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Pre-Lien Notices - Requirements
General Pre-Lien Notice Statute (42 O.S. § 142.6)
Owner-Occupied Dwelling Pre-Lien Notice Statute (42 O.S. § 142.1) Mechanic's
Lien Statements Oil &
Gas Well / Pipeline Liens
Q. Is a claimant required to give a pre-lien notice to have the right to file a valid mechanic's lien later? A. Yes, unless an exception applies. Currently, there are two (2) different laws which can require a pre-lien notice: 42 O.S. § 142.6, which applies to projects in general and 42 O.S. § 142.1, which applies only to owner-occupied dwellings. Each law as unique requirements and exceptions.
Q. What are the exceptions which eliminate the duty to give a pre-lien notice under the general pre-lien notice statute (42 O.S. § 142.6)? A. 42 O.S. § 142.6 does not require the giving of a pre-lien notice for:
Q. What are the required contents of a pre-lien notice under the general pre-lien notice statute (42 O.S. § 142.6)? A. The pre-lien notice shall be in writing and shall contain, but not be limited to, the following: a. a statement that the notice is a pre-lien notice, b. the complete name, address, and telephone number of the claimant, or the claimant’s representative, c. the date of supply of material, services, labor, or equipment, d. a description of the material, services, labor, or equipment, e. the name and last-known address of the person who requested that the claimant provide the material, services, labor, or equipment, f. the address, legal description, or location of the property to which the material, services, labor, or equipment has been supplied, g. a statement that the dollar amount of the material, services, labor, or equipment furnished or to be furnished exceeds Two Thousand Five Hundred Dollars ($2,500.00), and h. the signature of the claimant, or the claimant’s representative. Q. When must the pre-lien notice be given under the general pre-lien notice statute (42 O.S. § 142.6)? A. The statute is somewhat ambiguous. In one place it says" Prior to the filing of a lien statement pursuant to Section 143.1 of Title 42 of the Oklahoma Statutes, but no later than seventy-five (75) days after the date of supply of material, services, labor, or equipment in which the claimant is entitled or may be entitled to lien rights, the claimant shall send.... Notice that it does not say the date of first supply or the date of last supply or any other date. Elsewhere the statute says: Failure of the claimant to comply with the pre-lien notice requirements of this section shall render that portion of the lien claim for which no notice was sent invalid and unenforceable." There are no reported appellate decisions (as of 1/29/2007) which construe § 142.6. Many lawyers have successfully argued that the combination of the above phrases means that the pre-lien notice may be given at any time, but if given more than 75 days after the claimant began work, that lien rights will only exist forward from the 75th day before the notice was given; lien rights for earlier labor or materials will be lost. The most prudent approach is simply to give the pre-lien notice within the first 75 days that the claimant is involved in the job. Q. To whom must the pre-lien notice be given under the general pre-lien notice statute (42 O.S. § 142.6)? A. The pre-lien notice must be sent to the, "last-known address of the original contractor and owner of the property." However, in some cases the duty to mail to the owner may be eliminated: The claimant may request in writing... that the original contractor provide to the claimant the name and last-known address of the owner of the property. Failure of the original contractor to provide the claimant with the information requested within five (5) days from the date of receipt of the request shall render the pre-lien notice requirement to the owner of the property unenforceable.
OWNER-OCCUPIED DWELLING PRE-LIEN NOTICE STATUTE (42 O.S. § 142.1) Q. What are the exceptions which eliminate the duty to give a pre-lien notice under the owner-occupied dwelling pre-lien notice statute (42 O.S. § 142.1)? A. There are no exceptions. A claimant must give the notice or there is no right to file a mechanics lien on the property if it is a dwelling in which the owner resides. Q. What are the required contents of a pre-lien notice under the owner-occupied dwelling pre-lien notice statute (42 O.S. § 142.1)? A. The statute requires, "...a written notice which shall include substantially the following language: NOTICE TO OWNER YOU ARE HEREBY NOTIFIED THAT ANY PERSON PERFORMING LABOR ON YOUR PROPERTY OR FURNISHING MATERIALS FOR THE CONSTRUCTION, REPAIR, OR IMPROVEMENT OF YOUR PROPERTY WILL BE ENTITLED TO A LIEN AGAINST YOUR PROPERTY IF HE IS NOT PAID IN FULL, EVEN THOUGH YOU MAY HAVE PAID THE FULL CONTRACT PRICE TO YOUR CONTRACTOR. THIS COULD RESULT IN YOUR PAYING FOR LABOR AND MATERIALS TWICE. THIS LIEN CAN BE ENFORCED BY THE SALE OF YOUR PROPERTY. TO AVOID THIS RESULT, YOU MAY DEMAND FROM YOUR CONTRACTOR LIEN WAIVERS FROM ALL PERSONS PERFORMING LABOR OR FURNISHING MATERIALS FOR THE WORK ON YOUR PROPERTY. YOU MAY WITHHOLD PAYMENT TO THE CONTRACTOR IN THE AMOUNT OF ANY UNPAID CLAIMS FOR LABOR OR MATERIALS. YOU ALSO HAVE THE RIGHT TO DEMAND FROM YOUR CONTRACTOR A COMPLETE LIST OF ALL LABORERS AND MATERIAL SUPPLIERS UNDER YOUR CONTRACT, AND THE RIGHT TO DETERMINE FROM THEM IF THEY HAVE BEEN PAID FOR LABOR PERFORMED AND MATERIALS FURNISHED. Q. When must the pre-lien notice be given under the owner-occupied dwelling pre-lien notice statute (42 O.S. § 142.1)? A. It must be given, "...prior to the first performance of labor or the first furnishing of materials by the lien claimant...." Q. To whom must the pre-lien notice be given under the owner-occupied dwelling pre-lien notice statute (42 O.S. § 142.1)? A. The notice must be given to, "...one of the owners...."
