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Notice Compliance: You Can’t Trust the Recorder

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[quote style=”boxed” float=”left”]With the importance of making sure that documents are recorded in the proper location, [the recorder’s office should] be 1) aware of the document itself, 2) be aware of the necessity of filing the document, and 3) be able to get the document filed when requested.[/quote] Notice compliance can be difficult. Notices change from state to state, and project by project. Further complicating matters is that while most notices just need to be delivered to certain parties, usually the Property Owner and/or the General Contractor and others up-the-chain from the party providing notice, some notice are required to be filed.

Even more confusing, the location where the notice must be filed can differ depending on the state and the specific notice; some notices must be filed with the recorder of deeds for the county in which the project is located, some notices must be filed with the clerk of court, and some must be filed with electronic or online notice filing depository.

Recorders Cannot Be Trusted to Know Filing Requirements

When a notice must be recorded, rather than merely delivered to certain parties, the location where the notice is recorded is vital. If a notice is required to be recorded in the office of the register of deeds, that is where it must be recorded. The failure to comply with all of the specific requirements can compromise the validity of the notice as a whole. Spending the time to know that notice is required, that the notice must be recorded rather than mailed, and making sure that all the required information is included on the face of the notice itself can all go out the window if the notice is filed in the wrong spot.

With the importance of making sure that documents are recorded in the proper location, one might think that the people at that particular location would be 1) aware of the document itself, 2) be aware of the necessity of filing the document, and 3) be able to get the document filed when requested. Unfortunately, as seen in the example below, this is not always the case.

Missouri Counties Unaware of Missouri Requirements

In certain situations related to residential property, Missouri mechanics lien law requires notice to be filed, rather than delivered via mail or personal service. This is a complicated rule, to be sure, but essentially for some residential projects a “Notice of Rights” must be filed by the potential lien claimant if a “Notice of Intended Sale” has been filed regarding the property at issue. This is set forth in V.A.M.S. § 429.016(3):

Any person or entity, hereinafter referred to as claimant, who seeks to retain the right to assert a mechanic’s lien against residential real property, hereinafter referred to as property, shall record a notice of rights in the office of the recorder of deeds for the county in which the property is located, not less than five calendar days prior to the intended date of closing stated in a notice of intended sale as contemplated in this section.

Note that the Notice is specifically required by statute, and the statute itself sets forth the office in which the Notice must be recorded.

None of the above, however, has apparently made it through to some counties in Missouri. During a recent discussion a colleague had with a certain Missouri recorder’s office, they had never heard of the Notice of Rights document, had no recording code or ability to get the document recorded with any specificity, and suggested that it should be filed with the Clerk of Court as a “miscellaneous civil action”. The Clerk of Court, likewise, had no knowledge of that particular notice, although to be fair, there is no reason for the Clerk of Court to have that knowledge, but said that for an exorbitant fee, the document could be recorded if a miscellaneous civil action was opened.

This is troubling. The recorder should record whatever they are presented. If they are not familiar with the document it should make no difference, the job of the recorder is to record, not to make legal determinations of sufficiency or necessity. But, even more troubling, is the disregard for, or ignorance of, a specific statutory mandate for the recording of a certain document.

Note the following language in Missouri statutes, emphasis added:

V.A.M.S. § 429.016(3): …shall record a notice of rights in the office of the recorder of deeds for the county in which the property is located…

V.A.M.S. § 429.016(9): The notice of rights shall be recorded by the claimant in the office of the recorder of deeds of the county in which the property is located.

V.A.M.S. § 429.016(10): The recorder of deeds shall record such notice of rights in the land records and index notice of rights such that owners shall be deemed grantors and claimants shall be deemed grantees, and the grantor’s signature shall not be required for recording.

This statutory language leaves no room for doubt that the recorder of deeds must record a Notice of Rights. The fact that some recorders of deeds in Missouri do not know that, and claim an inability to do so is frustrating, and can be severely detrimental to a potential lien claimant. While it is likely that those counties would record the notice when pressed, doing that pressing takes time. And, as we’ve discussed many times in the past, timing is everything when it comes to notice compliance. Potential lien claimants must not just know their rights and requirements, they must sometimes actively fight for them.

Last Updated on Dec 03, 2018
Published on Nov 07, 2013

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Nate, along with being a husband, father, Eagle Scout, Teen Jeopardy! contestant, and musician, is the Chief Legal Officer and General Counsel at zlien, a vertical SaaS platform designed to help construction industry participants by promoting a collaborative construction payment process. Nate was recently recognized as one of the nation's Top General Counsels, and is working to get better at it every day. Nate is a licensed attorney in Louisiana and Texas, and a graduate of Stanford University (B.A.) and Tulane Law School (J.D.). He manages and oversees the Lien Genome and zlien's products, processes, and resources, directs the Construction Payment Blog, protects zlien's interests and intellectual property, and performs general counsel duties.

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