Bank of Bernice v. D'Arbonne Lake Lodge, Inc.

541 So. 2d 354, 1989 La. App. LEXIS 556, 1989 WL 30771
CourtLouisiana Court of Appeal
DecidedMarch 29, 1989
DocketNo. 20339-CA
StatusPublished
Cited by2 cases

This text of 541 So. 2d 354 (Bank of Bernice v. D'Arbonne Lake Lodge, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of Bernice v. D'Arbonne Lake Lodge, Inc., 541 So. 2d 354, 1989 La. App. LEXIS 556, 1989 WL 30771 (La. Ct. App. 1989).

Opinion

MARVIN, Judge.

In this ranking contest between the mortgagee bank and the intervening general contractor that arose out of a foreclosure by the bank, the issue is whether the purported “description of immovable property” as “D’Arbonne Lake Lodge, Highway. 33, Farmerville, Louisiana,” in the written notice of the building contract earlier filed by the general contractor is legally sufficient under LRS 9:4831 and 4811 A(2) to perfect the contractor’s later-filed lien for labor and materials and thereby prime the mortgage to the bank.

The trial court held that the description in the notice of the contract was not statutorily sufficient and that the contractor’s lien was primed by the bank’s mortgage.

Agreeing, we affirm.

FACTS

On December 12, 1983, before the work began, the general contractor recorded notice of the $825,915 building contract with the owner in the Union Parish mortgage records.

About a month later, on January 10, 1984, the bank recorded the mortgage that secured a $1,200,000 loan to finance the construction. The property was described in the notice of contract only as “D’Ar-bonne Lake Lodge, Highway 33, Farmer-ville, Louisiana.” In the mortgage, the property was described as specific acreage in a section, township, and range in a conventional manner.

On January 7, 1985, the certificate of substantial completion, signed by the owner, the general contractor and the architect, was recorded.

More than a year later, on January 27, 1986, the contractor filed its affidavit claiming it was still owed $26,275 on the contract. The contract provided that the final payment was not due until it was approved by the architect.

On December 27, 1985, the architect approved the final payment. The contractor’s statement of claim was filed within 60 days of the architect’s approval of the payment, but more than a year after the certificate of substantial completion was recorded.

The litigants stipulated the above facts to the trial court. The bank contended the contractor had no privilege on the property, notwithstanding its recordation of the notice of contract before the bank’s mortgage was recorded, because the property description in the notice of contract, giving only the street or mailing address, is insufficient under § 4831 C, and because the statement of claim was not filed by the contractor within 60 days after recordation of the certificate of substantial completion.

The contractor contended the notice of contract taken as a whole, with the property address and with the names and addresses of the owner, the contractor and the architect, sufficiently identified the property affected by the contract. The contractor also argued that the bank was not a “third person” who was entitled to rely solely on the public records, and was not prejudiced by any shortcomings of the property description, because the bank “knew” the proceeds of its loan were intended to finance the construction on the property that secured the mortgage to the bank.

The contractor argued that because the final payment was not due under the terms of the contract until the architect formally approved the payment in December 1985, the 60-day period for claiming a privilege to secure that payment should begin on the payment approval date and not on the date when the certificate of substantial completion had been recorded in January 1985.

[356]*356The trial court did not reach the timeliness issue because it found the property description in the notice of contract did not “reasonably identify” the property under § 4811 A(2) or comply with the more specific requirements of § 4831 C. The court did not expressly address the arguments about prejudice and reliance on the public records.

GENERAL CONTRACTOR’S PRIVILEGE

A general contractor who performs work on immovable property has a privilege on the property to secure the owner’s obligation to pay for the work. LRS 9:4801(1). If the contract price exceeds $25,000, the general contractor must record notice of the contract before the work begins to be able to later claim the statutory privilege. § 4811 D.

The notice of contract must “reasonably identify the immovable upon which the work is to be performed” and must contain other information, including the names and mailing addresses of the contracting parties.1 § 4811 A.

Section 4831 C imposes more specific requirements:

Each filing made with the recorder of mortgages pursuant to this Part which contains a reference to immovable property shall contain a description of the property sufficient to clearly and permanently identify the property. A description which includes the lot and/or square and/or subdivision or township and range shall meet the requirement of this Subsection. Naming the street or mailing address without more shall not be sufficient to meet the requirements of this Subsection.

If the general contractor is not paid for work performed under the contract, he must file a statement of his claim within 60 days after “notice of termination of the work” is filed in order to preserve his privilege. § 4822 B, G.2 The notice of termination certifies, among other things, that the work has been substantially completed. § 4822 E.

If the contractor meets each statutory requirement, his privilege is effective against third persons as of the date the notice of contract was recorded. § 4820 A(l). If the notice of contract is properly recorded before a mortgage is recorded, the general contractor’s privilege primes the mortgage. See § 4821(3), (5), (6).3

PROPERTY DESCRIPTION

The contractor’s assertion that the property could be “reasonably identified” under § 4811 A(2) or “clearly and permanently identified” under § 4831 C by something other than the complete legal description that was used in the bank’s mortgage is an equitable argument. The statutes, however, must be followed.

The notice of contract contains no section, township and range numbers or other information to identify, without resort to knowledge or inquiry outside the public records, on what specific property on Highway 33 near Farmerville the D’Arbonne Lake Lodge was being constructed.

We cannot agree with the contractor’s contention that any deficiency in the property description is cured because the notice of the building contract that the [357]*357bank intended to finance contained the names and addresses of the owner, the contractor and the architect.

The statute clearly requires that the notice of contract must contain both a reasonable identification of the property and the names and addresses of the contracting parties. § 4811 A(2), (3). These two requirements are conjunctively stated and the conclusion to be drawn is obvious. The legislature did not consider the identification of the contracting parties would be equivalent to a reasonable identification of the property or vice versa.

We agree with the trial court that the notice of the contract identifies the property by “the street or mailing address without more” and that this type of property description is expressly deemed insufficient under § 4831 C.

The contractor concedes that the use of the street or mailing address in a notice of termination was found insufficient to identify the property under § 4831 C in Rowley Co.

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Cite This Page — Counsel Stack

Bluebook (online)
541 So. 2d 354, 1989 La. App. LEXIS 556, 1989 WL 30771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-bernice-v-darbonne-lake-lodge-inc-lactapp-1989.