Q. When is the deadline to file a mechanics lien? A. It depends on whether you are in direct contract with the owner. The deadline is:
Q. When does a mechanics lien expire? A. The lien statement ceases to encumber the property if no lawsuit is filed by the claimant to foreclose upon it (and no suit is filed by the owner to discharge or remove it), within one (1) year of the "time of the filing of said lien with the county clerk." 42 O.S. § 172. Furthermore, the Oklahoma Title Examination Standards, §24.10, state, "Unreleased mechanics', materialmen's or other improvement liens... shall be disregarded after the lapse of one year from the filing of the lien if no action to foreclose or adjudicate the lien has been instituted." Q. How may a lien be removed as an encumbrance upon the land? A. A mechanics lien may be removed by (1) a final judgment which finds that the lien is not valid or the underlying debt is not owed; or (2) posting a bond to discharge the lien. Q. What are the requirements to post a bond to discharge a mechanics lien? A. Post with the County Clerk a cash or surety bond worth 1.25 times the lien amount. The statute states that practically anyone may: ...at any time discharge the lien by depositing with the county clerk... either: an amount of money equal to one hundred twenty-five percent (125%) of the lien claim amount; or a corporate surety bond... equal to one hundred twenty-five percent (125%) of the lien claim amount. Q. When is the discharge effective if a bond is posted? A. It depends on what type of bond is posted (cash or surety) and if an objection is filed.
Q. Are attorney fees recoverable in a lawsuit on a mechanics lien? A. Yes. See 42 O.S. § 176. Q. Can an owner do anything to free his property except (1) post a discharge bond or (2) sit and wait for the claimant to file suit on the lien? A. Yes, the owner may bring suit at any time to determine whether the lien is valid and what amount, if any, is owed. 42 O.S. § 177.
OIL AND GAS WELL/PIPELINE LIENS Q. Is it possible to file a mechanic's lien upon an oil and gas well, or facilities or pipelines? A. Yes. 42 O.S. § 144 allows a lien on such facilities as follows: Any person, corporation, or copartnership who shall, under contract, expressed or implied, with the owner of any leasehold for oil and gas purposes, or the owner of any gas pipeline or oil pipeline, or with the trustee or agent of such owner, perform labor or services, including written contracts for the services of a geologist or petroleum engineer, or furnish material, machinery, and oil well supplies used in the digging, drilling, torpedoing, completing, operating, or repairing of any oil or gas well, or who shall furnish any oil or gas well supplies, or perform any labor in constructing or putting together any of the machinery used in drilling, torpedoing, operating, completing, or repairing of any gas well, or perform any labor upon any oil well supplies, tools, and other articles used in digging, drilling, torpedoing, operating, completing, or repairing any oil or gas well, shall have a lien upon the whole of such leasehold or oil pipeline, or gas pipeline, or lease for oil and gas purposes, the buildings and appurtenances, the proceeds from the sale of oil or gas produced therefrom inuring to the working interest, exempting, however, any valid, bona fide reservations of oil or gas payments or overriding royalty interests executed in good faith and payable out of such working interest, and upon the material and supplies so furnished, and upon any oil well supplies, tools, and other articles used in digging, drilling, torpedoing, operating, completing, or repairing any oil or gas well, and upon the oil or gas well for which they were furnished, and upon all the other oil or gas well fixtures and appliances used in the operating for oil and gas purposes upon the leasehold for which said material and supplies were furnished or labor or services performed. Such lien shall be preferred to all other liens or encumbrances which may attach to or upon said leasehold for gas and oil purposes and upon any oil or gas pipeline, or such oil and gas wells and the material and machinery so furnished and the leasehold for oil and gas purposes and the fixtures and appliances thereon subsequent to the commencement of or the furnishing or putting up of any such machinery or supplies; and such lien shall follow said property and each and every part thereof, and be enforceable against the said property wherever the same may be found; and compliance with the provisions of this article shall constitute constructive notice of the lien claimant's lien to all purchasers and encumbrancers of said property or any part thereof, subsequent to the date of the furnishing of the first item of material or the date of the performance of the first labor or services. Q. Can a subcontractor working on an oil and gas project have a mechanic's lien upon the well, facilities or pipeline? A. Yes. See 42 O.S. § 145, which states: Any person, copartnership or corporation who shall furnish such machinery or supplies to a subcontractor under a contractor, or any person who shall perform such labor under a subcontract with a contractor, or who, as an artisan or day laborer in the employ of such contractor, shall perform any such labor, may obtain a lien upon said leasehold for oil and gas purposes or any gas pipeline or any oil pipeline from the same tank and in the same manner and to the same extent as the original contractor for the amount due him for such labor, as provided in the preceding section. Q. Are pre-lien notices required for oil and gas liens? A. No. 42 O.S. § 146 states: ...Notice of the lien shall be given and the materialman's statement or the lien of any laborer shall be filed, in the same manner as is provided for in Sections 141 through 143.4 of this title, except that Section 142.6 of this title shall not apply.... Q. When is the deadline to record an oil and gas lien? A. The lien statement must be recorded: ...within one hundred eighty (180) days after the date upon which material, machinery or supplies were last furnished or labor or services last performed....
This information last updated 1/29/2007.
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