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TITLE
34 PROPERTY
CHAPTER 34-28 MECHANICS’ LIENS
34-28-1 Improvements by Consent of Owner - Contracts Barring
Enforcement of Lien Against Public Policy
34-28-2 Improvements by Consent of Tenant or Lessee
34-28-3 Improvements by Consent of Owner of Less Than Freehold
34-28-4 Notice of Intention to Claim Lien
34-28-5 Recording Notice of Intention
34-28-6 [Repealed.]
34-28-7 Lien of Architect or Engineer
34-28-8 Land Subject to Lien
34-28-9 Effective Period of Notice
34-28-10 Petition to Enforce Lien - Lis Pendens Notice
34-28-11 Contents of Lis Pendens
34-28-12 Recording of Lis Pendens
34-28-13 Form of Petition to Enforce Lien
34-28-14 Notice of Petition to Owners and Encumbrancers
34-28-15 Contents and Service of Citation to Owners and Encumbrancers
34-28-16 Entry of Appearance and Filing of Account or Claim
34-28-16.1 Petition to Foreclose Mortgage
34-28-16.2 Proceedings in Superior Court
34-28-17 Dismissal of Petition, Notice of Lien, and Release
of Lien Upon Deposit in Court
34-28-18 Consolidation of Proceedings by Different Lienholders
34-28-19 Costs of Proceedings
34-28-20 Persons Entitled to Contest Claims
34-28-21 Decree Ordering Sale
34-28-22 Court Instructions as to Sale
34-28-23 Application of Proceeds of Sale
34-28-24 Master’s Bond
34-28-25 Priority of Liens
34-28-26 Subordination or Release of Lien
34-28-27 Direct Payment on Release of Lien
34-28-28 Damages on Withholding Direct Payment or Consent
Thereto
34-28-29 Form of Demand for Direct Payment
34-28-30 Suit on Bond to Secure Payment
34-28-31 Application to Governmental Agencies
34-28-32 Contractor Excused From Completing Work Upon Filing
of Petition
34-28-32.2 Construction
34-28-33 Remedy of Chapter Not Exclusive
34-28-34 Definitions
34-28-35 Short Title
34-28-36 Severability
34-28-37 Form of Real Estate Description
GENERAL LAWS OF RHODE ISLAND
TITLE 34 PROPERTY
CHAPTER 34-28 MECHANICS’ LIENS
34-28-1 Improvements by Consent of Owner - Contracts Barring
Enforcement of Lien Against Public Policy
(a) Whenever any building, canal, turnpike, railroad, or other
improvement shall be constructed, erected, altered, or repaired
by oral or written contract with or at the oral or written
request of the owner, the owner being at the time the owner
of the land on which the improvement is located, or by the
husband of such owner with the consent of his wife, the building,
canal, turnpike, railroad, or other improvement, together
with the land, is hereby made liable and shall stand subject
to liens for all the work done by any person in the construction,
erection, alteration, or reparation of such building, canal,
turnpike, railroad, or other improvement, and for the materials
used in the construction, erection, alteration, or reparation
thereof, which have been furnished by any person.
(b) A covenant, promise, agreement of understanding in, or
in connection with or collateral to, a contract or agreement
relative to the construction, alteration, repair, or maintenance
of a building, structure, appurtenance and appliance, including
moving, demolition and excavating connected therewith, purporting
to bar the filing of a notice of intention or the taking of
any steps to enforce a lien as set forth in this chapter is
against public policy and is void and unenforceable. This
section shall not preclude a requirement for a written waiver
of the right to file a mechanic’s lien executed and
delivered by a contractor, subcontractor, material supplier,
or laborer simultaneously with or after payment for the labor
performed or the materials furnished has been made to such
contractor, subcontractor, material supplier, or laborer.
34-28-2 Improvements by Consent of
Tenant or Lessee
Whenever any building, canal, turnpike, railroad, or other
improvement shall be constructed, erected, altered, or repaired
by oral or written contract with or at the oral or written
request of any lessee or tenant thereof, or by the husband
of the lessee or tenant with the consent of his wife, the
interest and title of the lessee or tenant in the building,
canal, turnpike, railroad, or other improvement, and in the
land on which the improvement is located, shall stand subject
to liens for all the work done by any person in the construction,
erection, alteration, or reparation of the building, canal,
turnpike, railroad or other improvement, and for the materials
used in the construction, erection, alteration, or reparation
thereof, which have been furnished by any person, but not
the interest or title of the landlord of such lessee or tenant,
unless the consent in writing of the landlord is first obtained,
assenting to the construction, erection, alteration, or reparation.
