Louisiana Property Lien Statutes - Louisiana Mechanics Lien Law
The provisions of the Louisiana statutes that permit the filing of mechanics liens and materialman's liens can be found in Louisiana's Private Works Act, Louisiana Code § 4801 et. seq. The full text of Louisiana's Construction Lien Law is provided below, and has been updated as of 2011. To see a quick synopsis of the most important provisions, take a look at our Louisiana Frequently Asked Questions page.
[ § 4801. Improvement of Immovable by Owner; Privileges Securing the Improvement]
[ § 4803. Amounts Secured by Claims and Privileges]
[ § 4806. Owner Defined; Interest Affected]
[ § 4807. Contractor, General Contractor, Subcontractor Defined]
[ § 4811. Notice of a Contract with a General Contractor to be Filed]
[ § 4812. Bond Required; Terms and Conditions]
[ § 4813. Liability of the Surety]
[ § 4815. Escrow of Funds Due Under Contract; Procedures]
[ § 4820. Privileges; Effective Date]
[ § 4821. Ranking of Privileges]
[ § 4822. Preservation of Claims and Privileges]
[ § 4823. Extinguishment of Claims and Privileges]
[ § 4831. Filing; Where and How Made]
[ § 4832. Cancellation of Notice of Contract]
[ § 4833. Request to Cancel the Inscription of Claims and Privileges; Cancellation; Lis Pendens]
[ § 4834. Notice of Contract; Cessation of Effect, Reinscription]
[ § 4841. Enforcement of Claims and Privileges; Concursus]
[ § 4842. Delivery of Notice or Other Documents and Materials; Burden of Proof]
[ § 4854. Lien Rights Unaffected]
[ § 4855. Penalty for Violation]
§ 4801. Improvement of immovable by owner; privileges securing the improvement
(1) Contractors, for the price of their work.
(2) Laborers or employees of the owner, for the price of work performed at the site of the immovable.
(3) Sellers, for the price of movables sold to the owner that become component parts of the immovable, or are consumed at the site of the immovable, or are consumed in machinery or equipment used at the site of the immovable.
(4) Lessors, for the rent of movables used at the site of the immovable and leased to the owner by written contract.
(5) Registered or certified surveyors or engineers, or licensed architects, or their professional subconsultants, employed by the owner, for the price of professional services rendered in connection with a work that is undertaken by the owner. A “professional subconsultant” means a registered or certified surveyor or engineer or licensed architect employed by the prime professional, as described in this Paragraph. In order for the privilege of the professional subconsultant to arise, the subconsultant must give notice to the owner within thirty days after the date that the subconsultant enters into a written contract of employment. The notice shall include the name and address of the subconsultant, the name and address of his employer, and the general nature of the work to be performed by the subconsultant.
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§ 4802. Improvement of immovable by contractor; claims against the owner and contractor; privileges securing the improvement
A. The following persons have a claim against the owner and a claim against the contractor to secure payment of the following obligations arising out of the performance of work under the contract:
(1) Subcontractors, for the price of their work.
(2) Laborers or employees of the contractor or a subcontractor, for the price of work performed at the site of the immovable.
(3) Sellers, for the price of movables sold to the contractor or a subcontractor that become component parts of the immovable, or are consumed at the site of the immovable, or are consumed in machinery or equipment used at the site of the immovable.
(4) Lessors, for the rent of movables used at the site of the immovable and leased to the contractor or a subcontractor by written contract.
(5) Prime consultant registered or certified surveyors or engineers, or licensed architects, or their professional subconsultants, employed by the contractor or a subcontractor, for the price of professional services rendered in connection with a work that is undertaken by the contractor or subcontractor.
(a) A “professional subconsultant” means a registered or certified surveyor or engineer, or licensed architect employed by the prime consultant.
(b) For the privilege under this Subsection to arise, a prime consultant or professional subconsultant shall give written notice to the owner within thirty working days after the date that the prime consultant or professional subconsultant is employed. The notice shall include the name and address of the prime consultant or professional subconsultant, the name and address of his employer, and the general nature of the work to be performed by the prime consultant or professional subconsultant.
B. The claims against the owner shall be secured by a privilege on the immovable on which the work is performed.
C. The owner is relieved of the claims against him and the privileges securing them when the claims arise from the performance of a contract by a general contractor for whom a bond is given and maintained as required by R.S. 9:4812 and when notice of the contract with the bond attached is properly and timely filed as required by R.S. 9:4811.
D. Claims against the owner and the contractor granted by this Part are in addition to other contractual or legal rights the claimants may have for the payment of amounts owed them.
E. A claimant may assert his claim against either the contractor, his surety, or the owner without the joinder of the others. The claim shall not be subject to a plea of discussion or division.
F. A contractor shall indemnify the owner for claims against the owner arising from the work to be performed under the contract. A subcontractor shall indemnify the owner, the contractor, and any subcontractor from or through whom his rights are derived, for amounts paid by them for claims under this part arising from work performed by the subcontractor.
G. (1) For the privilege under this Section to arise, the lessor of the movables shall deliver a copy of the lease to the owner and to the contractor not more than ten days after the movables are first placed at the site of the immovable for use in a work.
(2) For the privilege under this Section or R.S. 9:4801(3) to arise, the seller of movables shall deliver a notice of nonpayment to the owner at least ten days before filing a statement of his claim and privilege. The notice shall be served by registered or certified mail, return receipt requested, and shall contain the name and address of the seller of movables, a general description of the materials provided, a description sufficient to identify the immovable property against which a lien may be claimed, and a written statement of the seller’s lien rights for the total amount owed, plus interest and recordation fees. The requirements of this Paragraph (G)(2) shall apply to a seller of movables sold for use or consumption in work on an immovable for residential purposes.
