contract with the contractor, or with the owner where there is no contractor, must give the written notice within thirty days following the first delivery of labor, services or materials to the property. Mississippi publishes its Code through a private publisher, so this wording is quoted from the enacted acts on the Legislature's own server; attorney review is available on it as an option.

• Ten Days Ahead of Filing on a Single-Family Home

  As to single-family residential construction only, a subcontractor, materialman or design professional not in privity with the owner must provide the owner a pre-lien written notice at least ten days before filing a claim of lien, as a condition precedent of any right to a special lien under Section 85-7-403. It can be evidenced by any reliable means of delivery.

• Two Tracks That Never Overlap

  Section 85-7-407(4) provides that the provisions of that section do not apply to single-family residential construction, and Section 85-7-409 applies to single-family residential construction only. The project type therefore decides which notice is owed, and no claimant owes both on the same job.

• The Prescribed PRE-LIEN NOTICE TO OWNER Form

  Section 85-7-409(3) requires the residential notice to be in substantially the same form as the Pre-Lien Notice printed in Section 85-7-433(5). The prescribed text is in capital letters, identifies the claimant as a person having a right to a lien under Section 85-7-403 without a direct contract with the owner, names the property as commonly known, states the unpaid sum, and states that the claimant intends to file a claim of special lien in ten or more days from the date of the notice.

• Four Required Items in the Notice to the Contractor

  Section 85-7-407(2) requires the name, address and telephone number of the person providing labor, services or materials; the name and address of each person at whose instance they are being furnished; the name of the project and the location of the project; and a description of the labor, services or materials being provided, with the contract price or anticipated value if known. No wording is prescribed for this one.

• Omission Forfeits the Lien Outright

  Section 85-7-407(2) provides that a person not in privity of contract with the contractor who fails to provide the required notice thereby forfeits his right to a lien under the article. On single-family residential work the Pre-Lien Notice is a condition precedent to the special lien, and Section 85-7-409(1) makes owner payment to a contractor in privity with the owner an absolute defense to the claim, but only to the extent the owner had not received the pre-lien notice before that payment.

• No Affidavit, So the Delivery Record Is the Proof

  Neither section prescribes a proof of service affidavit. Each permitted method carries its own evidence instead: a confirmed receipt for e-mail, the postal record for registered or certified mail, and a signed receipt for statutory overnight delivery, while the residential notice must be capable of being evidenced by any reliable means of delivery. Section 85-7-407(1) separately lets the owner demand a complete list of all subcontractors and materialmen from the contractor, and forfeits the lien of a party who willfully refuses.