Section 24 What Lien Statement Must Contain

• Library: Mechanics Liens 2015

1. (§24) What Lien Statement Must Contain

Section 429.080, RSMo Supp. 2013, requires filing of a lien statement containing the following:

· “[A] just and true account of the demand due . . . after all just credits have been given”

· “[A] true description of the property, or so near as to identify the same, upon which the lien is intended to apply”

· “[T]he name of the owner or contractor, or both, if known to the person filing the lien”

· Verification by the claimant or some credible person for the claimant

Sample lien statement forms are set forth in §§49 and 50 in Chapter 6. The statutory requirements are mandatory and cannot be waived. George F. Robertson Plastering Co. v. Altman, 430 S.W.2d 169 (Mo. 1968). But judicial decisions reflect that the statutory requirements may be applied differently depending on whether the lien claimant is an original contractor or a subcontractor. For example, the requirement of a “just and true account” in the lien statement varies between the original contractor and the subcontractor/material provider; consequently, this requirement often presents a trap for the unwary subcontractor/material provider lien claimant.

When the lien claimant is an original contractor and has made a lump-sum contract with the owner, the claimant’s “just and true account” only needs to be stated in a lump sum with credits given for payments received. The original contractor’s just and true account does not need to be itemized. State ex rel. St. Francois Cnty. Bldg. & Loan Ass’n v. Reynolds, 232 S.W. 1035 (Mo. 1921). There are exceptions to this general rule. For example, as the court indicated in Martin-Welch Hardware & Plumbing Co. v. Spencer, 214 S.W. 417 (Mo. App. W.D. 1919), when the interests of a mortgagee are involved, an original contractor who had a lump-sum contract may have to itemize, at least to have priority over the mortgage. Also, it is clear that the account must be itemized if the contractor’s claim is in quantum meruit. K-V Builders, Inc. v. Thomas, 353 S.W.2d 130 (Mo. App. E.D. 1962); Wadsworth Homes, Inc. v. Woodridge Corp., 358 S.W.2d 288 (Mo. App. W.D. 1962).

A “just and true account” is dramatically different for a lien claimant that is a subcontractor or material provider. In this instance, to constitute a “just and true account,” the claimant must include an itemized list of the labor and materials furnished and the prices charged for each item. In S&R Builders & Suppliers, Inc. v. Marler, 610 S.W.2d 690 (Mo. App. E.D. 1980), the court held that the listing of plumbing labor in a lump sum was acceptable when the itemization of the material portion of the account was in minute detail.

“Determination of the adequacy of a lien statement turns on whether the statement provides detail and itemization sufficient to enable the owner to investigate and determine the propriety of the lien claim.” Bolivar Insulation Co. v. Bella Pointe Dev., L.L.C., 166 S.W.3d 610, 613 (Mo. App. S.D. 2005) (citing Commercial Openings, Inc. v. Mathews, 819 S.W.2d 347, 350 (Mo. banc 1991)).

[F]ailure to itemize individual prices for furnished material has never been regarded as fatal to the sufficiency of a subcontractor’s lien statement. See, e.g., Glasco Elec. Co. v. Best Elec. Co., 751 S.W.2d 104, 108 (Mo.App. [E.D.] 1988); S & R Builders & Suppliers, Inc. v. Marler, 610 S.W.2d [690] at 696–97 [(Mo.App. [E.D.] 1980)]. All that is required is that the lien statement “advise the owner or the public of the total amount due and the nature of the materials furnished.” Glasco Elec. Co. v. Best Elec. Co., 751 S.W.2d at 108 (emphasis added).

Bolivar Insulation, 166 S.W.3d at 613–14.

In Bernard v. Merrick, 549 S.W.2d 561 (Mo. App. W.D. 1977), the court held that a lien statement that asserted the account was in accordance with “attached bills,” which merely showed the date, the item number, the amount of sale, and the balance due (but no further description of the materials), was insufficient to constitute a just and true account. The statement was insufficient to allow anyone to investigate whether materials went into the building, and the production of the itemized invoices at the trial did not cure the error in the filing of the lien statement. Similarly, in Summit Lumber Co. v. Higginbotham, 586 S.W.2d 799 (Mo. App. W.D. 1979), a mechanic’s lien statement that provided a lump-sum general description of the materials furnished, but without further itemization as to the...