(3) In addition to the other provisions of this Section, if the seller of movables has not been paid by the subcontractor and has not sent notice of nonpayment to the general contractor and the owner, then the seller shall lose his right to file a privilege or lien on the immovable property. The return receipt indicating that certified mail was properly addressed to the last known address of the general contractor and the owner and deposited in the U.S. mail on or before seventy-five days from the last day of the month in which the material was delivered, regardless of whether the certified mail was actually delivered, refused, or unclaimed satisfies the notice provision hereof or no later than the statutory lien period, whichever comes first. The provisions of this Paragraph shall apply only to disputes arising out of recorded contracts.
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§ 4803. Amounts secured by claims and privileges
A. The privileges granted by R.S. 9:4801 and the claims granted by R.S. 9:4802 secure payment of:
(1) The principal amounts of the obligations described in R.S. 9:4801 and R.S. 9:4802(A), interest due thereon, and fees paid for filing the statement required by R.S. 9:4822.
(2) Expenses incurred by the claimant or other person having a privilege, for the cost of delivering movables that become component parts of the immovable, or are consumed at the site of the immovable, or are consumed in machinery or equipment used at the site of the immovable, if the amounts are owed by the owner, contractor, or subcontractor to the claimant or person having the privilege.
(3) Amounts owed under collective bargaining agreements with respect to a laborer’s or employee’s wages or other compensation for which a claim or privilege is granted and which are payable to other persons for vacation, health and welfare, pension, apprenticeship and training, supplemental unemployment benefits, and other fringe benefits considered as wages by the secretary of labor of the United States in determining prevailing wage rates, unless the immovable upon which the work is performed is designed or intended to be occupied primarily as a residence by four families or less. Trustees, trust funds, or other persons to whom the employer is to make such payments may assert and enforce claims for the amounts in the same manner and subject to the same procedures provided for other amounts due laborers or employees granted a claim or privilege under this Part.
B. The claim or privilege granted the lessor of a movable by R.S. 9:4801(4) or R.S. 9:4802(A)(4) is limited to and secures only that part of the rentals accruing during the time the movable is located at the site of the immovable for use in a work. A movable shall be deemed not located at the site of the immovable for use in a work after:
(1) The work is substantially completed or abandoned; or
(2) A notice of termination of the work is filed; or
(3) The lessee has abandoned the movable, or use of the movable in a work is completed or no longer necessary, and the owner or contractor gives written notice to the lessor of abandonment or completion of use.
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§ 4806. Owner defined; interest affected
A. An owner, co-owner, naked owner, owner of a predial or personal servitude, possessor, lessee, or other person owning or having the right to the use or enjoyment of an immovable or having an interest therein shall be deemed to be an owner.
B. The claims against an owner granted by R.S. 9:4802 are limited to the owner or owners who have contracted with the contractor or to the owner or owners who have agreed in writing to the price and work of the contract of a lessee, wherein such owner or owners have specifically agreed to be liable for any claims granted by the provisions of R.S. 9:4802. If more than one owner has contracted each shall be solidarily liable for the claims.
C. The privilege granted by R.S. 9:4801 and 4802 affects only the interest in or on the immovable enjoyed by the owner whose obligation is secured by the privilege.
D. The privilege granted by this Part upon a lessee’s rights in the lease or buildings and structures shall be inferior and subject to all of the rights of, or obligations owed to, the lessor, including the right to resolve the lease for nonperformance of its obligations, to execute upon the lessee’s rights and to sell them in satisfaction of the obligations free of the privilege. If a sale of the lease is made in execution of the claims of the lessor, the privilege attaches to that portion of the sale proceeds remaining after satisfaction of the claims of the lessor.
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§ 4807. Contractor, general contractor, subcontractor defined
A. A contractor is one who contracts with an owner to perform all or a part of a work.
B. A general contractor is a contractor:
(1) Who contracts to perform all or substantially all of a work; or
(2) Who is deemed to be a general contractor by R.S. 9:4808(B).
C. A subcontractor is one who, by contract made directly with a contractor, or by a contract that is one of a series of contracts emanating from a contractor, is bound to perform all or a part of a work contracted for by the contractor.
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§ 4808. Work defined
A. A work is a single continuous project for the improvement, construction, erection, reconstruction, modification, repair, demolition, or other physical change of an immovable or its component parts.
B. If written notice of a contract with a proper bond attached is properly filed within the time required by R.S. 9:4811, the work to be performed under the contract shall be deemed to be a work separate and distinct from other portions of the project undertaken by the owner. The contractor, whose notice of contract is so filed, shall be deemed a general contractor.
C. The clearing, leveling, grading, test piling, cutting or removal of trees and debris, placing of fill dirt, leveling of the land surface, demolition of existing structures, or performance of other work on land for or by an owner or the owner’s contractor, in preparation for the construction or erection of a building or other construction thereon to be substantially or entirely built or erected by a contractor, shall be deemed a separate work to the extent the preparatory work is not a part of the contractor’s work for the erection of the building or other construction. The privileges granted by this Part for the work described in this Subsection shall have no effect as to third persons acquiring rights in, to, or on the immovable before the statement of claim or privilege is filed.
D. This Part does not apply to:
(1) The drilling of any well or wells in search of oil, gas, or water, or other activities in connection with such a well or wells for which a privilege is granted by R.S. 9:4861.
(2) The construction or other work on the permanent bed and structures of a railroad for which a privilege is granted by R.S. 9:4901.
(3) Public works performed by the state or any state board or agency or political subdivision of the state.
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§ 4811. Notice of a contract with a general contractor to be filed
A. Written notice of a contract between a general contractor and an owner shall be filed as provided in R.S. 9:4831 before the contractor begins work, as defined by R.S. 9:4820, on the immovable. The notice:
(1) Shall be signed by the owner and contractor.
