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By Jonathan P. Sauer, Esq.


On August 9, 1996, Governor Weld signed into law Chapter 364 of the Acts of 1996, making major revisions to Chapter 254 of the General Laws, which is the mechanics’ lien statute. This legislation effects the most major changes to the lien law accomplished since 1915. and will 0take effect on or after February 7, 1997. These changes include, without limitation, a broadening of coverage (as to what kind of projects are covered), a broadening of who may file a lien and fairly extensive improvements as to the timing of the filing of the lien, including a substantial reduction in the importance of the concept of “completion dates”. One keeps in mind that revisions to the mechanics’ lien law are not easily made because of a number of factors including the fact that this is a dry and technical subject (boring to the legislators) and that concurrence of (or, at least, not actual opposition by) the conveyancers and banks are required for making changes to the statute. Therefore, the existing statute with the 1996 amendments are likely to be the law of the Commonwealth for quite some period of time. Thus, it is now time to examine this new law.

Because of the wording of the statute, however, the existing lien law in effect prior to this recent change will control some projects for conceivably a period of the next several years. In other words, and as will be explained below, some projects will be covered by the new lien law immediately and some will not.

In order to understand the changes in the lien law, it is necessary to recite the basic tenets of the existing law. Thereafter, we will extensively comment on the changes brought about by the new lien law and will suggest forms for complying with the same.


Under the existing lien law, three classes of worker/suppliers are protected, which include individual laborers performing work on private property (in accordance with Section 1), general contractors (in accordance with Section 2) and subcontractors (in accordance with Section 4). Massachusetts does not allow mechanics’ liens on public property.

The rules applicable to mechanics’ liens are myriad. For example, a general contractor cannot have enforceable lien rights unless his contract contains a specific completion date. A subcontractor, on the other hand, does not need a completion date in its subcontract to have enforceable lien rights. Both generals and subs, however, need to have a written contract. And, all parties - including material suppliers to either the general contractor or subcontractor - need to have a written contract that specifically references the job in question. For a material supplier to have legally sufficient lien rights under the existing law, the purchase order (s)/contract (s) has to be very specific that it intends to cover all deliveries made to a particular identified project. Otherwise, the mechanics’ lien rights will attach themselves individually to the respective purchase order (s), which could well be a procedural nightmare for lien purposes.

The key concept in existing lien law with regard to mechanics’ liens from subcontractors and general contractors is to tie the filing of the mechanics lien into the completion date of the contract. Generally speaking, all mechanics’ liens need to be filed by the completion date in the contract. Once that completion date has expired, lien rights themselves will have expired. Subcontractors without completion dates in their subcontracts can sometimes file liens beyond the time of the performance of their actual work provided the liens are filed prior to the general contractor’s completion date andthat the owner does not contest the estimated completion date under the procedures outlined by the statute.

Of course, the major difficulty with this is that by the time the subcontractor or general contractor has determined that there is a serious payment problem, in all likelihood the completion date has already gone by or, if the completion date has not gone by, the subcontractor or general contractor is afraid to file a lien because as anyone who has participated in this process knows, hell hath no fury like that of a liened owner (and its lender)! Under the existing statutory scheme for filing a mechanics’ lien, upon the filing of the lien, the usual downward flow of money comes to a halt. This happens because a lender(s) prior recorded mortgage is not senior to any mechanics’ lien as to any disbursements which have not been made or guaranteed as of the date of the filing of the lien. (One must keep in mind that although there are three steps in perfecting a lien, the lien is effective and in place as of the date of the filing of the notice of contract.) Since the lender, therefore, loses its security interest as to further disbursements, the lender ceases making further disbursements. In my experience, lenders tend to view any encumbrance to title - including mechanics’ liens - as valid, even if the mechanics’ lien documents are invalid on their face. Moreover, even if the lender does not know about the lien or does not make a big deal about it the owner is likely to do so as a mechanics’ lien judgment gives a subcontractor or a general contractor the right to sell the piece of property in question. Our informal polling of several lawyers doing this kind of work has indicated that as to mechanics’ lien sales there are almost never any realization of monies by lien judgment holder inasmuch as those sales are subject to all prior security interests including mortgages, attachments and other mechanics’ liens. Thus, it is no secret that the real purpose of filing a mechanics’ lien is not primarily to achieve a security interest in the owner’s real estate but to either obtain present payment or the “bonding off” of the lien, which then essentially guarantees payment providing the claimant can both prove successful compliance with its applicable contract and with the provisions of Chapter 254, which is the lien law statute.

Under the existing law - which will govern projects up to February 7, 1997 and many projects after that date - there are essentially three steps in filing and perfecting a mechanics’ lien.

The first step is to file a notice of contract prior to the completion date as contained in the subcontract or general contract. The form is not particularly difficult with the exception of obtaining the legal description of the property in question, which can sometimes be a task of near gargantuan proportions, particularly when one is researching the title for a property such as the Solomon Pond Mall, which is contained both in two towns and in two counties! The notice of contract has to be filed at the Registry of Deeds having jurisdiction over the town where the property is located. By statute, a subcontractor has to provide “actual notice” to the owner, which means notice with proof of actual delivery, which is usually certified mail with a return receipt requested. There would be, however, no reason that I could think of where either a general contractor or a subcontractor would not provide actual notice to all parties having an interest in the real estate, including the owner and, in certain circumstances, anyone having a leasehold interest. For, the pressure the tenant can bring to bear on the owner can be a very effective weapon in accomplishing payment.