34-28-3 Improvements by Consent of Owner of Less Than Freehold
Whenever any building, canal, turnpike, railroad, or other
improvement shall be constructed, erected, altered, or repaired
by oral or written contract with or at the oral or written
request of the owner, the owner being at the time less than
sole owner of the fee simply (including, without restricting
the foregoing, a life tenant, tenant in common, joint tenant,
and tenant by entirety), or by the husband of the owner with
the consent of his wife (and, in the case of a tenant by entirety,
no lien shall be had either against the husband’s or
the wife’s interest in the improvement unless the consent
is given), the building, canal, turnpike, railroad, or other
improvement, together with the title and interest of the owner
in the land on which the improvement is located, shall stand
subject to liens for all the work done by any person in the
construction, erection, alteration, or reparation of such
building, canal, turnpike, railroad, or other improvement,
and for the materials used in the construction, erection,
or reparation thereof, which have been furnished by any person,
but not the interest or title of any other owner of an estate
in such land, unless the consent in writing of the other owner
is first obtained, assenting to the construction, erection,
alteration, or reparation.
34-28-4
Notice of Intention to Claim Lien
(a) Except as provided in § 34-28-7, any and all liens
claimed or that could be claimed under §§ 34-28-1,
34-28-2 or 34-28-3 shall be void and wholly lost to any person
claiming under those sections unless the person shall, before
or within one hundred and twenty (120) days after the doing
of such work or the furnishing of such materials, mail by
prepaid registered or certified mail, in either case return
receipt requested, a notice of intention, hereinafter described,
to do work or furnish material, or both, together with a statement
that the person so mailing may within one hundred twenty (120)
days after the doing of the work or the furnishing of the
materials, file a copy of such notice of intention in the
records of land evidence in the city or town in which the
land generally described in such notice of intention is located
and a further statement that the mailing of the notice of
intention and the filing of the copy will perfect a lien of
the person so mailing against the land under and subject to
the provisions of this chapter, to the owner of record of
the land at the time of the mailing, or, in the case of a
lien against the interest of any lessee or tenant, to the
lessee or tenant, the mailing to be addressed to the last
known residence or place of business of the owner or lessee
or tenant, but if no residence or place of business is known
or ascertainable by the person making the mailing by inquiry
of the person with whom the person making the mailing is directly
dealing or otherwise, then the mailing under this section
shall be to the address of the land, and also shall before
or within one hundred twenty (120) days after the doing of
the work or the furnishing of the materials file a copy of
the notice of intention in the records of land evidence in
the city or town in which the land generally described in
the notice of lien is located. The mailing of the notice of
intention and the filing of the copy in the land evidence
records together with the mailing of another copy thereof
as hereinbelow provided shall perfect, subject to other sections
of this chapter, the lien of the person so mailing and filing
as to work done or materials furnished by the person during
the one hundred and twenty (120) days prior to the mailing
and thereafter, but not as to work done or materials furnished
by the person before the one hundred and twenty (120) days
prior to the mailing, any lien for which shall be void and
wholly lost. In the event that the notice of intention, having
been mailed, shall be returned to the person mailing the notice,
not having been delivered for any reason, the lien of the
person so mailing shall be void and wholly lost, notwithstanding
any other provision of this section, unless such person shall,
within thirty (30) days after the return of the notice of
intention, and in no event more than one hundred twenty (120)
days after the mailing of the notice, file the notice together
with the envelope in which the notice was returned, in the
place and manner and with the consequences hereinbefore provided
for the filing of a copy of the notice of intention, and the filing shall be in lieu of any filing required at any other
time under this section.
(b) The notice of intention shall be executed under oath and
shall contain:
(1) The name of the owner of record of the land at the time
of the mailing, or in the case of a lien against the interest
of any lessee or tenant, the name of the lessee or tenant,
and the mailing address of the owner or lessee, the name and
address to be located at the upper left hand corner of the
notice, in addition to the text of the notice, as described
in subsection (c);
(2) A general description of the land sufficient to identify
it with reasonable certainty, including, for example only,
street name and number, if available;
(3) A general description of the nature of the work done or
to be done, or of the materials furnished, or to be furnished,
or both, and the approximate value thereof as of the date
of the notice;
(4) The name and address of the person or persons for whom
directly the work has been done or is to be done, or to whom
directly the materials have been furnished or are to be furnished;
(5) The name and address of the person mailing the notice
and the name of the individual person or persons whose signature
will bind the person so mailing on all matters pertaining
to the notice or any lien claimed thereunder, or release thereof.
(6) A statement that the person mailing the notice has not
been paid for the work done or materials furnished or both.
(c) The notice may be in substantially the following form:
(Name of owner of record/Lessee)
(Address of owner/Lessee)
NOTICE OF INTENTION TO DO WORK OR FURNISH MATERIALS, OR BOTH
All persons are hereby notified that the undersigned has within
the one hundred and twenty (120) days prior to the mailing
hereof done work, furnished materials, or both, and/or intends
to do so in the future (cross out inappropriate words), in
the construction, erection, alteration, or preparation of
an improvement on land described as follows: (here insert
description) and that the land is owned by or leased to (here
insert name of owner or lessee or tenant). The nature of the
work being done or materials being furnished is as follows:
(here insert general description of the nature of the work
or materials, or both) and is being done for or furnished
to (here insert name of person or persons for whom directly
the work is being done or to whom directly the materials are
being furnished), whose address is (here insert address).
The approximate value of said work or materials is, as of
the date of the notice, $______, and the undersigned has not
been paid for the work or materials or both; The undersigned
authorizes (here insert name or names) to act or sign documents
in behalf of the undersigned in all matters pertaining to
this notice, or any lien claimed hereunder, or release thereof.
You are hereby informed that the undersigned may within one
hundred twenty (120) days of the performance of the work or
furnishing of the materials, file in the records of land evidence
of the city or town of (here insert name of city or town)
a copy of this notice of intention to do work or furnish materials.
The filing of the notice of intention, together with this
mailing, will perfect a lien against the land described herein,
under and subject to the provisions of the Rhode Island Mechanics’
Lien Law.
(Name and address of person filing notice)
NOTARIZATION CLAUSE
Signed and sworn before me this ____________ day of ____________,
Notary Public
My Commission Expires:
This notice of intention to claim a lien shall be null and
void as to a bona fide purchaser for value, of the land in
question, unless the notice is filed in the land evidence
records in the city or town where the real estate is located
before or within forty (40) days of the doing of the work
or the furnishing of the materials.
34-28-5
Recording Notice of Intention
Every town clerk and every recorder of deeds, as the case
may be, shall, on payment of a fee of eight dollars ($ 8.00)
for each notice of intention, record the notices of intention
provided for in § 34-28-4, whether in the form therein
provided or not, in a book to be kept by him or her for that
purpose, with the time and date when the notices of intention
are received and recorded by him or her; he or she shall also
maintain an alphabetical index of the owners and lessees or
tenants mentioned in all notices of intention, so recorded,
provided, however, that the town clerk may refuse for recording
any notice of intention which fails to reference the name
of the owner of record, or lessee, pursuant to § 34-28-4(b).
34-28-6 [Repealed.]
34-28-7 Lien of Architect or Engineer
The lien, under §§ 34-28-1, 34-28-2 or 34-28-3,
of any architect or engineer, or of any immediate or mediate
subcontractor thereto, for work done in connection with the
construction, erection, alteration, or reparation, the result
of which is used therein, shall be valid and enforceable under
the provisions of this chapter if and only if a notice of
intention provided for in § 34-28-4, is mailed and filed
in accordance therewith by the architect, engineer, or such
subcontractor thereto, the mailing and filing in the land
evidence records to be before the later of one hundred twenty
(120) days of the performance of the work or ten (10) days
after the actual and visible commencement, by excavation or
otherwise, of the construction, erection, alteration or reparation.
34-28-8
Land Subject to Lien
A notice of intention may be mailed and filed under §
34-28-4 against one or more contiguous parcels of land or
parcels of land separated only by a public or private way,
provided such parcels are owned, or occupied as lessee or
tenant, by the same person or persons, and in such case the
lien under the provisions of §§ 34-28-1, 34-28-2,
34-28-3 or 34-28-7 shall be against all of the parcels of
land and all of the buildings, canals, turnpikes, railroads,
or other improvements thereon in accordance with the tenor
of those sections, or against the interest of the lessee or
tenant therein, if the work is done or the materials are used
on any of the parcels, or in any of the buildings, canals,
turnpikes, railroads, or other improvements.
34-28-9
Effective Period of Notice
A notice of intention filed under § 34-28-4 shall cover
all work done on materials furnished, or both, within its
terms, and shall be effective only for one hundred twenty
(120) days from the date of filing.
34-28-10 Petition to Enforce Lien -
Lis Pendens Notice
(a) Any and all liens under the provisions of § 34-28-1,
34-28-2, 34-28-3, or 34-28-7 regardless of the mailing and
filing of a notice of intention under § 34-28-4 or any
exemption therefrom, shall be void and wholly lost to any
person claiming a lien under those sections, unless the person
shall file a petition to enforce the lien, described in §
34-28-13, in the superior court for the county in which is
situated the land upon which the building, canal, turnpike,
railroad, or other improvement is being or has been constructed,
erected, altered, or repaired, and unless such person shall
also file in the records of land evidence in the city or town
in which such land is located a notice of lis pendens, described
in § 34-28-11, the petition to be filed on the same day
as the notice of lis pendens, or within seven (7) days thereafter,
and both the petition and the notice of lis pendens to be
filed within one hundred twenty (120) days of the date of
the recording of the notice of intention provided in §
34-28-4 and § 34-28-7. The lien of any person under §
34-28-1, 34-28-2, 34-28-3 or 34-28-7 who fails to file a petition
and notice of lis pendens under this section within the required
one hundred twenty (120) day period, shall be void and wholly
lost as to work done or materials furnished prior to the one
hundred twenty (120) day period, regardless of the fact that
the person may thereafter do other work or furnish other materials
in the course of the same construction, erection, alteration,
or reparation.