(2) Shall contain the legal property description of the immovable upon which the work is to be performed and the name of the project.
(3) Shall identify the parties and give their mailing addresses.
(4) Shall state the price of the work or, if no price is fixed, describe the method by which the price is to be calculated and give an estimate of it.
(5) Shall state when payment of the price is to be made.
(6) Shall describe in general terms the work to be done.
B. A notice of contract is not improperly filed because of an error in or omission from the notice in the absence of a showing of actual prejudice by a claimant or other person acquiring rights in the immovable. An error or omission of the identity of the parties or their mailing addresses or the improper identification of the immovable shall be prima facie proof of actual prejudice.
C. A notice of contract is not improperly filed because a proper bond is not attached.
D. A general contractor shall not enjoy the privilege granted by R.S. 9:4801 if the price of the work stipulated or reasonably estimated in his contract exceeds twenty-five thousand dollars unless notice of the contract is timely filed.
E. If a notice of contract is mutually released by the owner and contractor, then the contract will have no effect, provided no work has begun on the land or materials placed on the site. The recorder of mortgages shall immediately cancel the contract upon the filing of the mutual release and an affidavit made by a registered or certified engineer or surveyor, licensed architect, or building inspector employed by the city or parish or by a lending institution chartered under federal or state law, that states he inspected the immovable at a specified time subsequent to the filing of the contract and work had not been commenced and no materials placed at the site. If the contract, or a certified copy, is then refiled, the refiling date shall become the effective date for privilege for work done pursuant to the contract in accordance with R.S. 9:4820(A)(1).
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§ 4812. Bond required; terms and conditions
A. To be entitled to the benefits of the provisions of R.S. 9:4802(C), every owner shall require a general contractor to furnish and maintain a bond of a solvent, legal surety for the work to be performed under the contract. The bond shall be attached to the notice of the contract when it is filed.
B. The amount of the bond shall not be less than the following amounts or percentages of the price of the work stipulated or estimated in the contract:
(1) If the price is not more than ten thousand dollars the amount of the bond shall be one hundred percent of the price.
(2) If the price is more than ten thousand dollars but not more than one hundred thousand dollars the amount of the bond shall be fifty percent of the price, but not less than ten thousand dollars.
(3) If the price is more than one hundred thousand dollars but not more than one million dollars the amount of the bond shall be thirty-three and one-third percent of the price, but not less than fifty thousand dollars.
(4) If the price is more than one million dollars the amount of the bond shall be twenty-five percent of the price, but not less than three hundred thirty-three thousand three hundred thirty-three dollars.
C. The condition of the bond shall be that the surety guarantees:
(1) To the owner and to all persons having a claim against the contractor, or to whom the contractor is conventionally liable for work done under the contract, the payment of their claims or of all amounts owed them arising out of the work performed under the contract to which it is attached or for which it is given.
(2) To the owner, the complete and timely performance of the contract unless such guarantee is expressly excluded by the terms of the bond.
D. The bond of a legal surety attached to and filed with the notice of contract of a general contractor shall be deemed to conform to the requirements of this part notwithstanding any provision of the bond to the contrary, but the surety shall not be bound for a sum in excess of the total amount expressed in the bond.
E. The bond given in compliance with this Part shall be deemed to include the following conditions:
(1) Extensions of time for the performance of the work shall not extinguish the obligation of the surety but the surety who has not consented to the extensions has the right of indemnification under the original terms of the contract as provided by Article 3057 of the Civil Code.1
(2) No other amendment to the contract, or change or modification to the work, or impairment of the surety’s rights of subrogation made without the surety’s consent shall extinguish the obligations of the surety, but if the change or action is materially prejudicial to the surety, the surety shall be relieved of liability to the owner, and shall be indemnified by the owner, for any loss or damage suffered by the surety.
(3) A payment by the owner to the contractor before the time required by the contract shall not extinguish the obligation of the surety, but the surety shall be relieved of liability to the owner, and shall be indemnified by the owner for any loss or damage suffered by the surety.
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§ 4813. Liability of the surety
A. The surety is liable without benefit of discussion or division.
B. If the total amount owed to persons to whom the surety is liable exceeds the total amount of the bond, the surety’s liability shall be discharged in the following order:
(1) First, and pro rata, to persons who preserve their claims in the manner required by R.S. 9:4822.
(2) Second, and in the order in which they present their obligations to the surety, to persons who do not preserve their claims as required by R.S. 9:4822 but to whom the contractor is otherwise liable.
(3) Third, to the owner.
C. The liability of the surety is not extinguished by a deficiency in the amount of the bond, the failure to attach the bond to the notice of contract, or the failure to file the notice as required by R.S. 9:4811.
D. An action shall not be brought against a surety, other than by the owner, before the expiration of the time specified by R.S. 9:4822 for claimants to file statements of their claims, unless a statement of the claim in the form required by R.S. 9:4822(G) is delivered to the surety at least thirty days prior to the institution of the action.
E. The surety’s liability, except as to the owner, is extinguished as to all persons who fail to institute an action asserting their claims or rights against the owner, the contractor, or the surety within one year after the expiration of the time specified in R.S. 9:4822 for claimants to file their statement of claim or privilege.
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§ 4814. Contractors; misapplication of payments prohibited; civil penalties; payment of claims, attorney fees and costs
A. No contractor, subcontractor, or agent of a contractor or subcontractor, who has received money on account of a contract for the construction, erection, or repair of a building, structure, or other improvement, including contracts and mortgages for interim financing, shall knowingly fail to apply the money received as necessary to settle claims to sellers of movables or laborers due for the construction or under the contract. Any seller of movables or laborer whose claims have not been settled may file an action for the amount due, including reasonable attorney fees and court costs, and for civil penalties as provided in this Section.
