§507-43 - Filing notice, contents. - Hawaii Statutes

     §507-43  Filing notice, contents.  (a)  Requirements.  Any person claiming a lien shall apply therefor to the circuit court of the circuit where the property is situated.  Such "Application For A Lien" shall be accompanied by a written "Notice Of Lien" setting forth the alleged facts by virtue of which the person claims a lien.  A copy of the Application and Notice shall be served in the manner prescribed by law for service of summons upon the owner of the property and any person with an interest therein and upon the party or parties who contracted for the improvements if other than the owner of the property or any person with an interest therein.  If any person entitled to notice cannot be served as herein provided, notice may be given the person by posting the same on the improvement.  The Application shall set forth the amount of the claim, the labor or material furnished, a description of the property sufficient to identify the same, and any other matter necessary to a clear understanding of the claim.  If the claim has been assigned, the name of the assignor shall be stated.  The Application shall specify the names of the parties who contracted for the improvement, the name of the general contractor and the names of the owners of the property and any person with an interest therein.  The Application may (but need not) specify the names of the mortgagees or other encumbrancers of the property, if any, and the name of the surety of the general contractor, if any.

     The Application and Notice shall be returnable not less than three nor more than ten days after service.  On the return day, a hearing shall be held by the court to determine whether probable cause exists to permit the lien to attach to the property.  Any person to whom notice is required to be given shall be permitted to offer testimony and documentary evidence on the issue of whether probable cause exists to permit the lien to attach.  If the person who contracted for the improvement from which the requested lien arises claims a set-off against the lienor or if any person to whom notice is required to be given otherwise disputes the amount of the requested lien, the court shall hear and receive all admissible evidence offered and shall only permit the attachment of a lien in the net amount which the court determines is the reasonable probable outcome of any such dispute.  The return day hearing may be continued at the order of the court so that the entire controversy need not be determined on the originally scheduled return day.  The lien shall not attach to the property until the court finds probable cause exists and so orders.  No such order shall be entered before the Application and Notice have been served on the party contracting for the improvement, the general contractor and the owner of the property, and they were given an opportunity to appear at the hearing.

     (b)  Time for filing. The Application and Notice shall be filed not later than forty-five days after the date of completion of the improvement against which it is filed.  Where title to the property involved, or any portion thereof, is registered in the land court and the lien is not claimed solely against the lessees' interest in one or more leasehold time share interests as described in section 501-20, it shall be incumbent upon the lienor to file a certified copy of the Order Directing Lien To Attach in the office of the assistant registrar of the land court within seven days after the entry thereof in order to preserve the lienor's rights against subsequent encumbrancers and purchasers of the property.

     (c)  Joint owner.  If the fee title to the land involved is held in joint or common ownership or as an estate by the entirety, service upon one of the owners of the Application and Notice in accordance with this section shall be deemed service upon all of the owners.  Likewise, if the parties who contracted for the improvement, if other than the owner of fee title to the property involved, hold their interest in the premises in joint or common ownership, or as an estate by the entirety, service upon one of the parties of the Application and Notice in accordance with this section shall be deemed service upon all of the parties.

     (d)  Owner acting through attorney-in-fact.  In cases where materials have been furnished or labor was performed at the request, or upon the order, of a person acting under a duly executed and acknowledged power of attorney from the owner and (1) the power of attorney has not been revoked, or (2) the power of attorney has been revoked subsequent to the furnishing of materials and labor upon request or order and the owner cannot be found within the State, service of the Application and Notice upon the person acting under the power of attorney shall be deemed service upon the owner.

     (e)  Duration of lien.  The lien shall expire three months after the entry of the Order Directing Lien to Attach unless proceedings are commenced within that time to collect the amount due thereon by enforcing the same.

     (f)  Date of completion, notice of.  The term "date of completion" as used in this section means the time when the owner or the general contractor for the improvement completes the publication of a notice that the improvement has been completed or has been abandoned and an affidavit of the publication, together with a copy of the notice has been filed in the office of the clerk of the circuit court where the property involved is situated; provided that notice of completion shall not be effective for any purpose unless prior to the notice there has been substantial completion of the improvement or the improvement has been actually abandoned; and provided further that the notice shall not be published by the contractor until after the contractor has first made written demand upon the owner to publish the notice and the owner has failed to publish the notice within five days from the date of the demand.  The publication of the notice by the contractor or the owner shall not be construed as an admission by either that the improvement has been satisfactorily completed.  The notice required herein shall be published twice, seven days apart, in a newspaper of general circulation, printed and published in the county in which the property involved is situated, and the publishing newspaper shall promptly file the affidavit of publication above mentioned in the office of the clerk.