(b) The power of sale contained in a mortgage on any real
property subject to a lien created by this chapter shall not
be effected by the filing of a notice of lien as provided
in § 34-28-4 and § 34-28-7, provided, however, the
power of sale shall be suspended by the filing of a petition
to enforce as provided in this section and the power of sale
shall only be exercised thereafter in accordance with the
provisions of § 34-28-16.1.
34-28-11 Contents of Lis Pendens
(a) The notice of lis pendens required to be filed under §
34-28-10 shall state that the person filing the notice of
lis pendens that day has filed or will file within seven (7)
days in the superior court a petition to enforce a mechanics’
lien, and shall also contain:
(1) The name of the person against whom the petition has been
or will be filed and the relationship of the person to the
land upon which the building, canal, turnpike, railroad, or
other improvement is being or has been constructed, erected,
altered, or repaired;
(2) A description of the land by metes and bounds, or by reference
to a recorded plat, by tax assessor’s lot and plat,
or by other legal description;
(3) The amount claimed in the petition to be due to the petitioner;
(4) The dates of the mailing and of the filing of any notice
of intention under § 34-28-4 and renewal notices under
§ 34-28-9, if any, and the name and address of the person
to whom any mailing under § 34-28-4 was made;
(5) The name and address of the petitioner and of his or her
attorney, if any.
(b) The notice of lis pendens may be in substantially the
following form:
NOTICE OF LIS PENDENS
All persons are hereby notified that the undersigned this
day has filed or will file within seven (7) days hereafter,
in the superior court for ______ County, a petition to enforce
a mechanics’ lien against (here insert name of the person
against whom the petition has been or will be filed and his
or her relationship to the land), concerning land described
as follows: (here insert description of land). The undersigned
asserts that there is due to him or her the sum of (here insert
the amount claimed) under the mechanics’ lien, which
is based upon a notice of intention, under § 34-28-4
of the mechanics’ lien law, mailed to (here insert name
and address of person to whom mailing was made) on (here insert
date of mailing) and filed in the records of land evidence
of the city or town of (here insert name of city or town)
on (here insert date of filing of notice). The attorney for
the undersigned is (here insert name and address of attorney).
(Name and address of person filing notice of lis pendens)
34-28-12 Recording of Lis Pendens
Every town clerk and every recorder of deeds, as the case
may be, on payment of a fee as provided in § 34-13-7
for each notice of lis pendens, shall record the notices of
lis pendens provided for in §§ 34-28-10 and 34-28-11,
whether in the form therein provided or not, in the book provided
for in § 9-4-9, and shall maintain as part of the index
of the book an alphabetical index of the owners or lessees
or tenants mentioned in all notices or lis pendens so recorded.
34-28-13 Form of Petition to Enforce
Lien
The petition to enforce a lien, filed under § 34-28-10,
shall set forth the particulars of the account or demand for
which the petitioner claims a lien including the amount claimed,
extras, payment made, the date or dates upon which work was
done or materials furnished, shall recite the actions taken
under this chapter by the petitioner for the perfection of
such lien, shall particularly describe the building, canal,
turnpike, railroad, improvement, and land, and the estate
and title in the improvement upon which the petitioner claims
a lien. It shall include specific dates of performance of
the work, providing of materials, nature of each performance,
and shall pray that the lien may be enforced against the improvement,
and that the improvement may be sold to satisfy the account
or demand and all other accounts and demands for which the
improvement is liable and stands subject to liens under §
34-28-1, 34-28-2, 34-28-3 or 34-28-7; the petition shall also
contain a list of the names and addresses of all persons who
have filed notices of intention under § 34-28-4 and a
list of all persons who have any recorded title, claim, lease,
mortgage, attachment or other lien or encumbrance (other than
under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7) with relation
to, on or against the building, canal, turnpike, railroad,
improvement, or land or any part thereof.
34-28-14 Notice of Petition to Owners
and Encumbrancers
Upon filing of the petition, the clerk of the superior court
shall, by one advertisement to be inserted in some public
newspaper published in the city or town where the property
against which the lien is claimed is located, but, if there
shall be no public newspaper published in the city or town,
then by one advertisement in some public newspaper published
in the county where the property is located, which one advertisement
shall, with the service of the citation set forth in §
35-28-15, notify all persons having a lien, by virtue of this
chapter, or any title, claim, lease, mortgage, attachment,
or other lien or encumbrance, or any unrecorded claim on all
or any part of the same property, to respond in accordance
with § 34-28-16 to the court on the return day of the
citation mentioned in § 34-28-15, and make out their
demands against the property; and the clerk shall issue a
citation to each person whose name appears on the list, made
a part of the petition by § 34-28-13, of all persons
who have any recorded title, claim, lease, mortgage, attachment,
or other lien or encumbrance (other than under § 34-28-1,
34-28-2, 34-28-3, or § 34-28-7) on a day certain to respond
in accordance with § 34-28-16 and show cause, if any
they have, why the lien should not be allowed and enforced
for the amount claimed. The petitioner shall, at least ten
(10) days before the return day of the citation mentioned
in § 34-28-15, mail, postage prepaid, a copy of the advertisement
provided for in this section (printed, typewritten, or otherwise
reproduced) to each person who has filed a notice of intention
under § 34-28-4.