B. When the amount misapplied is one thousand dollars or less, the civil penalties shall be not less than two hundred fifty dollars nor more than seven hundred fifty dollars.
C. When the amount misapplied is greater than one thousand dollars, the civil penalties shall be not less than five hundred dollars nor more than one thousand dollars, for each one thousand dollars in misapplied funds.
D. A contractor, subcontractor, or agent of a contractor or subcontractor who is found by the court to have knowingly failed to apply construction contract payments as required in Subsection A shall be ordered by the court to pay to plaintiff the penalties provided in Subsection B or C, as may be applicable, and the amount due to settle the claim, including reasonable attorney fees and court costs.
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§ 4815. Escrow of funds due under contract; procedures
A. When, under the provisions of this Part, a contract in the amount of fifty thousand dollars or more is entered into between an owner and a contractor and if in accordance with the terms of such contract funds earned by the contractor are withheld as retainage by the owner from periodic payments due to the contractor then such funds shall be deposited by the owner into an interest bearing escrow account. The provisions of this Section shall not apply to a contract for a single family residence or double family residence. The provisions of this Section also shall not apply to a contract for the construction or improvement of the following types of industrial facilities that are, or will be, engaged in activities defined or classified under one or more of the following subsectors, industry groups, or industries of the 1997 North American Industry Classifications System (NAICS):
(1) 22111 electric power generation.
(2) 321 wood products manufacturing.
(3) 322 paper manufacturing.
(4) 324 petroleum and coal products manufacturing.
(5) 325 chemical manufacturing.
(6) 326 plastics and rubber products manufacturing.
(7) 331 primary metals manufacturing.
(8) 562211/562212 hazardous and solid waste landfills.
(9) 422710 bulk stations and materials.
(10) 486110 crude oil pipelines.
(11) 486910 refined petroleum products pipelines.
(12) 486210 natural gas pipelines.
(13) 486990 other pipelines.
(14) 211112 natural gas processing plants.
B. An escrow account under the provisions of this Section shall be located at a qualified financial institution and shall be under the control of an escrow agent. The escrow account and escrow agent shall be selected by mutual agreement between the owner and the contractor.
C. Upon completion of the work that is the subject of the contract, the funds, including any interest located in the escrow account shall be released from escrow under the following conditions:
(1) If there are no existing claims by the owner, the whole amount shall be paid to the contractor within three business days upon receipt by the escrow agent of a written release signed by the contractor and the owner.
(2) If there is a dispute between the owner and contractor and the contract does not provide for binding arbitration of such dispute:
(a) Undisputed amounts shall be released by the escrow agent within three business days of receipt of a notarized request of the contractor.
(b) Disputed amounts that are the subject of a judicial proceeding shall be released by the escrow agent within three business days of the receipt of a final order by the court. Upon receipt of the order of the court, the escrow agent shall pay the contractor or owner such amounts as are determined by the court.
(3) If there is a dispute between the owner and contractor and the contract provides for binding arbitration of such dispute, the following shall occur:
(a) Undisputed amounts shall be released by the escrow agent within three business days of receipt of a notarized request of the contractor.
(b) Disputed amounts that are the subject of binding arbitration under the contract shall be released by the escrow agent within three business days of the receipt of a final order by the arbitrator who has been selected by mutual agreement between the owner and the contractor. Upon receipt of the order of the arbitrator, the escrow agent shall pay the contractor or owner such amounts as are determined by the arbitrator under the rules as defined in the contract between the owner and the contractor.
D. Receipt by the escrow agent or the qualified financial institution in which the escrow account is maintained of what purports to be a written release signed by the contractor and owner, or an order by a court or arbitrator, shall be a full release and discharge of the escrow agent for transfer of funds to the contractor. Neither the escrow agent nor the qualified financial institution in which the escrow account is maintained shall be held liable to any party based on any claim that the written release is unauthorized, forged, or otherwise fraudulent.
E. Neither the escrow agent nor the qualified financial institution in which the escrow account is maintained pursuant to the provisions of this Section shall have any liability to the owner, contractor, or any other person when complying with the provisions of this Section.
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§ 4820. Privileges; effective date
A. The privileges granted by this Part arise and are effective as to third persons when:
(1) Notice of the contract is filed as required by R.S. 9:4811; or
(2) The work is begun by placing materials at the site of the immovable to be used in the work or conducting other work at the site of the immovable the effect of which is visible from a simple inspection and reasonably indicates that the work has begun. For these purposes, services rendered by a surveyor, architect, or engineer, or the driving of test piling, cutting or removal of trees and debris, placing of fill dirt, demolition of existing structures, or leveling of the land surface shall not be considered, nor shall the placing of materials having an aggregate price of less than one hundred dollars on the immovable be considered. For these purposes, the site of the immovable is defined as the area within the boundaries of the property.
B. If the work is for the addition, modification, or repair of an existing building or other construction, that part of the work performed before a third person’s rights become effective shall, for the purposes of R.S. 9:4821, be considered a distinct work from the work performed after such rights become effective if the cost of the work done, in labor and materials, is less than one hundred dollars during the thirty-day period immediately preceding the time such third person’s rights become effective as to third persons.
C. A person acquiring or intending to acquire a mortgage, privilege, or other right, in or on an immovable may conclusively rely upon an affidavit made by a registered or certified engineer or surveyor, licensed architect, or building inspector employed by the city or parish or by a lending institution chartered under federal or state law, that states he inspected the immovable at a specified time and work had not then been commenced nor materials placed at its site, provided the affidavit is filed within four business days after the execution of the affidavit, and the mortgage, privilege, or other document creating the right is filed before or within four business days of the filing of the affidavit. The correctness of the facts recited in the affidavit may not be controverted to affect the priority of the rights of the person to whom or for whom it is given, unless actual fraud by such person is proven. A person who gives a false or fraudulent affidavit shall be responsible for any loss or damage suffered by any person whose rights are adversely affected.
