Session Laws

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 254 of the General Laws is hereby amended by striking out section 1, as appearing in the l994 Official Edition, and inserting in place thereof the following section:-

Section 1. A person to whom a debt is due for personal labor performed in the erection, alteration, repair or removal of a building or structure upon land or improvement or alteration to real property, by virtue of an agreement with, or by consent of, the owner of such building or structure, or of a person having authority from or rightfully acting for such owner in procuring or furnishing such labor, shall, under the provisions of this chapter, other than section four, have a lien upon such building or structure and upon such interest in such real property, land, building, structure, or improvement owned by the party authorizing or consenting to said work, for not more than thirty days' work actually performed for the ninety days next prior to his filing a statement as provided in section eight.

A person or his assignee, agent, authorized representative or third party beneficiary, to whom amounts are due or for whose benefit amounts are computed and due for, or on the basis of, the personal labor of such person, may file a lien to secure the payment of such unpaid amounts including interest and agreed penalties for failure to pay the same.

SECTION 2. Said chapter 254 is hereby further amended by striking out section 2, as so appearing, and inserting in place thereof the following section:-

Section 2. A person entering into a written contract with the owner of any interest in real property, or with any person acting for, on behalf of, or with the consent of such owner for the whole or part of the erection, alteration, repair or removal of a building, structure, or other improvement to real property, or for furnishing material or rental equipment, appliances, or tools therefor, shall have a lien upon such real property, land, building, structure or improvement owned by the party with whom or on behalf of whom the contract was entered into, as appears of record on the date when notice of said contract is filed or recorded in the registry of deeds for the county or district where such land lies, to secure the payment of all labor, including construction management and general contractor services, and material or rental equipment, appliances, or tools which shall be furnished by virtue of said contract. Said notice may be filed or recorded in the registry of deeds in the county or registry district where the land lies by any person entitled under this section to enforce a lien, and shall be in substantially the following form:

Notice is hereby given that by virtue of a written contract dated _________, between _________, owner, and __________, contractor, said contractor is to furnish or has furnished labor and material or rental equipment, appliances or tools for the erection, alteration, repair or removal of a building, structure, or other improvement on a lot of land or other interest in real property described as follows: `tuc (INSERT DESCRIPTION)

Such person may file or record the notice of contract at any time after execution of the written contract whether or not the date for performance stated in such written contract has passed and whether or not the work under such written contract has been performed, but not later than the earliest of: (i) sixty days after filing or recording of the notice of substantial completion under section two A; or (ii) ninety days after filing or recording of the notice of termination under section two B; or (iii) ninety days after such person or any person by, through or under him last performed or furnished labor or materials or both labor and materials.

SECTION 3. Said chapter 254 is hereby further amended by inserting after section 2, as so appearing, the following two sections:-

Section 2A. As used in this chapter the following words shall, unless the context clearly requires otherwise, have the following meaning:-

"Substantial completion", that work under the written contract is sufficiently complete so that it can be occupied or utilized for its intended use.

"Written contract", any written contract enforceable under the laws of the commonwealth.

Upon or after substantial completion of any contract subject to the provisions of section two, the owner and contractor shall execute and file or record in the appropriate registry of deeds a notice of substantial completion in substantially the following form: `tuc Notice of Substantial Completion

Notice is hereby given that the work performed by virtue of a written contract dated __________ between __________ as owner, and __________ __________ as contractor, for the erection, alteration, repair or removal of a building, structure, or other improvement of real property described below, has been substantially completed as of the date of filing or recording of this notice. The lot of land or other interest in real property which is the subject of such contract is described as follows: `tuc (Insert description)

The undersigned owner hereby states that he has served written notice of the recording or filing of this notice of substantial completion upon every person who has filed or recorded prior to the date this notice is filed or recorded notice of contract under section four of chapter two hundred and fifty-four of the General Laws.

