2006 Louisiana Laws - RS 9:4822 — Preservation of claims and privileges

§4822.  Preservation of claims and privileges

A.  If a notice of contract is properly and timely filed in the manner provided by R.S. 9:4811, the persons to whom a claim or privilege is granted by R.S. 9:4802 shall within thirty days after the filing of a notice of termination of the work:

(1)  File a statement of their claims or privilege.

(2)  Deliver to the owner a copy of the statement of claim or privilege.  If the address of the owner is not given in the notice of contract, the claimant is not required to deliver a copy of his statement to the owner.

B.  A general contractor to whom a privilege is granted by R.S. 9:4801 of this Part, and whose privilege has been preserved in the manner provided by R.S. 9:4811, shall file a statement of his privilege within sixty days after the filing of the notice of termination or substantial completion of the work.

C.  Those persons granted a claim and privilege by R.S. 9:4802 for work arising out of a general contract, notice of which is not filed, and other persons granted a privilege under R.S. 9:4801 or a claim and privilege under R.S. 9:4802 shall file a statement of their respective claims and privileges within sixty days after:

(1)  The filing of a notice of termination of the work; or

(2)  The substantial completion or abandonment of the work, if a notice of termination is not filed.

D.(1)  Notwithstanding the other provisions of this Part, the time for filing a statement of claim or privilege to preserve the privilege granted by R.S. 9:4801(5) expires sixty days after the latter of:

(a)  The filing of a notice for termination of the work that the services giving rise to the privilege were rendered; or,

(b)  The substantial completion or abandonment of the work if a notice of termination is not filed.  This privilege shall have no effect as to third persons acquiring rights in, to, or on the immovable before the statement of claim or privilege is filed.

(2)  Notwithstanding the provisions of this Part, the seller of movables sold for use or consumption in work on an immovable for residential purposes, if a notice of contract is not filed, shall file a statement of claim or privilege within seventy days after:

(a)  The filing of a notice of termination of the work; or

(b)  The substantial completion or abandonment of the work, if a notice of termination is not filed.

E.  A notice of termination of the work:

(1)  Shall reasonably identify the immovable upon which the work was performed and the work to which it relates.  If the work is evidenced by notice of a contract, reference to the notice of contract as filed or recorded, together with the names of the parties to the contract, shall be deemed adequate identification of the immovable and work.

(2)  Shall be signed by the owner or his representative.

(3)  Shall certify that:

(a)  The work has been substantially completed; or

(b)  The work has been abandoned by the owner; or

(c)  A contractor is in default under the terms of the contract.

(4)  Shall be conclusive of the matters certified if it is made in good faith by the owner or his representative.

F.  A notice of termination or substantial completion may be filed from time to time with respect to a specified portion or area of work.  In that case, the time for preserving privileges or claims as specified in Subsection A or C of this Section shall commence with the filing of the notice of termination or substantial completion as to amounts owed and arising from the work done on that portion or area of the work described in the notice of termination.  This notice shall identify the portion or area of the land and certify that the work performed on that portion of the land is substantially completed or has been abandoned.  Once the period for preserving claims and privileges has expired and no liens have been timely filed, the portion or area of work described in the notice of termination shall be free of the claims and privileges of those doing work on the area described in the notice of termination, as well as those doing work elsewhere on the immovable being improved.

G.  A statement of a claim or privilege:

(1)  Shall be in writing.

(2)  Shall be signed by the person asserting the same or his representative.

(3)  Shall reasonably identify the immovable with respect to which the work was performed or movables or services were supplied or rendered and the owner thereof.

(4)  Shall set forth the amount and nature of the obligation giving rise to the claim or privilege and reasonably itemize the elements comprising it including the person for whom or to whom the contract was performed, material supplied, or services rendered.

H.  A work is substantially completed when:

(1)  The last work is performed on, or materials are delivered to the site of the immovable or to that portion or area with respect to which a notice of partial termination is filed; or

(2)  The owner accepts the improvement, possesses or occupies the immovable, or that portion or area of the immovable with respect to which a notice of partial termination is filed, although minor or inconsequential matters remain to be finished or minor defects or errors in the work are to be remedied.

I.  A work is abandoned by the owner if he terminates the work and notifies persons engaged in its performance that he no longer desires to continue it or he otherwise objectively and in good faith manifests the abandonment or discontinuance of the project.

J.  Before any person having a direct contractual relationship with a subcontractor, but no contractual relationship with the contractor, shall have a right of action against the contractor or surety on the bond furnished by the contractor, he must record his claim as provided in this Section and give written notice to the contractor within thirty days from the recordation of notice of termination of the work, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor or service was done or performed.  Such notice shall be served by mailing the same by registered or certified mail, postage prepaid, in an envelope addressed to the contractor at any place he maintains an office in the state of Louisiana.

K.(1)  Any person to whom a privilege is granted by R.S. 9:4802 may give notice to the owner of an obligation to that person arising out of the performance of work under the contract.  The notice shall be given prior to:

(a)  The filing of a notice of termination of the work; or

(b)  The substantial completion or abandonment of the work, if a notice of termination is not filed.

(2)  The method of notice shall be under R.S. 9:4842(A).  The notice shall set forth the nature of the work or services performed by the person to whom the obligation is owed and shall include his mailing address.

L.(1)  When notice under Subsection K has been given by a person to the owner, the owner shall notify that person as required by R.S. 9:4842(A) within three days of:

(a)  Filing a notice of termination of the work; or

(b)  The substantial completion or abandonment of the work, if a notice of termination is not filed.

(2)  The owner who fails to give notice to the person under the provisions of this Subsection within ten days of commencement of the period for preservation of claims and privileges shall be liable for all costs and attorney's fees for the establishment and enforcement of the claim or privilege.

M.(1)  The contractor may elect to furnish at the contractor's cost and without off-set of the cost against the retainage amount a retainage bond equal to and in lieu of the amount of the retainage required by the contract whenever a contract between an owner and a contractor for the construction, alteration, or repair of any work requires the withholding of sums for retainage until after the recordation of formal acceptance of such work, or notice of default by the contractor or subcontractor, or substantial completion, or final payment exclusive of nonconforming work.

(2)  If the contractor elects to furnish a retainage bond, it shall be in a form designated by the contracting agency from a surety, within their underwriting limits, with at least an A- rating in the latest printing of the A.M. Best's Key Rating Guide.

Acts 1988, No. 685, §1, eff. Jan. 1, 1989; Acts 1991, No. 1024, §1, eff. Jan. 1, 1992; Acts 2001, No. 1105, §1, eff. June 28, 2001; Acts 2003, No. 729, §1.

NOTE:  See Acts 2001, No. 1105, §2.