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§ 4821. Ranking of privileges
The privileges granted by R.S. 9:4801 and 4802 rank among themselves and as to other mortgages and privileges in the following order of priority:
(1) Privileges for ad valorem taxes or local assessments for public improvements against the property, liens and privileges granted in favor of parishes for reasonable charges imposed on the property under R.S. 33:1236, liens and privileges granted in favor of municipalities for reasonable charges imposed on property under R.S. 33:4752, 4753, 4754, 4766, 5062, and 5062.1, and liens and privileges granted in favor of a parish or municipality for reasonable charges imposed on the property under R.S. 13:2575 are first in rank and concurrent regardless of the dates of recordation or notation of such liens and privileges in any public record, public office, or public document.
(2) Privileges granted by R.S. 9:4801(2) and R.S. 9:4802(A)(2) rank next and equally with each other.
(3) Bona fide mortgages or vendor’s privileges that are effective as to third persons before the privileges granted by this Part are effective rank next and in accordance with their respective rank as to each other.
(4) Privileges granted by R.S. 9:4801(3), R.S. 9:4801(4) and by R.S. 9:4802(A)(1), R.S. 9:4802(A)(3), and R.S. 9:4802(A)(4) rank next and equally with each other.
(5) Privileges granted by R.S. 9:4801(1) and R.S. 9:4801(5) rank next and equally with each other.
(6) Other mortgages or privileges rank next and in accordance with their respective rank as to each other.
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§ 4822. Preservation of claims and privileges
A. If a notice of contract is properly and timely filed in the manner provided by R.S. 9:4811, the persons to whom a claim or privilege is granted by R.S. 9:4802 shall within thirty days after the filing of a notice of termination of the work:
(1) File a statement of their claims or privilege.
(2) Deliver to the owner a copy of the statement of claim or privilege. If the address of the owner is not given in the notice of contract, the claimant is not required to deliver a copy of his statement to the owner.
B. A general contractor to whom a privilege is granted by R.S. 9:4801 of this Part, and whose privilege has been preserved in the manner provided by R.S. 9:4811, shall file a statement of his privilege within sixty days after the filing of the notice of termination or substantial completion of the work.
C. Those persons granted a claim and privilege by R.S. 9:4802 for work arising out of a general contract, notice of which is not filed, and other persons granted a privilege under R.S. 9:4801 or a claim and privilege under R.S. 9:4802 shall file a statement of their respective claims and privileges within sixty days after:
(1) The filing of a notice of termination of the work; or
(2) The substantial completion or abandonment of the work, if a notice of termination is not filed.
D. (1) Notwithstanding the other provisions of this Part, the time for filing a statement of claim or privilege to preserve the privilege granted by R.S. 9:4801(5) expires sixty days after the latter of:
(a) The filing of a notice for termination of the work that the services giving rise to the privilege were rendered; or,
(b) The substantial completion or abandonment of the work if a notice of termination is not filed. This privilege shall have no effect as to third persons acquiring rights in, to, or on the immovable before the statement of claim or privilege is filed.
(2) Notwithstanding the provisions of this Part, the seller of movables sold for use or consumption in work on an immovable for residential purposes, if a notice of contract is not filed, shall file a statement of claim or privilege within seventy days after:
(a) The filing of a notice of termination of the work; or
(b) The substantial completion or abandonment of the work, if a notice of termination is not filed.
E. A notice of termination of the work:
(1) Shall reasonably identify the immovable upon which the work was performed and the work to which it relates. If the work is evidenced by notice of a contract, reference to the notice of contract as filed or recorded, together with the names of the parties to the contract, shall be deemed adequate identification of the immovable and work.
(2) Shall be signed by the owner or his representative, who contracted with the contractor, or, if the owner has conveyed the immovable, then it may also be signed by the new owner, or his representative.
(3) Shall certify that:
(a) The work has been substantially completed; or
(b) The work has been abandoned by the owner; or
(c) A contractor is in default under the terms of the contract.
(4) Shall be conclusive of the matters certified if it is made in good faith by the owner, his representative, or his successor.
F. A notice of termination or substantial completion may be filed from time to time with respect to a specified portion or area of work. In that case, the time for preserving privileges or claims as specified in Subsection A or C of this Section shall commence with the filing of the notice of termination or substantial completion as to amounts owed and arising from the work done on that portion or area of the work described in the notice of termination. This notice shall identify the portion or area of the land and certify that the work performed on that portion of the land is substantially completed or has been abandoned. Once the period for preserving claims and privileges has expired and no liens have been timely filed, the portion or area of work described in the notice of termination shall be free of the claims and privileges of those doing work on the area described in the notice of termination, as well as those doing work elsewhere on the immovable being improved.
G. A statement of a claim or privilege:
(1) Shall be in writing.
(2) Shall be signed by the person asserting the same or his representative.
(3) Shall reasonably identify the immovable with respect to which the work was performed or movables or services were supplied or rendered and the owner thereof.
(4) Shall set forth the amount and nature of the obligation giving rise to the claim or privilege and reasonably itemize the elements comprising it including the person for whom or to whom the contract was performed, material supplied, or services rendered.
H. A work is substantially completed when:
(1) The last work is performed on, or materials are delivered to the site of the immovable or to that portion or area with respect to which a notice of partial termination is filed; or
(2) The owner accepts the improvement, possesses or occupies the immovable, or that portion or area of the immovable with respect to which a notice of partial termination is filed, although minor or inconsequential matters remain to be finished or minor defects or errors in the work are to be remedied.
I. A work is abandoned by the owner if he terminates the work and notifies persons engaged in its performance that he no longer desires to continue it or he otherwise objectively and in good faith manifests the abandonment or discontinuance of the project.
