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Deadlines for Mechanics’ Liens and Construction Liens: Mississippi

For contractors and subcontractors, late payments can be an all-too-familiar part of the construction industry. Many assume the best of intentions—maybe the check is still in the mail? Maybe there was an emergency around-the-clock project? When it eventually becomes clear there is a problem, many will still try to work it out themselves. But all the while, the deadlines for establishing liens on the project rapidly approach.

Mechanics’ liens allow contractors, subcontractors, suppliers, and other construction professionals to lien on a construction project for which they have not been paid. Mechanics’ liens function synonymously with materialmen’s liens (which are for suppliers of building materials or equipment) and may also simply be called “construction liens” depending on the state.

Every state has different mechanics’ lien statutes, and in a city like Memphis where the metropolitan area extends over three states, it can be a confusing maze of deadlines and time windows. Missing a filing deadline by one day can mean the extinguishment of any lien rights. Similarly, commercial owners with properties in multiple states are often left wondering whether it was Arkansas or Mississippi that requires a pre-work notice of lien rights from the contractors (hint: it’s neither for commercial projects).

This series discusses some of the different deadlines and filings for mechanics’ liens. It is important to note that many of the statutes have specific requirements for the content of the notices and how they are filed or served. Each state has nuanced differences, but all require strict conformity with the statutes to create enforceable liens.

Mississippi’s Statutes

Mississippi statutes use the term “construction lien” instead of the common “mechanics’ lien” or “materialmen’s lien.” Miss. Code Ann. § 85-7-405(2)(a).

Contractors

If you are a contractor, the process is relatively straight forward compared to other states, and you do not need to file or serve any notices prior to beginning work.

Within 90 days of the final day you furnished labor or materials, you simply file a Claim of Lien with the chancery court clerk’s office. Miss. Code Ann. § 85-7-405(1)(b).

Following this filing, you must commence the lawsuit to enforce the lien within 180 days, or the lien expires. Miss. Code Ann. § 85-7-423. But if the owner files a Notice of Contest of Lien after you filed your Claim, then you must commence the lawsuit within 90 days of the owner’s filing. Id.

Unlike other states, Mississippi does not use the normal system of attachment and perfection in determining lien priority; instead, all construction liens on a project share equal priority with each other. Miss. Code Ann. § 85-7-405(3)(d).

Subcontractors

If you are a subcontractor, you do not have to give any pre-work notices in Mississippi to preserve your lien rights. This is the same as with general contractors.

If you are a subcontractor on a residential project and have not been paid, you must give a Pre-Lien Notice to Owner that gives the owner 10 days to pay before you proceed with a lien.  Miss. Code Ann. § 85-7-409. This only applies to residential projects, and you are not required to give a Pre-Lien Notice to Owner for commercial projects.

Within 90 days of the final day you furnished labor or materials (and 10 days after the Pre-Lien Notice to Owner in residential projects), you must file a Claim of Lien with the chancery court clerk’s office. Miss. Code Ann. § 85-7-405(1)(b). Following this filing, you must commence the lawsuit to enforce the lien within 180 days, or the lien expires. Miss. Code Ann. § 85-7-423. But if the owner files a Notice of Contest of Lien after you filed your Claim, then you must commence the lawsuit within 90 days of the owner’s filing. Id.

Unlike other states, Mississippi does not use the normal system of attachment and perfection in determining lien priority; instead, all construction liens on a project share equal priority with each other. Miss. Code Ann. § 85-7-405(3)(d).

Sub-subcontractor

If you are a subcontractor on a commercial project who does not have a contract directly with the general contractor (i.e., you are a sub-subcontractor), then you have an additional notice requirement. Within 30 days of beginning work, you must give the general contractor written notice that details your contact information, a description of your work, and your anticipated costs. If you fail to give this notice, you forfeit all your lien rights. Miss. Code Ann. § 85-7-407(2). Note that you are not required to deliver this notice in residential projects, because there you are required to give the 10-day Pre-Lien Notice to Owner.

Owner

For Mississippi owners, as with all states, one of your primary defenses is the strict time window. Any notice requirements or filings that are not timely can be grounds for extinguishing the lien.

If contractors or subcontractors file a Claim of Lien, you can shorten the time window for them to commence the lawsuit by filing a Notice of Contest of Lien. Originally, contractors and subcontractors have 180 days from the date they filed their Claim of Lien to commence the lawsuit. After your Notice of Contest of Lien, contractors and subcontractors only have 90 days from the date of your filing to commence the lawsuit. Miss. Code Ann. § 85-7-423. The lien expires if no lawsuit is filed within the 90-day window. Miss. Code Ann. § 85-7-423.