34-28-15
Contents and Service of Citation to Owners and Encumbrancers
Every citation issued under § 34-28-14 shall contain
the substance of the petition and shall be served on the parties
by a sheriff or deputy sheriff or constable at least ten (10)
days before the return day of the citation, by leaving an
attested copy at the last and usual place of abode of each
of the persons to be cited or by reading the citation in their
presence and hearing, if they reside in this state, otherwise
by mailing the citation, by registered or certified mail,
to the persons prepaid, addressed to their last known residence
or place of business, and if no residence or place of business
is known, no further service shall be necessary, other than
service by advertisement provided for in § 34-28-14.
34-28-16
Entry of Appearance and Filing of Account or Claim
(a) The liens, under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7,
of all persons, except the persons who have mailed and filed
notices of intention under § 34-28-4 before the filing
of the petition and who have not been mailed a copy of the
advertisement as provided in § 34-28-14 and who have
no actual knowledge, on or before the return day of the citation
provided for in §§ 34-28-14 and 34-28-15, of the
pendency of the petition, and the title, claim, lease, mortgage,
attachment, or other lien or encumbrance of all persons who
have any title, claim, lease, mortgage, attachment, or other
lien or encumbrance (other than under § 34-28-1, 34-28-2,
34-28-3 or 34-28-7) to or in the property which is the subject
matter of the petition, except the persons who have recorded
the lien or encumbrance before the filing of the petition
and who have not been served with or mailed a citation as
provided in § 34-28-15 and who have no actual knowledge,
on or before the return day, of the pendency of the petition,
shall be subordinated to the claim of the petitioner, and
persons claiming liens pursuant to this chapter, and any other
person having any mortgage, attachment, or other lien or encumbrance
who have entered an appearance as a party in the cause, unless
the person shall, within twenty (20) days after the return
day, or within such other time as may be allowed by the superior
court pursuant to Rule 60(b) of the Superior Court Rules of
Civil Procedure enter an appearance as a party in the cause
commenced by the petition described in §§ 34-28-10
and 34-28-13.
(1) In the case of persons claiming a lien under § 34-28-1,
34-28-2, 34-28-3 or 34-28-7, file an account and demand containing
the matters provided in § 34-28-13 for a petition to
enforce a lien, except that the account and demand need not
contain a list of the names and addresses of the persons who
have filed notices of intention under § 34-28-4, nor
a list of all persons who have any recorded title, claim,
lease, mortgage, attachment, or other lien or encumbrance,
or
(2) In the case of persons who have any title, claim, lease,
mortgage, attachment, or other lien or encumbrance (other
than under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7), file
a claim setting forth the particulars thereof and praying
for the relief and priority to which the person shall deem
himself or herself entitled.
(b) Nothing in this section shall, however, bar any claim
for a lien under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7,
by any person for work done or materials furnished, provided
the person complies with the requirements of this chapter.
34-28-16.1 Petition to Foreclose Mortgage
At any time after the filing of a petition under § 34-28-10,
the holder of a mortgage having a priority over liens existing
under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7 may petition
the court to exercise the power of sale contained in the mortgage
and the court shall grant the petition to foreclose, after
notice to all interested parties and hearing thereon, upon
a showing by the mortgagee that the mortgage is valid, entitled
to priority and is in default, except for a default arising
from the filing of a petition to enforce pursuant to §
34-28-10.
34-28-16.2 Proceedings in Superior Court
After the filing with the court of all claims pursuant to
§ 34-28-16, the proceedings shall continue pursuant to
the rules of civil procedure, in a nonjury proceeding.
34-28-17 Dismissal of Petition, Notice
of Lien, and Release of Lien Upon Deposit in Court
At any time after the recording of a notice of intention or
after the filing of a petition to enforce a lien under §§
34-28-10 and 34-28-13, the owner or lessee or tenant of the
land described in the notice or petition may pay into the
registry of the court in the county in which the land is located
cash equal to the total amount of the notice of intention
and the accounts and demands of all persons claiming liens
therein under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7,
including costs of the lien holder, or may, in lieu of cash,
deposit in the registry of the court the bond of a surety
company licensed to do business in this state in the total
amount running to all persons claiming liens under §§
34-28-10 and 34-28-13, and on proper proof of payment or deposit
and on motion of the owner or lessee or tenant, any justice
of the superior court shall enter ex parte an order discharging
the notice of intention and lis pendens and dismissing the
cause as to the owner or lessee or tenant and as to all persons
having any title, claim, lease, mortgage, attachment or other
lien or encumbrance (other than under § 34-28-1, 34-28-2,
34-28-3 or 34-28-7), and on the entry of the order, the building,
canal, turnpike, railroad or other improvement and the land
on which the improvement is being or has been constructed,
erected, altered, or repaired shall be released and discharged
from the notices of intentions and accounts and demands, but
the rights of all persons having any title, claim, lease,
mortgage, attachment or other lien or encumbrance (other than
under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7) shall be
the same as if no notices of intention under § 34-28-4
had been mailed or filed and as if no petition under §§
34-28-10 and 34-28-13 had been filed. In the event that a
payment is made into the registry of court in accordance with
this section, any person, having a contract directly with
the person making the payment, may be permitted, after notice
to all parties under the petition and after hearing in open
court, to withdraw from the registry of court the sum of money
due to him or her under the contract, provided that the person
making the withdrawal first furnish a bond, payable to the
clerk of court, with good and sufficient corporate surety,
for the repayment of the amount, or as much thereof as may
be necessary to satisfy claims thereinafter allowed by the
court.
