Smith v. Magruder

WINTERSHEIMER, Judge.

This appeal is from a judgment entered July 21, 1977, in which two mechanic’s lien claims were adjudicated against the appellant for labor and materials provided in the reconstruction of her home in 1975. On April 3,1974, a tornado damaged the Louisville home of the appellant, and from April 3,1974, until September 1975, her home was uninhabitable and she rented an apartment during the reconstruction. The general *431contractor was the Ward Construction Company, who had been previously paid by the appellant, and who had bankrupted the claims of two of the appellees in this case.

Under a contract with Ward, appellee Magruder performed labor and furnished materials between August 1, 1975 and August 12, 1975, and mailed a letter/notice of lien claim for $2,031.06 on November 25, 1975, within 120 days of the date of the last item of material and labor furnished. Ap-pellee Jackson furnished labor and material from February 18,1975, to August 26, 1975, and on October 1, 1975, mailed a letter/notice of lien claim for $2,775.00 to the appellant. Both of these subcontractors sought to enforce their mechanic’s liens under KRS 376.010(3), having complied with the provisions thereof, but neither lienor complied with the provisions of KRS 376.010(4) and the specific requirements of furnishing a ten day written notice to the “owner-occupant of the home” as required by Subsection 4.

The only question presented here is whether the provisions of KRS 376.010(3) or KRS 376.010(4) apply in this situation, and whether the appellant was an owner-occupant of an owner-occupied dwelling within the meaning of KRS 376.010(4).

A clear and simple meaning of the word occupant is one who occupies or has the actual use or possession of a thing, as distinguished from constructive possession thereof. Here, the appellant seeks to have the courts interpret KRS 376.010(4) to apply to this situation. Appellant argues that the statute was intended for the protection of small home owners. However, this Court cannot reasonably interpret the language of the 1976 statute as meaning anything other than it clearly states, that is “owner-occupant.” The subsection uses the term “owner-occupied single or double family dwelling”. This language is abundantly clear. It applies only to such a classification of persons. If there was a legislative intent to cause the subsection to be applied to situations such as this case, the Legislature could have simply omitted the word “occupant” and the words “owner-occupied” from Subsection 4. If that had been done, compliance with Subsection 4 would have been required wherever work or material was furnished on a single or double family dwelling. The fact that the words “owner-occupant” are used, indicates that actual physical occupancy at the time of the work is necessary to invoke the protection of this statute. Generally, statutes must be narrowly construed when the clear meaning of the language is apparent. The Supreme Court of Kentucky, in Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933 (1976), indicates that the function of the court is limited to a reasonable interpretation of the legislative language, and does not extend to a psychoanalysis of the legislative intent.

It should be noted that the appellees’ citation of language contained in a fire insurance policy case does not necessarily apply to this situation. The factual differences between the degree of evidence needed to support occupancy in a fire insurance contract and a mechanic’s lien situation are too great to present a truly analogous situation.

It has been the policy of Kentucky law to construe mechanic’s lien laws liberally in favor of the lienors. Hodges v. Quire, Ky., 174 S.W.2d 9 (1943). Fortunately, the Legislature has recognized the possibility of an abuse which would be to the detriment of some small home owners, and it has identified an exception to the mechanic’s lien laws for those premises that are owner-occupied. In a general sense, it is a matter of concern to this Court as to what balance should be maintained between the small house owners and small vendors, both of whom are defrauded by a defaulting general contractor. It is tragic that a small home owner may be required to pay twice for the same service or materials, but on the other hand, the small vendor has no real ability to sustain a loss once his material and labor are expended. The real villain escapes by the route of default or bankruptcy. In this situation, a notice was given to the home owner that a lien claim would be asserted. It was not the notice given to an owner-occupant, because it appears that in *432good faith the vendors did not believe the owner was an occupant. Therefore, it appears that no essential injustice resulted from the form of notice given.

It is the opinion of this Court that an owner of an uninhabitable parcel of real property is not considered to be an owner-occupant of a single or double family dwelling, pursuant to KRS 376.010(4), and accordingly, it is not mandatory on a subcontractor who has not contracted directly with the owner, but who has furnished labor and materials during the period of unin-habitableness, to notify the owner of the said real property, within ten days of furnishing the first material or labor, of his intention to claim a lien against said real estate.

The judgment of the trial court is affirmed.

HOWERTON, J., concurs.

LESTER, J., concurs by separate opinion.