Mississippi – Affidavit of Non-Payment
When a lien waiver is executed and no payment is received, lien rights can be maintained by either filing a lien or filing a statutory affidavit of nonpayment with 60 days of the lien waiver date.
Per statute: (iii) Sixty (60) days after the date of the execution of the waiver and release, unless before the expiration of the sixty-day period the claimant files in the county in which the property is located an affidavit of non-payment or a claim of lien, using substantially the affidavit of nonpayment form set forth in Section 85-7-433(3), and sends a true and accurate copy of the affidavit of nonpayment to the owner of the property in the manner provided in Section 85-7-405 for sending a notice of a claim of lien to the owner.
(c) A claimant who is paid, in full, the amount set forth in the waiver and release form after filing an affidavit of nonpayment shall upon request execute in recordable form an affidavit swearing that payment in full has been received. Upon recordation thereof in the county in which the affidavit of nonpayment was recorded, the affidavit of nonpayment to which it relates shall be deemed void.
(d) Nothing in this section shall shorten the time within which to file a claim of lien.
- A right to claim a lien or to claim upon a bond may not be waived in advance of furnishing of labor, services or materials. Any purported waiver or release of lien,
bond claim or this article executed or made in advance of furnishing labor, services or materials is null, void and unenforceable. Section 85‐7‐419
- There is a possibility lien rights can be impliedly waived in a pay-if-paid clause.
- "Paid if Paid" is enforced if explicit.
- "Pay when Paid" suggests time for payment.
- Pay-when-paid clause in the subcontract or purchase order does not create a condition precedent to payment.
Regarding retainage, Prompt pay and retainage is covered under MS 31-5-25 which is attached. There were no changes related to retainage.
- Retainage may not exceed 5 percent. MISS. CODE ANN. § 31-5-33(1). On contracts valued in excess of $250,000, retainage is 5 percent until the job is 50 percent complete. At that point, if the work is satisfactory, the rate reduces to 2.5 percent and half of the withheld funds are to be returned to the contractor to be disbursed to the appropriate subcontractors and suppliers. The contractor may not withhold more from a subcontractor than the state withholds from the contractor. MISS. CODE ANN. § 31-5-33(1). The contractor may substitute securities in lieu of retention. MISS. CODE ANN. § 31-5-15. Section § 31-5-33 is not applicable to contracts held by the Mississippi Transportation Commission. MISS. CODE ANN. § 31-5-33(2). For county contracts exceeding $1,000, the county board of supervisors must retain between 2.5 percent and 10 percent. MISS. CODE ANN. § 19-13-15(1). For contracts exceeding $750,000, except for bridge or public road contracts, 10 percent shall be retained until the work is 50 percent complete. Thereafter, 50 percent of the retainage shall be returned to the contractor and 5 percent retainage shall be withheld. MISS. CODE ANN. § 19-13-15(3).
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