In analogous cases, compliance by a claimant with the statutorily required notice has been held to be a condition precedent to the existence of a cause of action. See, e.g., Webber Lumber & Supply Co. v. Erickson, 216 Mass. 81, 82–83, 102 N.E. 940 (1913) (mechanic's lien could not attach unless claimant gave written notice to owner of property to be affected by lien “of an intention to claim a lien ”; notice in question “was fatally defective ” and, thus, lien never attached [emphasis added] ); Warren Bros. Co. v. Peerless Ins. Co., 8 Mass.App.Ct. 719, 723, 397 N.E.2d 329 (1979) (“function of the notice [in mechanic's lien situation] is to establish who are potential claimants[,]” which is “a subject in which the principal [the general contractor] and the surety [the bonding company] have a lively interest”). The same is true here.
1. To enforce a lien under G.L.c. 254, "[s]trict compliance with the statutory terms is necessary." See Baltimore Contractors, Inc. v. Dupree, 352 Mass. 83, 85 (1967, where the failure to specify a definite completion date of the contract was held not to comply with c. 254, § 2); Warren Bros. v. Peerless Ins. Co., 8 Mass. App. Ct. 719, 720-723 (1979, failure to file notice of contract with the owner bars relief under c. 254 to the supplier). See also Valentine Lumber Supply Co. v. Thibeault, 336 Mass. 411, 413 (1957), and cases cited.
Additionally, because a perfected lien is an encumbrance on the owner's property, the statute provides for prevention of future liens and dissolution of existing liens by the giving of a bond, see G.L. c. 254, § 12, as amended through St.2002, c. 400, § 1 (§ 12), and § 14, which benefits "an owner of land (or anyone possessing an interest in that land) by furnishing means to keep his title free from liens" and preventing the sale of the land to satisfy a lien.Warren Bros. Co. v. Peerless Ins. Co., 8 Mass.App.Ct. 719, 722 (1979), citing Rockwell v. Kelly, 190 Mass. 439, 440 (1906). Thus, the mechanic's lien statute both "governs the creation, perfection, and dissolution of a mechanic's lien," National Lumber Co. v. United Cas. & Sur. Ins. Co., 440 Mass. 723, 726 (2004) (National Lumber II), citing Ng Bros. Constr. v. Cranney, 436 Mass. 638, 644 (2002), and sets forth the procedures for execution and enforcement of a lien dissolution bond.
Additionally, because a perfected lien is an encumbrance on the owner's property, the statute provides for prevention of future liens and dissolution of existing liens by the giving of a bond, see G.L. c. 254, § 12, as amended through St. 2002, c. 400, § 1 (§ 12), and § 14, which benefits “an owner of land (or anyone possessing an interest in that land) by furnishing means to keep his title free from liens” and preventing the sale of the land to satisfy a lien. Warren Bros. Co. v.Peerless Ins. Co., 8 Mass.App.Ct. 719, 722, 397 N.E.2d 329 (1979), citing Rockwell v. Kelly, 190 Mass. 439, 440, 77 N.E. 490 (1906). Thus, the mechanic's lien statute both “governs the creation, perfection, and dissolution of a mechanic's lien,” National Lumber Co. v. United Cas. & Sur. Ins. Co., 440 Mass. 723, 726, 802 N.E.2d 82 (2004)( National Lumber II ), citing Ng Bros. Constr. v. Cranney, 436 Mass. 638, 644, 766 N.E.2d 864 (2002), and sets forth the procedures for execution and enforcement of a lien dissolution bond.
The subcontractor must also provide a copy of the notice of contract to the owner of the land. Warren Bros. v. Peerless Ins. Co., 8 Mass. App. Ct. 719, 723 (1979). The notice of contract itself creates the mechanic's lien.
See Webber Lumber & Supply Co. v. Erickson, 216 Mass. 81, 82 (1913). See also Warren Bros. Co. v. Peerless Ins. Co., 8 Mass. App. Ct. 719, 723 (1979) (owner of affected property must be given copy of notice of contract). In light of our conclusion we do not address the defendants' contention that the contract under which National seeks to assert a claim does not meet the conditions for the imposition of a lien under G. L. c. 254, § 4.
See Central Supply Co. v. United States Fid. Guar. Co., 273 Mass. 139 (1930). See also Superior Glass Co. v. First Bristol County Natl. Bank, 380 Mass. 829, 831-832 (1980); G.L.c. 149, § 29A. Compare Johnson-Foster Co. v. D'Amore Constr. Co., 314 Mass. 416 (1943) (performance bond); Warren Bros. Co. v. Peerless Ins. Co., 8 Mass. App. Ct. 719 (1979) (statutory lien bond; G.L.c. 254, § 12). See generally 13 Couch, Insurance §§ 47:174, 47:179, 47:192 through 47:197 (2d ed. 1965).
Ultimately, "the purpose of [G.L.c. 254, § 12], as previously in effect and as revised by St. 1972, c. 774, Section 9, was to benefit an owner of land (or anyone possessing an interest in that land) by furnishing means to keep his title free from liens." Warren Bros. Co. v. Peerless Ins. Co., 8 Mass.App.Ct. 719, 722 (1979). "Statutory language itself is the principal source of insight into the legislative purpose."
This sort of information is of crucial importance to the owner and other interested third parties because it enables such persons to protect their interests by either withholding money from the builder or making provision for retainage of funds. See Warren Brothers Co. v.Peerless Ins. Co., 8 Mass. App. Ct. 719, 723 (1979). The inquiry is twofold: First, a determination must be made whether the statutory requirement of a written contract is satisfied. Second, an analysis of the content of the notice of contract and any extension thereof must evince that at least minimal pertinent information has either been furnished the owner or might be gleaned from available information on file in the Registry of Deeds.
The copy of the Waiver and the Altered Waiver make no reference to any payment bond. See Warren Brothers Co. v. Peerless Insurance Co., 8 Mass. App. Ct. 719, 722 (1979) (differentiating between the protection available from "lien bonds," the form of which is prescribed by G.L.c. 254, § 12, and the provisions of c. 149, § 29, which "requires a payment bond in lieu of lien rights on construction of public works"). Both the Waiver and the Altered Waiver each provided, in material part, as follows: