Mississippi Special Lien Statute for private projects means what it says about the time for filing a Notice of Lis Pendens

By: Christopher Solop

In April of 2014 the Mississippi legislature passed a bill that affords lien rights to certain parties for material and labor furnished for improvements to real property.  Miss. Code Ann. §§ 85-7-401 et seq.  There has been only one case rendered by the Mississippi Supreme Court interpreting the statute as to what it requires for proper initiation of a payment action to enforce a lien, KD Oak Grove, LLC v. Warren & Warren Asphalt Paving, LLC, 324 So.3d 1134 (2021).  This decision is short and to the point.   

Warren & Warren Paving, LLC (“Warren”) was a subcontractor to a general contractor on two separate properties on which Warren furnished labor and material.  The general contractor failed to pay Warren, and it filed liens against the properties.   Warren subsequently timely filed a payment action but neglected to also file a notice of lis pendens with the filing of the payment action as required by the statute.  Miss. Code Ann. § 85-7-405(1)(c)(i). The property owners filed a motion for summary judgment based upon Warren’s failure to comply with the statutory requirement for filing the lis pendens with the commencement of a payment action.  The motion was denied, and the owners appealed.  

The property owners argued that failing to file a notice of lis pendens with the commencement of the payment action rendered Warren’s liens unenforceable and ineffective. The Mississippi Supreme Court agreed, finding the language of the statute clear and unambiguous in its requirement to file a notice of lis pendens “with” the payment action. Therefore, it was found that Warren did not “ ‘make good a lien’ ” created in accordance with the special lien statute.

The requirements set forth in the new lien statute can be difficult to navigate.  If you are considering filing a lien you should consider securing the assistance of a construction attorney. 

Note:  There is currently an effort to amend the lien statute to permit the filing of the lis pendens notice within ninety (90) days of the commencement of an action to enforce the lien.  Until such legislation is passed and signed by the governor, attorneys need to follow the existing statutory requirements.