Judges: MIKE BEEBE, Attorney General
Filed Date: 8/1/2003
Status: Precedential
Modified Date: 7/5/2016
The Honorable Dwight Fite State Representatives 1003 Highway 35 Benton, Arkansas 72015-5814
Dear Representative Fite:
I am writing in response to your request for an opinion on several questions concerning the filing of liens with the county recorder (or circuit clerk).1 You note that "[b]y state law, a person must be notified at least 10 days prior before a lien is placed on him." You ask that I "please articulate the duties and authority of a county recorder with regards to this transaction." Your specific questions are as follows:
1. Must the county recorder ask for proof that the individual has been given notice of the lien before the recorder can accept the filing? If so, what kind of proof is required?
2. May the county recorder ask for proof that the individual has been given notice of the lien before the recorder can accept the filing? If so, may the county recorder refuse to file the lien if satisfactory proof is not given?
3. May the county recorder refuse to record the lien if it is apparent that the 10-day notice was not given to the affected party?
RESPONSE
It is my understanding that your questions have reference to materialmen's liens arising from improvements to real estate, boats or vessels and which are created under A.C.A. §
Question 1 — Must the county recorder ask for proof that the individualhas been given notice of the lien before the recorder can accept thefiling? If so, what kind of proof is required?
In my opinion the answer to this question is "no." The relevant statutory subchapter is A.C.A. §§
(a) Every contractor, subcontractor, or material supplier as defined in §
18-44-107 , who supplies labor, services, material, fixtures, engines, boilers, or machinery in the construction or repair of an improvement to real estate, or any boat or vessel of any kind, by virtue of a contract with the owner, proprietor, contractor, or subcontractor, or agent thereof, upon complying with the provisions of this subchapter, shall have, to secure payment, a lien upon the improvement and on up to one (1) acre of land upon which the improvement is situated, or to the extent of any number of acres of land upon which work has been done or improvements erected or repaired.
The procedure for acquiring and "perfecting" the lien has multiple steps. Certain notice must be given and the lien must be filed with the circuit clerk. There are two notice provisions in the subchapter. The "ten-day" notice to which you refer is found in A.C.A. §
(a)(1)(A) Every person, except the original contractor, who may wish to avail himself of the benefit of the provisions of this subchapter shall give ten (10) days' notice before the filing of the lien, as required in §
18-44-117 (a), to the owner, owners, or agent, or either of them, that he holds a claim against the building or improvement, setting forth the amount and from whom it is due.(B) However, if the transaction is a direct sale to the property owner, this notice requirement shall not apply and the lien rights arising under this subchapter shall not be conditioned on delivery and execution of the notice.
(2) For purposes of this subsection, a sale shall be considered a direct sale when the owner or owners order the materials from the lien claimant.
(b)(1) The notice may be served by any officer authorized by law to serve process in civil actions, by any person who would be a competent witness, or by any form of mail addressed to the person to be served, with a return receipt requested and delivery restricted to the addressee or the agent of the addressee.
(2)(A)(i) When served by an officer, his official return endorsed thereon shall be proof thereof.
(ii) When served by any other person, the fact of the service shall be verified by affidavit of the person so serving.
(B)(i) When served by mail, the service shall be verified by a return receipt signed by the addressee or the agent of the addressee, or a returned envelope, postal document, or affidavit by a postal employee reciting or showing refusal of the notice by the addressee.
(ii) If delivery of the mailed notice is refused by the addressee, then the person holding the claim shall immediately mail to the owner, owners, or agent a copy of the notice by first class mail and may proceed to file his lien.
The actual filing of the lien is governed by A.C.A. §
(a) It shall be the duty of every person who wishes to avail himself of the provisions of this subchapter to file, with the clerk of the circuit court of the county in which the building, erection, or other improvement to be charged with the lien is situated and within one hundred twenty (120) days after the things specified in this subchapter shall have been furnished or the work or labor done or performed, a just and true account of the demand due or owing to him after allowing all credits. This account shall contain a correct description of the property to be charged with the lien, verified by affidavit.
(b) It shall be the duty of the clerk of the circuit court to endorse upon every account the date of its filing and to make an abstract thereof in a book kept by him for that purpose, properly indexed. This abstract shall contain the date of the filing, the name of the person laying or imposing the lien, the amount of the lien, the name of the person against whose property the lien is filed, and a description of the property to be charged with it. For this service, he shall receive the sum of three dollars ($3.00) from the person laying or imposing the lien, which shall be taxed and collected as other costs in case there is suit thereon.
Emphasis added.
The statute above does not mention or require filing proof of the 10-day notice sent the owner.2 The statute requires the filing of a "just and true account" along with a correct description of the property. Subsection (b) of the statute makes it the duty of the circuit clerk to file the account and to make an abstract of the listed items. I cannot conclude, in response to your first question, that the circuit clerk "must" ask for proof that the ten-day notice has been sent. An answer to the second part of your first question is therefore unnecessary.
Question 2 — May the county recorder ask for proof that the individualhas been given notice of the lien before the recorder can accept thefiling? If so, may the county recorder refuse to file the lien ifsatisfactory proof is not given?
In my opinion the answer to this question is also "no." In my opinion the filing of the lien is a ministerial act of the clerk. A ministerial act is defined as "[o]ne which a person or board performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority without regard to or the exercise of his or their own judgment upon the propriety of the act being done." Black's Law Dictionary (5th
Ed. 1989) at 899. The statutory scheme requires the clerk to endorse the date of filing on the account and to make an abstract of the items required by the statute. See A.C.A. § 18-44-177(b). See also A.C.A. §
Question 3 — May the county recorder refuse to record the lien if it isapparent that the 10-day notice was not given to the affected party?
I am uncertain in what way it would be "apparent" that the notice has not been given. As stated above, proof of service of the notice is not required to be filed with the circuit clerk when the lien is filed under A.C.A.
Deputy Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General
MB:ECW/cyh