J. Before any person having a direct contractual relationship with a subcontractor, but no contractual relationship with the contractor, shall have a right of action against the contractor or surety on the bond furnished by the contractor, he must record his claim as provided in this Section and give written notice to the contractor within thirty days from the recordation of notice of termination of the work, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor or service was done or performed. Such notice shall be served by mailing the same by registered or certified mail, postage prepaid, in an envelope addressed to the contractor at any place he maintains an office in the state of Louisiana.
K. (1) Any person to whom a privilege is granted by R.S. 9:4802 may give notice to the owner of an obligation to that person arising out of the performance of work under the contract. The notice shall be given prior to:
(a) The filing of a notice of termination of the work; or
(b) The substantial completion or abandonment of the work, if a notice of termination is not filed.
(2) The method of notice shall be under R.S. 9:4842(A). The notice shall set forth the nature of the work or services performed by the person to whom the obligation is owed and shall include his mailing address.
L. (1) When notice under Subsection K has been given by a person to the owner, the owner shall notify that person as required by R.S. 9:4842(A) within three days of:
(a) Filing a notice of termination of the work; or
(b) The substantial completion or abandonment of the work, if a notice of termination is not filed.
(2) The owner who fails to give notice to the person under the provisions of this Subsection within ten days of commencement of the period for preservation of claims and privileges shall be liable for all costs and attorney’s fees for the establishment and enforcement of the claim or privilege.
M. (1) The contractor may elect to furnish at the contractor’s cost and without off-set of the cost against the retainage amount a retainage bond equal to and in lieu of the amount of the retainage required by the contract whenever a contract between an owner and a contractor for the construction, alteration, or repair of any work requires the withholding of sums for retainage until after the recordation of formal acceptance of such work, or notice of default by the contractor or subcontractor, or substantial completion, or final payment exclusive of nonconforming work.
(2) If the contractor elects to furnish a retainage bond, it shall be in a form designated by the contracting agency from a surety, within their underwriting limits, with at least an A- rating in the latest printing of the A.M. Best’s Key Rating Guide.
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§ 4823. Extinguishment of claims and privileges
A. A privilege given by R.S. 9:4801, a claim against the owner and the privilege securing it granted by R.S. 9:4802, or a claim against the contractor granted by R.S. 9:4802 is extinguished if:
(1) The claimant or holder of the privilege does not preserve it as required by R.S. 9:4822; or
(2) The claimant or holder of the privilege does not institute an action against the owner for the enforcement of the claim or privilege within one year after the expiration of the time given by R.S. 9:4822 for filing the statement of claim or privilege to preserve it; or
(3) The obligation which it secures is extinguished.
B. A claim against a contractor granted by R.S. 9:4802 is not extinguished by the failure to file a statement of claim or privilege as required by R.S. 9:4822 if a statement of the claim or privilege is delivered to the contractor within the period allowed for its filing by R.S. 9:4822. The failure to file an action against the owner as required by R.S. 9:4823(A)(2) shall not extinguish a claim against a contractor if an action for the enforcement of the claim is instituted against the contractor or his surety within one year after the expiration of the time given by R.S. 9:4822 for filing the statement of claim or privilege to preserve it.
C. The extinguishment of a claim or privilege shall not affect other rights the claimant or privilege holder may have against the owner, the contractor, or the surety.
D. A privilege granted by this Part is extinguished if a bond is filed by the owner as provided by R.S. 9:4835.
E. A claim against the owner and the privilege securing it granted by this Part are extinguished if a bond is filed by the contractor as provided by R.S. 9:4835.
F. In a concursus proceeding brought under R.S. 9:4841, the joinder of the owner and a person who has a privilege or a claim against the owner, or the joinder of the contractor or surety and a person who has a claim against the contractor constitutes the institution of an action for the enforcement of the claim or privilege against the owner, contractor, or surety as the case may be.
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§ 4831. Filing; where and how made
A. The filing of a notice of contract, notice of termination, statement of a claim or privilege, or notice of lis pendens required or permitted to be filed under the provisions of this Part is accomplished when it is filed for registry with the recorder of mortgages of the parish in which the work is to be performed. The recorder of mortgages shall inscribe all such acts in the mortgage records.
B. For purposes of this Part, the recorder of mortgages includes the office of the clerk of court and ex officio recorder of mortgages.
C. Each filing made with the recorder of mortgages pursuant to this Part which contains a reference to immovable property shall contain a description of the property sufficient to clearly and permanently identify the property. A description which includes the lot and/or square and/or subdivision or township and range shall meet the requirement of this Subsection. Naming the street or mailing address without more shall not be sufficient to meet the requirements of this Subsection.
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§ 4832. Cancellation of notice of contract
A. The recorder of mortgages shall cancel from his records a notice of contract upon written request of any person made more than thirty days after the filing of a notice of termination of work performed under the contract if:
(1) A statement of claim or privilege with respect to the work was not filed within the thirty day period; and
(2) The request contains or has attached to it the written concurrence of the contractor or a written receipt from the contractor acknowledging payment in full of all amounts due under the contract.
B. If the request for cancellation of a notice of contract does not contain or is not accompanied by the written concurrence or receipt of the contractor, but a statement of claim or privilege was not filed within the thirty day period, the recorder of mortgages shall cancel the notice of contract as to all claims and privileges except that of the contractor. The recorder of mortgages shall completely cancel the notice of contract from his records upon written request of any person if:
(1) The request is made more than sixty days after the filing of the notice of termination and the contractor did not file a statement of his claim or privilege within that time; or
(2) The request contains or is accompanied by the written concurrence of or a written receipt from the contractor acknowledging payment in full of all amounts due under the contract.