     (g)  Failure to file or publish notice.  If a valid notice of completion is not published and filed within one year after the actual completion or abandonment of the improvement the "date of completion" shall be deemed to be one year after actual completion or abandonment. [L 1888, c 21, §2; am L 1909, c 97, §1; RL 1925, §2892; RL 1935, §4366; am L 1935, c 150, §1; am L 1939, c 34, §1; am L 1941, c 282, §1; RL 1945, §8770; am L 1949, c 241, §3; RL 1955, §193-42; HRS §507-43; am L 1972, c 106, §1(g), (h); am L 1974, c 113, §3; am L 1975, c 181, §§1 to 5; gen ch 1985; am L 1998, c 219, §10]

 

Rules of Court

 

  Proof of publication, see RCC rule 11.

  Recordation, see RLC rule 62(b).

  Service of summons, see HRCP rule 4.

 

Case Notes

 

  When lien attaches:  Lien does not exist until notice thereof is filed.  9 H. 23.  Lien does not exist until notice is filed.  12 H. 356.  A copy of notice served upon the owner.  24 H. 74, 78; 25 H. 214, 216; 32 H. 913, 915.  Lien does not relate back to date materials furnished.  9 H. 23, 25; 24 H. 74.

  Notice of lien contents:  Should show the class or kind or nature of the materials.  10 H. 151.  For sufficiency of description of materials, see 24 H. 181.  Must describe the property upon which the lien is claimed.  20 H. 180.  Land must be so described that prospective purchasers and creditors may be enabled to identify it.  21 H. 585.  Insufficient to describe structures only.  20 H. 180.  Description held insufficient.  21 H. 585.  Defects in notice cannot be cured by amendment after expiration of period named in the statute.  21 H. 585, 588.

  Building deemed completed for purpose of filing notice of lien, when.  12 H. 358; 21 H. 119, 736.  Abandonment by contractor does not prevent materialmen from filing lien within statutory period after completion of building.  12 H. 358.

  Proceedings have commenced when declaration filed and process issued with intent that service be made promptly.  14 H. 448; 52 H. 298, 475 P.2d 362.

  Conveyance by owner to wife for purpose of defeating materialman is void, as against lien, proper notice of which is filed.  23 H. 21.

  Failure to file copy of notice in time cured by stipulation, waiver.  38 H. 372, 431.

  Legislative policy as to time for filing liens, immaterial in interpreting provision in contractor's bond as to time for suit against surety when bond did not refer to lien statute.  49 H. 578, 599, 426 P.2d 298.

  Provision that publication of notice is not an admission of satisfactory completion, referred to.  49 H. 578, 596, 426 P.2d 298.

  Filing "not later than forty-five days after the date of completion" construed.  50 H. 540, 445 P.2d 109.

  Courts' determinations in an application for mechanic's lien have no effect upon the determination of any issue in action to enforce the lien.  58 H. 104, 565 P.2d 980.

  Order granting application for mechanic's lien and directing attachment of such lien is interlocutory.  58 H. 104, 565 P.2d 980.

  Notice provision (prior to 1974 amendment) was held directory rather than mandatory and failure to serve certain parties did not invalidate lien as to those served.  59 H. 612, 585 P.2d 1265.

  Return date for application and notice is mandatory.  68 H. 228, 708 P.2d 140.

  Person claiming set-off against lienor has burden of establishing set-off of a given amount.  2 H. App. 90, 626 P.2d 204.

  Intermediate court of appeals is not appropriate body to determine whether particular newspaper is one of general circulation.  3 H. App. 43, 641 P.2d 328.

  Cited:  31 H. 446, 451.

 

Hawaii Legal Reporter Citations

 

  Burden of proof to establish lien.  78-2 HLR 78-993.

  Assignment of lien.  79 HLR 79-0901.