34-28-18
Consolidation of Proceedings by Different Lienholders
If more than one petition under §§ 34-28-10 and
34-28-13 are filed against the same or any part of the same
property, like proceedings shall be had on each, and each
petitioner shall give, upon motion of any person interested
in the petition made at any time, surety for costs, unless
he or she is an inhabitant of the state; but all such petitions
against the same or any part of the same property shall be
consolidated after the returns of the citations, and shall
proceed as one.
34-28-19
Costs of Proceedings
The costs of the proceedings shall in every instance be within
the discretion of the court as between any of the parties.
Costs shall include legal interest, costs of advertising,
and all other reasonable expenses of proceeding with the enforcement
of the action. The court, in its discretion, may also allow
for the award of attorneys’ fees to the prevailing party.
34-28-20
Persons Entitled to Contest Claims
Every respondent to any petition and every person claiming
to have a lien under § 34-28-1, 34-28-2 or 34-28-3 on
the property described therein or on any part thereof, and
every person claiming an interest therein by title, claim,
lease, mortgage, attachment, or other lien or encumbrance,
may contest the right of the petitioner and of all others
claiming a lien under this chapter to the property or any
part thereof to any lien, as well as the amount of the claim.
34-28-21
Decree Ordering Sale
The court shall, upon motion made by the petitioner, respondent,
or any other person, party to the proceedings, claiming to
have a lien on the property or any part thereof under §
34-28-1, 34-28-2, 34-28-3 or 34-28-7, had any claim against
the property at the time of filing the petition, or on becoming
a party to the proceedings, the court shall, by itself or
by a master to be appointed by it for that purpose, proceed
to ascertain the exact nature and amount of each claim on
the property or any part thereof, made by or belonging to
any party to the proceedings, the amount of which to be allowed
and paid shall be computed on the basis of the value of the
property prior to the construction, erection, alteration,
or reparation which is the subject matter of the petition,
and the order in which, in accordance with § 34-28-25,
they should be paid, and, in the event no payment has been
made into the registry of the court as provided in §
34-28-17, how much of the property, and especially how much,
if any, and what portions of land under and adjoining the
same, subject to sale by the provisions of this chapter, should
be sold to satisfy the claims; and thereupon the court shall
decree the property or some part of it, or the interest of
the person respondent in the property or some part of it at
the time the lien accrued, to be sold by and under the direction
of a master to be appointed for that purpose, with instructions,
restrictions, and conditions as it shall give in the premises,
and the master shall make the sale in accordance with the
instructions, restrictions and conditions, free and clear
of all titles, claims, leases, mortgages, attachments, or
other liens or encumbrances (including all liens under §
34-28-1, 34-28-2, 34-28-3 or 34-28-7 and all rights of dower
and curtesy), except of persons who have rights which are
excepted in § 34-28-16 from being void and wholly lost
unless an appearance and account and demand or claim is filed
in accordance therewith.
34-28-22 Court Instructions as to Sale
In every decree of sale the court shall prescribe the notice
that shall be given of the sale, and shall also give therein
instructions and particular directions as each case may require,
and upon application to the court, at any time, further instructions
and directions may be given from time to time in relation
thereto.
34-28-23 Application of Proceeds of
Sale
The proceeds of the sale, after payment of the master’s
fees, costs and incidental charges as shall be allowed by
the court, shall be applied by the master, according to his
or her instructions from the court, to the payment of the
claims as marshaled and ascertained, and the balance, if any,
which shall remain after payment thereof, shall be paid over
by the master to the owner or the lessee or tenant of the
property, as the case may be.
34-28-24 Master’s Bond
The court may, in its discretion, require of the master bond
or bonds with surety or sureties in such sum and to the person
or persons as it may direct, securing the faithful application
of the proceeds of sale, and may from time to time remove
the master on account of any noncompliance with its order
or decree, and appoint a new master in his or her stead.
34-28-25
Priority of Liens
(a) The priority of liens under §§ 34-28-1, 34-28-2,
34-28-3 and 34-28-7 shall be as follows:
(1) Except as provided in subdivision (a)(3), as between persons
having valid liens under this chapter, all of the lien holders
shall share pro rata in the distribution of funds received
by deposit under § 34-28-17 or of the proceeds of any
sale under § 34-28-21, based on the amount of their claim
plus their additional expenses of filing and advertising,
if any.
