Posts Tagged ‘Service’

The Importance of Service When Filing A Mechanics Lien in West Virginia

On September 14, 2011        

In almost every state, the lien claimant must “serve” a copy of the mechanics lien upon the property owner before, simultaneously or immediately after filing.  The rules on this vary, and it’s not required in every state.  On most occasions, however, the claimant can accomplish service by sending a copy of the mechanics lien by certified mail or certified mail with return receipt requested.

West Virginia has an exceptional rule, however, requiring all those parties who are not in privity of contract with the property owner (i.e. those who contract with a subcontractor or the general contractor) to serve the property owner with the mechanics lien “by any of the methods provided by law for the service of a legal notice or summons.” W. Va. Code sec. 38-2-9

Lien claimants must be very careful about waiting too long to get its lien filed, because the lien must be served upon the property owner within 100 days of last furnishing labor and/or materials to the project (the same time period for filing the mechanics lien itself).

It’s unfortunate that the West Virginia statutes are not more clear about how a lien can be served on the property owner.  Simply referring to the “methods provided by law for the service of a legal notice or summons” leaves lien claimants with a laundry list of procedural rules about service of process, which is difficult for a novice to understand and presents a lot of traps for the unwary.

West Virginia Rule of Civil Procedure 4 dictates how a party may serve a civil summons, which can vary a great deal depending on whether the property owner is an individual, a corporation, another type of business entity, or other type of company or organization. You can read Rule 4 and give it your best shot at understanding here.  In large part, the statute requires personal delivery for service.

In an old 1911 West Virginia case, Williams & Davisson Co. v. Bailey, the court held that service of a mechanics lien pursuant to WV Code § 56-2-1 was sufficient, which is a little less complex than RCP 4.  This rule simply states that service may be made by a sheriff.

Also note another potential trap in the event the property owner cannot be found for service or is a non-resident.  In this case, WV Code § 38-2-15 provides as follows:

In the event that any owner, upon whose real estate or improvement thereof it is desired to take a lien under this article, should be a nonresident of this State, or in the event that any officer of this State authorized by law to execute legal process should make return “not found” upon any notice of a mechanic’s lien which may be presented to him for service, then it shall be sufficient service of any such notice of mechanic’s lien upon such nonresident owner, or upon such owner as to whom any such return, of “not found” shall be made by any such officer, to publish a copy of such notice as a Class II legal advertisement in compliance with the provisions of article three [§§ 59-3-1 et seq.], chapter fifty-nine of this Code, and the publication area for such publication shall be the county wherein the real estate lies. A copy of such notice shall also be posted in a conspicuous place upon the property sought to be charged thereby, which publishing and posting shall be sufficient, if commenced within the period provided by this article for the filing of such notice. The costs of such publication may be added to the account for which the lien is claimed, and, if included in the amount mentioned in the recorded notice the lien shall cover such costs.

Posted in:     Mechanic Liens  /  Tags: , ,   /   Leave a comment

Myths and Facts of Properly Serving a Mechanics Lien in South Carolina

On November 18, 2009        

Special thanks to Jeff Bannister of Serve-One Inc. Process Serving in Greenville, SC, who contributes this guest post to the Construction Lien Blog.  Jeff Bannister is the owner of Serve-One Inc. Processing Serving.   Serve One Attorney Services is the largest process serving company in SC.  Jeff is a Desert Storm Veteran and former State Trooper who started serving legal process in 1987. He is not an attorney.

When it comes to civil liability a Mechanics Lien is in my opinion the most dangerous paper to serve. If it is not filed and served properly, the process server could  be held responsible. That’s why it’s critical to learn to navigate through the myths and facts of how to properly serve these liens.

Myth #1 – The lien’s 90-day limit can be extended by filing with the Sheriff’s Department

This time limit, or statute, starts the last day work was done or material was supplied to the property in question. It is true that South Carolina’s rules of civil procedure, Rule 3 paragraph (b), states a statute can be tolled on a SUMMONS AND COMPLAINT.  But Mechanics’ liens are not included in this rule.

Myth #2 – If the owner of the property can’t be found, an affidavit for non-service can be filed

When the owner or person in possession of the property cannot be found, S.C. Code Ann Section 29-5-90 allows the lien to be filed with an affidavit of non-service by a SHERIFF or his DEPUTY. But it’s important to note that this section does not provide for an affidavit of non-service from a private process server.

I have asked attorneys for their opinion about this. They’ve told me they would try an affidavit of non-service if there were no other choice ­– but that they wouldn’t want to be the first to present this to the court.

I have always kept track of the date, and if the 90 days were over on a weekend, I would go to the Sheriff’s Department civil division with a copy of the law in my hand and politely explain the situation.  I have never been turned down when I ask for a rush check of the property and affidavit of non-service. This affidavit of non-service MUST be filed with the lien before the 90 days.  (It does seem unusual that if the lien was served properly, the statute does not require the affidavit of service to be filed with the lien.)

Myth #3 – If the owner or registered agent cannot be found it can be posted on the front or main entrance to the property using a nail or securing it with tape

I have done a great deal of research on this, and I have not found any “Nail and Mail” sections concerning mechanics liens in South Carolina.  S.C. Code Ann. Section 29-5-90 says a mechanic’s lien will be dissolved within 90 days unless it is served upon the owner OR if the owner cannot be found a person in possession of the property.

This would be a common practice if you were serving an apartment complex that is under construction and the owner is an out-of-state corporation. The lead project manager would probably be the most appropriate person in this case.  If it was a house or rental property the person living there would be appropriate.

The Mechanics lien is a very unusual paper when compared to other civil processes.

Often, the client will ask that you file the lien with the clerk of court or RMC office. This should be done as soon as possible because the validity and value of a lien can be effected by its timeliness. To make research easier for the attorney, record the book and page number and the time the lien is filed.

If the lien isn’t properly handled ‑‑ either by the attorney or the server — the plaintiff may have to pay all associated fees concerning the defense of the lien.  So, it is imperative everything be handled according to the details of the law.

Posted in:     The Legal Corner  /  Tags: , , ,   /   3 Comments

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