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§ 4833. Request to cancel the inscription of claims and privileges; cancellation; lis pendens
A. If a statement of claim or privilege is improperly filed or if the claim or privilege preserved by the filing of a statement of claim or privilege is extinguished, an owner or other interested person may require the person who has filed a statement of the claim or privilege to give a written request for cancellation in the manner provided by law directing the recorder of mortgages to cancel the statement of claim or privilege from his records. The request shall be delivered within ten days after a written request for it is received by the person filing the statement of claim or privilege.
B. One who, without reasonable cause, fails to deliver a written request for cancellation in proper form to cancel the claim or privilege as required by Subsection A of this Section shall be liable for damages suffered by the owner or person requesting the authorization as a consequence of the failure and for reasonable attorney fees incurred in causing the statement to be cancelled.
C. A person who has properly requested a written request for cancellation shall have an action pursuant to R.S. 44:114 against the person required to deliver the written request to obtain a judgment declaring the claim or the privilege extinguished and directing the recorder of mortgages to cancel the statement of claim or privilege if the person required to give the written request fails or refuses to do so within the time required by Subsection A of this Section. The plaintiff may also seek recovery of the damages and attorney fees to which he may be entitled under this Section.
D. The recorder of mortgages shall cancel a statement of a claim or privilege from his records upon the filing with him by any person of a written request for cancellation in proper form or when he is ordered to do so by judgment of the court.
E. The effect of filing for recordation of a statement of claim or privilege and the privilege preserved by it shall cease as to third persons unless a notice of lis pendens identifying the suit required to be filed by R.S. 9:4823 is filed within one year after the date of filing the claim or privilege. In addition to the requirements of Article 3752 of the Code of Civil Procedure, the notice of lis pendens shall contain a reference to the notice of contract, if one is filed, or a reference to the recorded statement of claim or privilege if a notice of contract is not filed.
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§ 4834. Notice of contract; cessation of effect, reinscription
The effect of filing a notice of contract ceases five years after it is filed, unless a written request for its reinscription, in the manner provided for the reinscription of mortgages, is properly and timely made by an interested person to the recorder of mortgages in whose office the notice of contract is filed. A request for reinscription may not be made after the effect of the filing of the notice of the contract has ceased. The effect of reinscription shall cease five years after the request for reinscription is filed.
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§ 4835. Filing of bond or other security; cancellation of statement of claim or privilege or notice of lis pendens
A. If a statement of claim or privilege or a notice of lis pendens is filed, any interested party may deposit with the recorder of mortgages either a bond of a lawful surety company authorized to do business in the state or cash, certified funds, or a federally insured certificate of deposit to guarantee payment of the obligation secured by the privilege or that portion as may be lawfully due together with interest, costs, and attorney’s fees to which the claimant may be entitled up to a total amount of one hundred twenty-five percent of the principal amount of the claim as asserted in the statement of claim or privilege or such a suit. A surety shall not have the benefit of division or discussion.
B. If the recorder of mortgages finds the amount of the cash, certified funds, or certificate of deposit or the terms and amount of a bond deposited with him to be in conformity with this Section, he shall note his approval on the bond and make note of either the bond or of the cash, certified funds, or certificate of deposit in the margin of the statement of claim or privilege or notice of lis pendens as it is recorded in the mortgage records and cancel the statement of claim or privilege or the notice of lis pendens from his records by making an appropriate notation in the margin of the recorded statement or notice. The bond shall not be recorded but shall be retained by the recorder of mortgages as a part of his records.
C. Any party who files a bond or other security to guarantee payment of an obligation secured by a privilege in accordance with the provisions of R.S. 9:4835(A) shall give notice to the owner of the immovable, the holder of the lien, and the contractor of the improvements to the immovable by certified mail to the address of the immovable or to the lienholder’s address in the case of notice to the lienholder.
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§ 4841. Enforcement of claims and privileges; concursus
A. After the period provided by R.S. 9:4822 for the filing of statements of claims or privileges has expired, the owner or any other interested party may convoke a concursus and shall cite all persons who have preserved their claims against the owner or their privileges on the immovable, and shall cite the owner, the contractor and the surety if they are not otherwise parties to establish the validity and rank of their claims and privileges.
B. The owner who convokes or is made a party to the concursus may deposit into the registry of the court the amounts owed by him to the contractor.
C. The owner may by rule order the other parties to the action to show cause why a judgment should not be entered discharging and cancelling their claims and privileges or discharging the owner from further responsibility to them. The rule shall be tried and appealed separately from the main cause of action and shall be limited to a consideration of the following matters:
(1) Whether the proper amounts have been deposited by the owner into the registry of the court.
(2) Whether the asserted claims or privileges have been properly preserved.
(3) Whether a notice of the contract and a bond for the work were properly and timely filed as required by R.S. 9:4811 and R.S. 9:4812.
(4) Whether the bond complies with the requirements of this Part.
D. If the court determines that the owner has properly deposited all sums owed by him to the contractor; that the owner has complied with this Part by properly and timely filing notice of a contract and bond as required by R.S. 9:4811 and R.S. 9:4812; that the bond complies with the requirements of this Part, or if it finds that any of the claims or privileges have not been preserved, it shall render a judgment on the rule directing the claims or privileges to be cancelled by the recorder and declaring the owner discharged from further liability for such claims or limiting the claims and privileges to the amounts as may be owed by the owner or otherwise granting such relief to the owner as may be proper.
E. The surety who convokes a concursus proceeding shall deposit into the registry of the court an amount equal to the lesser of:
(1) The full amount of the bond; or
(2) One hundred and twenty-five percent of the total amount claimed by persons who have filed a timely statement of claim or privilege for work arising out of the contract for which the bond is given.