(2) Except as provided in subdivision (1), the priority of
persons mailing and filing notices of intention under §
34-28-4 shall date from the date of the filing; the lien of
the persons shall be senior to any subsequently recorded title,
claim, lease, mortgage, attachment, or other lien or encumbrance
(other than under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7),
and the lien of such persons shall be junior to any prior
recorded title, claim, lease, mortgage, attachment, or other
lien or encumbrance (other than under § 34-28-1, 34-28-2,
34-28-3 or 34-28-7). Any person having an existing lien under
§ 34-28-1, 34-28-2, 34-28-3 or 34-28-7 subject to any
prior recorded mortgage, attachment, or other lien or encumbrance
may pay off the prior mortgage, attachment, or other lien
or encumbrance and shall be subrogated to all of the rights
of the holder of the prior mortgage, attachment, or other
lien or encumbrance.
(3) In the event that there shall be recorded any title, claim,
lease, mortgage, attachment, or other lien or encumbrance
(other than under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7)
junior to any liens under § 34-28-1, 34-28-2, 34-28-3
or 34-28-7 in accordance with subdivision (2) and senior to
other liens, then the liens under § 34-28-1, 34-28-2,
34-28-3 or 34-28-7 senior to the title, claim, lease, mortgage,
attachment, or other lien or encumbrance shall be separated
from the liens junior to the lien or encumbrance, and the
senior liens shall be senior to the title, claim, lease, mortgage,
attachment, or other lien or encumbrance, and the junior liens
shall be junior thereto.
(b) Priority between persons whose claims are not specifically
provided for in this section shall be determined by the court
or master in accordance with equity and good conscience.
34-28-26 Subordination or Release of
Lien
Any subordination agreement or release, bearing the signature
of any person with authority to sign the agreement or release,
or of the person who is designated in a notice of intention
under § 34-28-4 as the person whose signature will bind
the person filing the notice, which purports to subordinate
or release any lien under § 34-28-1, 34-28-2, 34-28-3
or 34-28-7 whether for work done or materials furnished prior
to the agreement or release, or thereafter, or both, notwithstanding
the fact that no consideration is given therefore, shall be
enforceable according to its terms, by any other person who
has changed his or her position in any way in reliance upon
the subordination agreement or release, whether the other
person is otherwise obligated to make the change of position
or not.
34-28-27
Direct Payment on Release of Lien
Any person entitled to any lien under § 34-28-1, 34-28-2
or 34-28-3 who releases the lien before receiving payment
for the work done or materials furnished forming the basis
of the lien, shall be entitled to demand and receive direct
payment therefore from the owner or lessee or tenant or other
person as may be obligated or permitted to make the payment
on behalf of the owner or lessee or tenant, provided that
the person entitled to the lien first obtains the written
consent of all persons in line of privity between him or her
and the owner or other person; on presentation of a proper
demand for the payment, the owner or lessee or tenant or other
person shall, if satisfied as to the amount thereof, make
payment, on proper receipt therefore, and credit shall be
given therefore by all persons in line of privity between
the owner or other person and the person releasing the lien.
34-28-28 Damages on Withholding Direct
Payment or Consent Thereto
No person in the line of privity referred to in § 34-28-27
shall unreasonably withhold his or her written consent to
a direct payment, nor shall any owner or lessee or tenant
or other person referred to in § 34-28-27 unreasonably
withhold a direct payment, and, if the person or owner or
lessee or tenant or other person shall unreasonably withhold
consent therefore or payment thereof, he or she shall be liable
for any damages as may accrue as the natural and probable
consequences thereof.
34-28-29
Form of Demand for Direct Payment
A demand for direct payment under § 34-28-27 shall be
sufficient in substantially the following form:
DEMAND FOR DIRECT PAYMENT
To: (here insert name of owner or lessee or tenant, or of
other person as may be obligated or permitted to make payments
on behalf of the owner or lessee or tenant).
The undersigned hereby releases his or her lien against (here
describe the building, canal, turnpike, railroad, or other
improvement and the land on which it is situated, which description
shall be sufficient to identify it generally with reasonable
certainty) owned by or leased to (here insert name of owner
or lessee) for work done or materials furnished by the undersigned,
as follows:
(Here insert a general description of the work done or materials
furnished, with amounts and dates the work was performed).
The undersigned had taken the following steps to perfect the
lien: (Here insert the steps taken to perfect the lien under
this chapter).
The persons in line of privity between you and the undersigned
are as follows: (Here insert names of all persons in line
of privity).