The undersigned contractor hereby states that he has served written notice of the recording or filing of this notice of substantial completion upon every person who has entered into a written contract directly with the contractor or who has given written notice of identification to the contractor prior to the date this notice is filed or recorded as provided in said section four of said chapter two hundred and fifty-four of the General Laws.

A copy of such notice, indicating the date of filing or recording, shall be mailed by certified mail return receipt requested by the owner to every person who has filed a notice of contract under section four and by the contractor to every person who has entered into a written contract directly with the contractor and every person who has given written notice of identification to the contractor claiming by, through, or under him as provided in section four.

The failure of the owner or contractor to give notice of the filing or recording of the notice of substantial completion to those persons so entitled shall not prejudice the rights of third parties who rely upon said notice of substantial completion in good faith and without actual knowledge of such failure of notice.

Section 2B. If, prior to the filing or recording in the registry of deeds and delivery of the copies of the notice of substantial completion described in section two A, any contract subject to the provisions of section two shall have been terminated, the owner shall execute and file or record in the appropriate registry of deeds a notice of termination in substantially the following form: `tuc Notice of Termination

Notice is hereby given that a written contract dated __________ between __________ as Owner and __________ as Contractor for the erection, alteration, repair or removal of a building, structure or other improvement of real property described below, has been terminated. The lot of land or other interest in real property which is the subject of such contract is described as follows: `tuc (Insert description)

The undersigned owner hereby states that he has served written notice of the recording or filing of this notice of termination upon the contractor and every person who has filed or recorded prior to this date a notice of contract under section four of chapter two hundred and fifty-four of the General Laws.

A copy of such notice, indicating the date of filing or recording, shall be mailed by certified mail return receipt requested by the owner to every person who has filed or recorded a notice of contract under section four and to the contractor. Upon receipt of such notice from the owner, the contractor shall deliver a copy of such notice to every person who has entered into a written contract directly with the contractor or who has given to the contractor written notice of identification in accordance with said section four.

The failure of the owner or contractor to give notice of the filing or recording of the notice of termination to those persons so entitled shall not prejudice the rights of third parties who rely upon said notice of termination in good faith and without actual knowledge of such failure of notice.

SECTION 4. Section three of said chapter two hundred and fifty-four is hereby repealed.

SECTION 5. Said chapter 254 is hereby further amended by striking out section 4, as appearing in the l994 Official Edition, and inserting in place thereof the following section:-

Section 4. Whoever furnishes labor, including subcontractor construction management services, or who furnishes material, or both labor and material, or furnishes rental equipment, appliances or tools, under a written contract with a contractor, or with a subcontractor of such contractor, may file or record in the registry of deeds for the county or district where such land lies a notice of his contract substantially in the following form:

Notice is hereby given that by virtue of a written contract dated __________, between __________ __________ contractor (or subcontractor) and __________ said __________ is to furnish or has furnished labor or material, or both labor and material, or is to furnish or has furnished rental equipment, appliances or tools, in the erection, alteration, repair or removal of a building, structure or other improvement of real property by __________, contractor, for __________, owner, on a lot of land or other interest in real property described as follows: `tuc (Insert description)

As of the date of this notice, an account of said contract is as follows:

1. contract price $______________________

2. agreed change orders $______________________

(indicate whether addition or subtraction)

3. pending change orders: $______________________

(indicate whether addition or subtraction)

4. disputed claims $______________________

(indicate whether addition or subtraction)

5. payments received $______________________

The regular mailing address of the party recording or filing this notice is as follows: _______________________________.

Such person may file or record the notice of contract at any time after execution of the written contract whether or not the date for performance stated in such written contract has passed and whether or not the work under such contract has been performed, but not later than the earliest of: (i) sixty days after filing or recording the notice of substantial completion under section two A; or (ii) ninety days after filing or recording of the notice of termination under section two B; or (iii) ninety days after the last day a person entitled to enforce a lien under section two or anyone claiming by, through or under him performed or furnished labor or materials or both labor and materials to the project or furnished rental equipment, appliances or tools.

Such notice may also be filed by a person or his assignee, agent, authorized representative or third party beneficiary to whom amounts are due or for whose benefit amounts are computed and due for or on the basis of the labor of that person performing labor under a written contract with a contractor, or with a subcontractor of such contractor and the person filing such notice shall not be required to itemize the amount of the contract, the amount of pending changes in the contract, the amount of outstanding claims or the amount paid in such notice.

Upon filing or recording a notice, as hereinbefore provided, and giving actual notice to the owner of such filing, the subcontractor shall have a lien upon such real property, land, building, structure or improvement owned by the party who entered into the original contract as appears of record at the time of such filing, to secure the payment of all labor and material and rental equipment, appliances or tools which he is to furnish or has furnished for the building or structure or other improvement, regardless of the amount stated in the notice of contract. Such lien shall not exceed the amount due or to become due under the original contract as of the date notice of the filing of the subcontract is given by the subcontractor to the owner.

If the person claiming a lien under this section has no direct contractual relationship with the original contractor, except for liens for labor by persons defined in section one of this chapter, the amount of such lien shall not exceed the amount due or to become due under the subcontract between the original contractor and the subcontractor whose work includes the work of the person claiming the lien as of the date such person files his notice of contract, unless the person claiming such lien has, within thirty days of commencement of his performance, given written notice of identification by certified mail return receipt requested to the original contractor in substantially the following form: `tuc Notice of Identification

Notice is hereby given to __________, as contractor, that __________, as subcontractor/vendor, has entered into a written contract with __________ to furnish labor or materials, or labor and materials, or rental equipment, appliances or tools to a certain construction project located at __________ (Street Address), ____________________ (Town or City), Massachusetts. The amount or estimated amount of said contract is $__________. (No amount need be stated for contracts for the rental of equipment, appliances or tools).

The amount stated in any such notice of identification shall not limit the amount of the lien. Any inaccuracy in the naming of the contractor or other information in such notice shall not affect its validity provided there shall be actual notice.

SECTION 6. Section 5 of said chapter 254, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- A lien upon land for the erection, alteration, repair or removal of a building or other structure or other improvement of real property or a lien established under section seventy-six of chapter sixty-three, section six of chapter one hundred and eighty-three A, or subsection (a) of section twenty-nine of chapter one hundred and eighty-three B shall be enforced by a civil action brought in the superior court for the county where such land lies or in the district court in the judicial district where such land lies.

SECTION 7. Said section 5 of said chapter 254, as so appearing, is hereby further amended by striking out the third sentence and inserting in place thereof the following sentence:- An attested copy of the complaint, which shall contain a brief description of the property sufficient to identify it, and a statement of the amount due, shall be filed in the registry of deeds and recorded as provided in section nine within thirty days of the commencement of the action, or such lien shall be dissolved.

SECTION 8. Said chapter 254 is hereby further amended by striking out section 7, as so appearing, and inserting in place thereof the following section:-

Section 7. (a) No lien under section one shall avail against a mortgage duly registered or recorded unless the work or labor performed is in the erection, alteration, repair or removal of a building, structure, or other improvement to real property which erection, alteration, repair, removal, or improvement was actually begun prior to the recording of the mortgage.

(b) No lien under section two shall avail as against a mortgage duly registered or recorded to the extent of amounts actually advanced or unconditionally committed (i) prior to the filing or recording of the notice of contract, and (ii) after the filing or recording of the notice of contract but within twenty-five days after the last day of the period stated in an accurate duly executed partial waiver and subordination of lien in the form required by section thirty-two, except for the amount of retainage accurately stated in such partial waiver and subordination of lien.

(c) No lien under section four shall avail against a mortgage actually existing and duly registered or recorded to the extent of the amount actually advanced or unconditionally committed prior to the filing or recording in the registry of deeds of the notice required by section four.

