Mechanic Lien Need to be filed Properly or they are Defective
Contractors and subcontractors have likely learned of the dramatic changes to Iowas mechanics lien law that became effective January 1, 2013. Under the 2013 law mechanic liens are no longer be filed with the county clerk of court.
All mechanics liens must be filed with the Secretary of State, preferably via the new online system. Liens on both residential and commercial projects must be filed with the Secretary of State.
As to liens that are to be filed on residential construction, within 10 days of the commencement of a residential project, a general contractor must post a commencement notice on the Secretary of States website. This notice filing is to contain basic information about the nature of the project, the projects address, contractors name, and other information. If a general contractor fails to post the notice within ten days of commencing work then the general contractor forfeits his or her right to a mechanics lien. When a general contractor hires a subcontractor to perform work on a residential project, the subcontractor must first run a search through the mechanics lien database on the Secretary of States website for the specific project the subcontractor will be working on. The subcontractor must then complete a short form linking the subcontractor to the project; a preliminary notice. The preliminary notice should be posted as soon as the subcontractor commences work. If the subcontractor fails to post a preliminary notice with the Secretary of State before final payment is made on the project, then the subcontractor will forfeit the opportunity to perfect a mechanics lien.
This new rule means that suppliers providing materials for the beginning of a project will have a lot longer to post a preliminary notice than subcontractors doing finishing work such as landscaping. Once a subcontractor posts a preliminary notice, his or her option to perfect a mechanics lien is protected. If the subcontractor needs to perfect a mechanics lien then he or she still has 90 days from the end of the project to perfect. Perfection should also be done online. The Secretary of State does provide an option to post and perfect by mailing a paper form. However, using a paper form has drawbacks. Mechanics lien priority is determined by the order that the liens are posted to the online Secretary of State database. When a subcontractor posts or perfects a lien through the website then the lien is placed in the database instantly. In contrast, paper filings must first arrive at the Secretary of State. Then, a Secretary of State employee must manually enter the information before it posts to the database process that could take up to three days from the date the filing arrives at the Secretary of States office. The key points for contractors remember are:
1. Within 10 days of commencing work on a residential project a general contractor must post a commencement notice on the Secretary of States website. The general contractor needs to receive a Mechanics Notice and Lien Registry (MNLR) number and the should provide that number to all subcontractors.
2. When a subcontractor starts work on a project the subcontractor must search for the general contractors commencement notice and then post a preliminary notice for the subcontractors work. The subcontractor can either use the general contractors MNLR number, or the projects address to find the general contractors commencement notice;
3. If the general contractor has not posted a commencement notice then the subcontractor must post a commencement notice before posting a preliminary notice. The subcontractors preliminary notice can be converted into a mechanics lien if the subcontractor needs to perfect a lien.
4. Priority of mechanics liens is determined by the order they are entered into the database;
1. A general contractor on a commercial project does not have to post a commencement notice on the Secretary of States website;
2. A subcontractor does not have to post a preliminary notice on the Secretary of States website;
3. The old rules for filing mechanics liens on commercial projects still apply with one critical exceptionliens must be filed with the Secretary of State, preferably using the online system.
At a minimum, every contractor should get on the Secretary of States website and create a username and password. As always, contractors and subcontractors should consult legal counsel with specific questions regarding the mechanics lien law changes.