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“Substantial Compliance” with the Missouri Mechanics’ Lien notice requirement may be sufficient, but “strict compliance” will help you sleep at night.

Missouri law imposes an unusual prerequisite on general contractors before they can file a mechanics’ lien. Early in a project a general contractor must issue a notice to the property owner that mechanics’ liens could be filed in the event of nonpayment. According to the statute, the following notice must be given in ten-point bold type:

NOTICE TO OWNER

FAILURE OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL OR SERVICES TO COMPLETE THIS CONTRACT CAN RESULT IN THE FILING OF A MECHANIC’S LIEN ON THE PROPERTY WHICH IS THE SUBJECT OF THIS CONTRACT PURSUANT TO CHAPTER 429, RSMO. TO AVOID THIS RESULT YOU MAY ASK THIS CONTRACTOR FOR “LIEN WAIVERS” FROM ALL PERSONS SUPPLYING MATERIAL OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT. FAILURE TO SECURE LIEN WAIVERS MAY RESULT IN YOUR PAYING FOR LABOR AND MATERIAL TWICE.

The law is unusual because the general contractor must issue the notice early in the project before any issue of nonpayment even arises. If the general contractor forgets to issue the notice either when the contract is signed, materials are delivered, work is started, or the first invoice is issued, any later-filed mechanics’ liens could be invalid. It can be a steep price to pay for a failure to supply a notice.

Missouri courts have struggled to determine when a mechanics’ lien should be invalidated for failure to comply with the statutory notice requirements. The relatively easy cases are those where a general contractor does not provide any notice at all. In these instances, the general contractor can expect that a court will invalidate mechanics’ liens, even where work has been completed to the satisfaction of the owner.

The trickier cases are those where the general contractor provides written notice to the owner but without using the exact statutory language. The question here is whether “strict” compliance with the statute is required or whether “substantial” compliance satisfies the law’s requirements. At least one Missouri state appellate court and a federal bankruptcy court applying Missouri law have held that substantial compliance is sufficient. In those cases, the general contractor provided written notice in the parties’ contracts, although without using the exact language from the statute.

Given the remedial purpose of mechanics’ liens, it could be that the Missouri Supreme Court would agree with substantial compliance. But the better path is to copy and paste the statutory text, keep your mechanics’ lien out of court, and sleep better at night.