After answer by or judgment of default against all claimants, the surety, upon motion and order may withdraw from the registry of the court any sums so deposited to the extent they exceed one hundred twenty-five percent of the aggregate amount of the claims then asserted against the contractor and surety by such claimants.
F. The attorney for the owner, who convokes a concursus under this Section, or the attorney for a claimant or privilege holder who convokes the concursus where more than ninety days have elapsed from the expiration of the time given by R.S. 9:4822 for claimants or privilege holders to file statements of their claim and such a concursus has not been convoked, shall be entitled to recover from the contractor and his surety a reasonable fee for his services in convoking the concursus. The fees awarded may be paid out of the funds deposited into the registry of the court but only after satisfaction of all valid claims and privileges.
G. The costs of the concursus taxable to the person who convokes it shall be paid in preference to other claims asserted.
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§ 4842. Delivery of notice or other documents and materials; burden of proof
A. A notice required or permitted to be given by this Part or any document required or permitted to be delivered by this Part shall be deemed to have been given or delivered when it is delivered to the person entitled to receive it, or when the notice or document is properly deposited in the United States mail for delivery by certified or registered mail to that person. The mailing may be addressed to an owner, contractor, or surety at the address given in a notice of contract or attached bond filed in accordance with this Part, or to a claimant at the address given in the statement of claim or privilege filed by the claimant or a notice given by the claimant under the provisions of R.S. 9:4822.
B. Proof of delivery at the site of the immovable by a claimant asserting a claim or privilege under the provisions of R.S. 9:4801(3) or R.S. 9:4802(3) is prima facie evidence that the movables became component parts of the immovable, or were used on the immovable, or in machinery or equipment used at the site of the immovable in performing the work.
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§ 4851. Scope; definition - Residential Truth in Construction Act
A. The provisions of this Subpart and the notice required to be given herein shall be nonwaivable and shall be applicable to all residential home improvements and shall be read and construed in pari materia with the other provisions of this Part.
B. For the purposes of this Subpart, residential home improvements shall include all improvements or construction which enhance the value or enjoyment of any real property occupied by the owner thereof principally as a single-family dwelling or residence if such works would entitle any person to lien rights against the property under the provisions of R.S. 9:4801 through 9:4842.
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§ 4852. Notice - Residential Truth in Construction Act
A. Prior to or at the time of entering into a contract for residential home improvements under the provision of this Subpart, the contractor shall deliver to the owner or his authorized agent, for such owner’s or agent’s signature, written notice in substantially the following form:
NOTICE OF LIEN RIGHTS
Delivered this ______ day of ____________, 19___, by ____________________, Contractor.
I, the undersigned owner of residential property located at
______(street address)______ in the city of ____________, parish of ____________, Louisiana, acknowledge that the abovenamed contractor has delivered this notice to me, the receipt of which is accepted, signifying my understanding that said contractor is about to begin improving my residential property according to the terms and conditions of a contract, and that in accordance with the provisions of law in Part I of Chapter 2 of Code Title XXI of Title 9 of the Louisiana Revised Statutes of 1950, R.S. 9:4801, et seq.:
(1) A right to file a lien against my property and improvements is granted to every contractor, subcontractor, architect, engineer, surveyor, mechanic, cartman, truckman, workman, laborer, or furnisher of material, machinery or fixtures, who performs work or furnishes material for the improvement or repair of my property, for the payment in principal and interest of such work or labor performed, or the materials, machinery or fixtures furnished, and for the cost of recording such privilege.
(2) That when a contract is unwritten and/or unrecorded, or a bond is not required or is insufficient or unrecorded, or the surety therefor is not proper or solvent, I, as owner, shall be liable to such subcontractors, materialmen, suppliers or laborers for any unpaid amounts due them pursuant to their timely filed claims to the same extent as is the hereinabove designated contractor.
(3) That the lien rights granted herein can be enforced against my property even though the contractor has been paid in full if said contractor has not paid the persons who furnished the labor or materials for the improvement.
(4) That I may require a written contract, to be recorded, and a bond with sufficient surety to be furnished and recorded by the contractor in an amount sufficient to cover the cost of such improvements, thereby relieving me, as owner, and my property, of liability for any unpaid sums remaining due and owing after completion to subcontractors, journeymen, cartmen, workmen, laborers, mechanics, furnishers of material or any other persons furnishing labor, skill, or material on the said work who record and serve their claims in accordance with the requirements of law.
I have read the above statement and fully understand its contents.
_______________Owner or Agent _______________Date
B. The notice herein required shall not be considered a condition of the construction contract.
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§ 4853. Copies of notice - Residential Truth in Construction Act
A. A copy of the signed notice shall be given to the owner or agent who has affixed his signature thereto.
B. Every person who may be entitled to lien rights against the residential property for work to be done or material to be furnished pursuant to this Subpart shall be furnished a copy of the signed notice by the contractor upon request.
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§ 4854. Lien rights unaffected - Residential Truth in Construction Act
Nothing contained in this Subpart shall abrogate or interfere with the lien rights of any person otherwise entitled thereto pursuant to the provisions of this Part.
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§ 4855. Penalty for violation
In the event any liens are perfected under the provisions of this Part against any immovable property for work or improvements covered under the provisions of this Subpart and the contractor has failed to comply with the provisions of this Subpart, or, if having technically complied with this Subpart, has willfully, knowingly, and unlawfully falsified any statements or fraudulently obtained the signature of the owner or his agent, such owner shall have a civil cause of action therefor, and shall be entitled to reasonable damages and attorney fees. The penalty provided for herein shall not apply if the contractor or subcontractor obtains a bond from a good and solvent surety in favor of the owner of the property on which the lien is placed pursuant to R.S. 9:4841, or reimburses the property owner in an amount sufficient to satisfy the lien, either in the form of a deduction from the original contract price or other refund and the owner so acknowledges receipt in writing.
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