(d) No lien under section two or four of this chapter shall avail as against a purchaser, other than the owner or person acting for or on behalf of, or with the consent of such owner who entered into the written contract on which the lien is based, whose deed or other instrument of title was duly registered or recorded prior to the filing or recording of such notices under said section two or four.

SECTION 9. Said chapter 254 is hereby further amended by striking out section 8, as so appearing, and inserting in place thereof the following section:-

Section 8. Liens under sections two and four shall be dissolved unless the contractor, subcontractor, or some person claiming by, through or under them, shall, not later than the earliest of: (i) ninety days after the filing or recording of the notice of substantial completion under section two A; (ii) one hundred and twenty days after the filing or recording of the notice of termination under section two B; or (iii) one hundred and twenty days after the last day a person, entitled to enforce a lien under section two or anyone claiming by, through or under him, performed or furnished labor or material or both labor and materials or furnished rental equipment, appliances or tools, file or record in the registry of deeds in the county or district where the land lies a statement, giving a just and true account of the amount due or to become due him, with all just credits, a brief description of the property, and the names of the owners set forth in the notice of contract. A lien under section one shall be dissolved unless a like statement, giving the names of the owner of record at the time the work was performed or at the time of filing the statement, is filed or recorded in the appropriate registry of deeds within the ninety days provided in said section. Nothing in this section shall prohibit the filing or recording of a statement under this section prior to the filing or recording of the notices under section two A or two B.

SECTION 10. Section 9 of said chapter 254, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- Any notice or any statement provided for in this chapter shall remain in the custody of the register and be open to public inspection.

SECTION 11. Section 11 of said chapter 254, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- The lien shall be dissolved unless a civil action to enforce it is commenced within ninety days after the filing of the statement required by section eight.

SECTION 12. Section 12 of said chapter 254, as so appearing, is hereby amended by striking out, in line 1, the word "in" and inserting in place thereof the following words:- , including the owner, in.

SECTION 13. Said section 12 of said chapter 254, as so appearing, is hereby further amended by striking out the last paragraph and inserting in place thereof the following paragraph:-

The register of deeds shall refuse to record the said bond if it be defective in form or substance, but no party to any such bond shall be discharged by any defect therein as against any party who has in good faith allowed his lien to be dissolved by lapse of time in reliance on the bond. The bond may be enforced by a civil action in the superior court or district court brought by any party in interest. An attested copy of the complaint shall be filed and recorded in the registry of deeds. No suit or action on the bond shall be commenced after the expiration of ninety days after the claimant last performed or furnished labor or labor and materials. Such bond shall not create any rights which the claimant would not have had, or impair any defense which the obligors would have had, in an action to enforce a lien.

SECTION 14. Section 14 of said chapter 254, as so appearing, is hereby amended by striking out the last sentence and inserting in place thereof the following:- The claimant may enforce the bond by a civil action commenced within ninety days after receipt of notice of recording of the bond, but such bond shall not create any rights which the claimant would not have had, or impair any defense which the obligors would have had, in an action to enforce a lien.

The bond shall be in the following form:

Know All Men By These Presents:

That we, __________ as principal and __________ duly organized to transact business as a surety within the Commonwealth of Massachusetts, as surety, are holden and stand firmly bound and obliged unto __________ in the penal sum of __________ Dollars ($__________), to the payment of which we bind ourselves, our heirs, successors and assigns, jointly and severally by these presents.

Whereas, under date of __________, the said obligee recorded a notice of contract in the registry of deeds, as Instrument #__________, in Book __________ at Page __________ upon premises more fully described in said notice, and

Whereas, the principal desires to dissolve said lien in accordance with the provisions of section fourteen of chapter two hundred and fifty-four of the General Laws.

Now, therefore, the condition of this obligation is such that if the said principal shall pay to the said obligee all sums which shall be adjudged in favor of the said obligee in an action brought under the provisions of said section fourteen, this obligation shall be void, otherwise to remain in full force and effect.

In witness whereof, the aforesaid principal and surety have executed this instrument under seal this __________ day of __________ 19__.