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TITLE 9 CIVIL CODE ANCILLARIES
CODE BOOK III - OF THE DIFFERENT MODES OF ACQUIRING THE OWNERSHIP
OF THINGS
CODE TITLE XXI - OF PRIVILEGES
CHAPTER 2 PRIVILEGES ON IMMOVABLES
PART I PRIVATE WORKS ACT
SUBPART A
LIABILITY OF OWNERS AND CONTRACTORS FOR THE IMPROVEMENT OF
AN IMMOVABLE
4801 Persons Who Have Privileges on Immovables
4802 Persons Who Have Claims Against Owners and Contractors,
Required Notice, Bond, Indemnity, Notice of Nonpayment
4803 Amounts of Privileges and Claims
SUBPART B DEFINITIONS
4806 Owner, Lessee
4807 Contractor, General Contractor, Subcontractor
4808 Work, Public Work
SUBPART C WORK PERFORMED BY GENERAL CONTRACTORS
4811 Notice of Contract, Filing
4812 Bonds, Amounts, Conditions
4813 Liability of Surety, Prorata Distribution, Preliminary
Notices, Limitations
SUBPART
D
CLAIMS AND PRIVILEGES; EFFECTIVENESS; PRESERVATION; RANKING;
EXTINGUISHMENT
4820 Commencement of Work, Priorities
4821 Ranking of Privileges
4822 Notice of Termination, Filing Claims, Statement of Privilege,
Time Limits, Abandonment, Claims Against Subcontractors, Notice
to Owner
4823 Extinguishment, Bond
SUBPART E FILING; CANCELLATION; PEREMPTION
4831 Filing, Property Description
4832 Cancellation of Notice of Contract
4833 Cancellation of Statement of Claim or Privilege, Damages
and Attorneys Fees, Actions
4834 Expiration, Reinscription
4835 Release Bond, Notice
SUBPART F PROCEDURE FOR ENFORCEMENT; BURDEN
OF PROOF
4841 Concursus, Proceedings, Costs
4842 Service, Proof of Service
SUBPART G RESIDENTIAL TRUTH IN CONSTRUCTION
ACT
4851 Residential Home Improvements
4852 Notice to Owner
4853 Copies
4854 Effect
4855 Penalty
LOUISIANA STATUTES
TITLE 9 CIVIL CODE ANCILLARIES
CODE BOOK III - OF THE DIFFERENT MODES OF ACQUIRING THE OWNERSHIP
OF THINGS
CODE TITLE XXI - OF PRIVILEGES
CHAPTER 2 PRIVILEGES ON IMMOVABLES
PART
I PRIVATE WORKS ACT
SUBPART A
LIABILITY OF OWNERS AND CONTRACTORS FOR THE IMPROVEMENT OF
AN IMMOVABLE
4801 Persons Who Have Privileges on Immovables
The following persons have a privilege on an immovable to
secure the following obligations of the owner arising out
of a work on the immovable:
(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.
4802
Persons Who Have Claims Against Owners and Contractors, Required
Notice, Bond, Indemnity, Notice of Nonpayment
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.
4803
Amounts of Privileges and Claims
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.
SUBPART
B DEFINITIONS
4806 Owner, Lessee
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.
4807 Contractor, General Contractor, Subcontractor
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.
4808 Work, Public Work
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 fried 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, or performance of other work on land
for or by an owner, 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. 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.
SUBPART C WORK PERFORMED BY GENERAL CONTRACTORS
4811 Notice of Contract, Filing
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.
4812 Bonds, Amounts, 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.
(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.
4813 Liability of Surety, Prorata Distribution,
Preliminary Notices, Limitations
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 to 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.
SUBPART D
CLAIMS AND PRIVILEGES; EFFECTIVENESS; PRESERVATION; RANKING;
EXTINGUISHMENT
4820 Commencement of Work, Priorities
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,
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.
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.
(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.
4822
Notice of Termination, Filing Claims, Statement of Privilege,
Time Limits, Abandonment, Claims Against Subcontractors, Notice
to Owner
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.
(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 or his representative.
F. A notice of termination or substantial completion may be
filed from time to time with respect to a specified portion
or area of a work. In that case, the time for preserving privileges
or claims as specified in Subsections 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.
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.
4823
Extinguishment, Bond
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.
SUBPART E FILING; CANCELLATION; PEREMPTION
4831
Filing, Property Description
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.
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.
4833 Cancellation of Statement of Claim or
Privileges, Damages and Attorneys Fees, Actions
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
authorization directing the recorder of mortgages to cancel
the statement of claim or privilege from his records. The
authorization shall be given within ten days after a written
request for authorization has been received by the person
filing the statement of claim or privilege from a person entitled
to demand it.
B. One who, without reasonable cause, fails to deliver written
authorization to cancel a statement of 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’s fees incurred in causing the statement to
be cancelled.
C. A person who has properly requested written authorization
for cancellation shall have an action against the person required
to deliver the authorization 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 authorization
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’s fees to which he may be entitled
under this Section.
D. The action authorized by this Section may be by summary
proceeding and may be brought in the parish where the statement
of claim or privilege is filed.
E. The recorder of mortgages shall cancel a statement of a
claim or privilege from his records by making an appropriate
notation in the margin of the recorded statement upon the
filing with him by any person of:
(1) A written request for cancellation, to which is attached
a written authorization for cancellation given by the person
who filed it; or
(2) A certified copy of an executory judgment declaring the
claim or the privilege extinguished and directing the cancellation.
F. 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.
4834
Expiration, Reinscription
A. The effect of filing a notice of contract ceases five years
after it is filed, unless a written request for its reinscription
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.
B. The recorder shall not record a request for reinscription
of a notice of contract but shall reinscribe the notice of
contract and make an appropriate notation on the reinscribed
notice of the request as the cause for the reinscription.
He shall also note the date of the request on the reinscribed
notice.
4835
Release Bond, Notice
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.
SUBPART F PROCEDURE FOR ENFORCEMENT; BURDEN
OF PROOF
4841 Concursus, Proceedings, Costs
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.
4842 Service, Proof of Service
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.
SUBPART G RESIDENTIAL TRUTH IN CONSTRUCTION
ACT
4851 Residential Home Improvements
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.
4852
Notice to Owner
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 above named 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 therefore 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.
4853
Copies to Owner
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.
4854
Effect
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.
4855 Penalty
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 therefore,
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. |
