- Mississippi is an unpaid balance lien state
- The value of the lien is the full amount due to the individual entitled to a lien unless payments have been made in reliance of a lien waiver as described in §85-7-413(1)(a) or in reliance of a sworn written statement of the General Contractor described in §85-7-413(1)(b). If either are made, the aggregate value of the liens made by parties without a direct contractual relationship to the Owner is limited to the unpaid balance of the contract price of the agreement between the Owner and the General Contractor. (§85-7-405(5)(a))
Residential: For single-family residential construction only, payments made by or on behalf of the owner to a General Contractor for the services of Subcontractors, Material Providers or others are an absolute defense to any Claim of Lien unless the owner has received a Pre-Lien Notice prior to making the payment. (§85-7-309)
- For single-family residential construction only, all parties other than those with direct contracts with the owner must provide the owner with a written Pre-Lien Notice at least 10 days before filing a Claim of Lien. (§85-7-309)
- For single-family residential construction only, payments made by or on behalf of the owner to a General Contractor for the services of Subcontractors, Material Providers or others are an absolute defense to any Claim of Lien unless the owner has received a Pre-Lien Notice prior to making the payment. (§85-7-309)
- Any notice required may be sent by registered mail, certified mail or statutory overnight delivery (any commercial or USPS service which delivers the next business day after receipt and provides an acknowledgment that delivery was received and signed for by addressee or agent of addressee) (§85-7-301). A notice may also be served via email with a confirmed receipt. NACM does not recommend sending notices via email.
- The right to a Claim of Lien cannot be waived in advance of furnishing labor, services or materials. (§85-7-319(1))
- Contractors or Subcontractors or Materialmen who contract with unlicensed Contractors or Subcontractors will be denied the right to a Mechanic's Lien. (§85-7-303(5))
- Upon request, any Contractor or Subcontractor is required to provide any Owner, Contractor, Subcontractor or Materialman a copy of that person's current license.
- If requested by the property owner by registered mail, certified mail or statutory overnight delivery, a General Contractor must furnish the owner, and Subcontractors must furnish the General Contractor, a complete list of all subcontractors and material men employed. Willful failure or refusal to do this within a reasonable period of time voids the right to a Mechanic's Lien. (85-7-307(1))
- If a General Contractor or Subcontractor fails to pay any materialman or subcontractor in direct contract with him in accordance with any contract, subcontract or purchase order that specifically requires that he do so, he forfeits his right to a Mechanic's Lien. (85-7-307(1))
- A Claim of Lien may be amended at any time to increase or reduce the amount claimed. The amendment shall be treated as if were in the claim originally filed
- When contracting to construct buildings or improvements on leased property under contract with the lessee, Mechanic's Lien remedies are limited to the following. (§85-7-311)
- A Lien only upon the building or improvement erected and the remaining term of the lease
- The right to take over the remaining term of lease under the condition that all obligations of the lessee must be satisfied
- The right to sell the building or improvement subject to the lease
- The right to remove the building or improvement from the property, only within 60 days of the sale, and only if doing so will not injure the real property the building or improvement sits on
- The right to proceeds from the sale beyond the contract price to compensate the Lien Claimant for rents paid to lessor
- The right to receive payment from the lessor if he or she wishes to purchase the improvement for the amount owed under the Claim of Lien
- Once a Claim of Lien is filed, the Owner or General Contractor may file a Notice of Contest of Lien. Proper filing and notice sent to the Lien Claimant within 7 days shortens the period to commence a payment action from 180 days to 90 days from the date of filing the contest. (§85-7-323)
- If payment is made to Lien Claimant, the Lien holder must file a cancellation of the Lien with the Clerk of Chancery Court where the Lien is filed. Failure to file a cancellation within 15 days of a demand made to do so results in a liability of actual damages suffered by the party the claim was made against or $500 per day until the cancellation is filed, whichever is greater, plus attorney's fees and costs. (§87-5-321)
- At any time before or after foreclosure proceedings are instituted the Owner or General Contractor may post a bond with the Clerk of Chancery Court in the County where the Claim of Lien was filed of 110% of the amount claimed under the Lien. Upon Approval of the Clerk, the Claim of Lien is discharged. (§85-7-331)
- The creation of a payment bond by the General Contractor for the full amount owed to Subcontractors and Material Providers extinguishes the right to a Mechanic's Lien. Any recovery must be against the bond. (§85-7-331)
- Knowingly filing a false Claim of Lien without just causes, causes the filer to be liable for three times the full amount of the false claim. (§85-7-329)
- Private bonded projects subcontractors and suppliers: When a payment bond has been issued by the General Contractor per statute, a lien cannot be filed. Statute requires General Contractors to provide a copy of the bond upon written request.
- MS lien filing timeframes allow for warranty and punch list work to extend your last work or furnishing dates. Caution: Payment Bonds on private jobs do not allow this extension. Rely on your last substantial furnishing on private bonded jobs.
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