Each of the persons has endorsed his or her approval to this
demand. Wherefore, the undersigned demands payment from you
of the sum of (here insert amount). ________________________________________
(Here insert signature and address of person making demand)
Approved:
________________________________________________________
________________________________________________________
________________________________________________________
________________________________________________________
(Here insert signatures of persons in line of privity) Payment
received ________________________________________________
(For signature of person demanding payment, when he or she
has received the same)
34-28-30 Suit on Bond to Secure Payment
If any bond is given to secure payment for work done or materials
furnished on account of the construction, erection, alteration,
or reparation of any building, canal, turnpike, railroad,
or other improvement or on account of any contract between
the owner or lessee or tenant of the land on which the improvement
is or shall be constructed, erected, altered, or repaired
and any other person, the bond shall enure to the benefit
of any person who does any work in the construction, erection,
alteration, or reparation thereof, or who furnishes any materials
used for that purpose, and the person doing the work or furnishing
the materials may bring suit in his or her own name on the
bond against any party thereto, notwithstanding the fact that
no notice of intention under § 34-28-4 has been mailed
or filed, and, further, notwithstanding the fact that he or
she is not a party to the bond or to the contract between
the owner or lessee or tenant and other person, and, further,
notwithstanding the fact that he or she did not know of or
rely on the bond or give any notice to the surety on the bond,
and further, notwithstanding the fact that he or she did work
or furnished materials for use on any subcontract, mediate
or immediate, to such contract between the owner or lessee
or tenant and the other person.
34-28-31
Application to Governmental Agencies
No lien under § 34-28-1, 34-28-2 or 34-28-3 shall attach
to any building, canal, turnpike, railroad, or other improvement,
if the improvement is being constructed, erected, altered,
or repaired by or for the state, or any city or town, or any
subdivision or agency thereof, or to any land upon which the
improvement exists, if the land is owned by the state or any
city or town, or any subdivision or agency thereof, but the
provisions of § 34-28-30 shall apply to buildings, canals,
turnpikes, railroads, or other improvements being so constructed,
erected, altered, or repaired.
34-28-32 Contractor Excused From Completing
Work Upon Filing of Petition
Whenever any such building, canal, turnpike, railroad, or
other improvement shall be subject to sale under this chapter,
from and after the filing of any petition under §§
34-28-10 and 34-28-13, any contractor who shall not have fully
completed his or her contract in relation to the erection,
construction, alteration, or reparation thereof, shall thereafter
be excused from completing the contract, unless unreasonable
conduct by the contractor has contributed materially to the
facts giving rise to the filing of the petition (in which
case the person contracting with the contractor may at his
or her option excuse the contractor), but the excuse from
completing the contract shall terminate if and when the building,
canal, turnpike, railroad, or other improvement and the land
on which the improvement exists, shall be released and discharged
under the provisions of § 34-28-17, unless unreasonable
conduct by the owner or lessee or tenant has contributed materially
to the facts giving rise to the filing of the petition.
34-28-32.2
Construction
This
chapter is intended to afford a liberal remedy to all who
have contributed labor, material, or equipment towards adding
to the value of property to which the lien attaches and should
be construed accordingly.
34-28-33
Remedy of Chapter Not Exclusive
Except
as otherwise specified, nothing in this chapter shall be construed
to limit the right of any person, whether he or she have a
valid lien hereunder or not, to remedies otherwise available
to him or her under law; and the rights, if any, of any person
who has filed his or her account and demand or claim under
§ 34-28-16 for any deficiency, or the rights, if any,
of any person who has failed to file his or her account and
demand or claim thereunder, against any other person (rather
than against the property which is the subject matter of any
petition under this chapter) shall not be impaired by the
provisions of this chapter.
34-28-34
Definitions
(a)
“Construction, erection, alteration or reparation”
and “constructed, erected, altered or repaired,”
as used in this chapter, means excavation and demolition preparatory
to actual construction, erection, alteration, or reparation,
except where used in the phrase “actual and visible
commencement, by excavation or otherwise, of such construction,
erection, alteration or reparation,” in §§
34-28-7 and 34-28-10, which phrase shall be construed to include
the excavation or otherwise, but not demolition.
(b)
“Mortgage” as used in this chapter means construction
mortgages, so called, which are given to secure the payment
of a sum certain which is to be advanced at stated times or
intervals.
(c)
“Person” as used in this chapter means corporations,
partnerships, or other organizations or entities, except that
the words “individual person” means only a natural
person.
34-28-35
Short Title
This
chapter may be cited as the “Rhode Island Mechanics’
Lien Law.”
34-28-36
Severability
If
any part or parts of this chapter shall be held to be unconstitutional,
that unconstitutionality shall not affect the validity of
the remaining parts of this chapter. The general assembly
hereby declares that it would have enacted the remaining parts
of this chapter if it had known that the part or parts thereof
would be declared unconstitutional.
34-28-37
Form of Real Estate Description
Whenever
any description of real estate is required under the provisions
of this chapter, it shall be deemed sufficient to describe
the real estate by metes and bounds description and street
address, or by recitation of the taxing authority’s
assessor’s plat and lot designation and street address,
or by recitation of the book and page of mortgage and street
address
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