The second step in perfecting a mechanics’ lien is for the subcontractor/general contractor to file a sworn statement of claim in accordance with Section 8 of Chapter 254. Under the existing law, the notice of contract for either a subcontractor or general contractor need not state any financial information in the notice of contract, whether that information be the amount of the contract and change orders, the amount paid to date or the amount of any potential claim. In the sworn statement of claim, the subcontractor or general contractor has to state a “just and true account of the amount owed”, which needs to include all accepted credits. This document must be filed within 30 days after the date of the completion date as contained in the subcontract or general contract. If the subcontractor has used an estimated completion date in the filing of the notice of contract, then the sworn statement of claim would have to be filed within 30 days of that date.

The final step in this process is to file a complaint in the Superior Court within 60 days from the date of filing the sworn statement of claim. Note that while the filing of the notice of contract and the filing of the sworn statement of claim are keyed into the completion date, the third step requiring suit in the Superior Court is tied into the date of actual filing of the sworn statement of claim. That means, in simple English, that the complaint has to be filed within 60 days from the date the sworn statement is actually filed (received in the Registry of Deeds). A practice tip for the uninitiated: if at all possible, hand file your lien notices with the Registry of Deeds. The reason I say this is the different Registry of Deeds have different standards for the receipt and filing of documents. For example, some Registries will not accept for filing lien documents which do not reference the book and page number of any prior filed lien documents. Moreover, the registries are sticklers for such details as having the notary indicate the county where the notarization takes place and having all of the dates in the document agree one with another. If you cannot hand file, then try to file your lien documents as much as a month before they are actually due to allow for processing of the document and/or for any possible return. In my experience, if the documents are returned as not being acceptable for filing because of some technical defect, they are returned relatively quickly - within two weeks. Otherwise, the document is returned to whomever is indicated as the party sending the document within a period of four to six weeks after the document is sent to the Registry of Deeds.

After the filing of the Superior Court complaint an “attested-to” copy of the complaint has to be filed with the Registry of Deeds. This is simply a court-stamped copy of the complaint indicating the docket number and that the copy of the complaint is a true copy of the complaint on file with the Superior Court. After that point, the mechanic’s lien case becomes similar to other civil litigation and proceeds throughout the Superior Court.


There are numerous changes which have been brought about by this new statute.

A. Change in the meaning of the word ‘contract For one thing, the definition of the word ‘contract’ has been changed. Under the case law interpreting Section 2 of the pre-existing Chapter 254 (the provision pertaining to the notice of contract for the general contractor) a claimant must show the existence of a contract in writing as the foundation of an enforceable lien. If the statute is not followed in that regard, no lien can be established. Adams & Powers Co. v. Seder, 257 Mass. 453(1926). And, an ill-fated case applied to general contractors stated that the completion date in the notice of contract must be the date set forth in the written contract. Blount Bros. Corp. v. Lafayette Place Associates, 399 Mass. 632 (1987).

For subcontractors, the cases interpreting Section 4 (that section applicable to the subcontractor notice of contract) state that a lien could not be established on property where a supplier had not entered into a written contract with the subcontractor. Gettens Electric Supply Co. v. W.R.C. Properties, Inc., 21 Mass. App. 658 (1986). Thus, as stated in the Gettens case, 223 purchase orders and invoices given to an electrical subcontractor by a supplier were not a “written contract” which contemplated the entire and continuing arrangement in writing between the supplier and subcontractor.

As defined by Section 2A of Chapter 364 of the Acts of 1996, “written contract” now means: “any written contract enforceable under the laws of the commonwealth”. Although the meaning of any word is not clear - as legal things go - until an appellate court has visited (and revisited) the issue, it would appear that this definition of contract is broader and will allow more contracts to be considered as susceptible of supporting a lien.

B. Change as to what kind of projects are subject to a mechanic’s lien

Under the preexisting law, it appears that a mechanics’ lien could only be filed with regard to the construction of a building. The basis for this statement is both in the statute and in the cases interpreting the statute. For example, a notice of contract form for general contractors as contained within the statute (Section 2) states that the written contract relates to: “the erection, alteration, repair or removal of a building or structure upon land, or for furnishing material therefor. . . “. The notice of contract form for a subcontractor (Section 4) again states the written contract relates to “furnish or has furnished labor or material, or both labor and material, or perform labor in the erection, alteration, repair or removal of a building or structure.” .

In addition to the statutory language, there are a number of older cases which stated that the improvements have to become part of the realty. See, Kennedy v. Commonwealth, 182 Mass. 480(1903). In contradistinction, box enclosures for ashes and garbage in the rear of a house for whose construction lumber was used were not considered to be structures upon land within the meaning of this chapter. Curtis & Pope Lumber Co. v. Wolmer, 213 Mass. 456 (1913).

Under the new amendment to the statute, what is capable of being liened is defined as a contract relating to the “erection, alteration, repair or removal of a building, structure or other improvements to real property”. This is a broader definition and would seem to be something more expansive than merely a building. Again, the new statute will require litigation before this definition is more fully fleshed out. But one could imagine that a fence or swimming pool, for example, could be considered an improvement to real property but not something subject to a lien under the old statute if it does not attach to the building.

C. Change (broadening of) in the kinds of services which will support a mechanics’ lien

The existing law, whether applicable to subcontractors or general contractors makes integral as to what constitutes lienable services as furnishing labor and material for the “erection, alteration, repair or removal of a building or structure upon land” (Section 2 of Chapter 254). The new amendment broadens that coverage. For example, Section 2 of Chapter 364 contains the language of a general contractor having a contract with the owner “for the whole or part of the erection, alteration, repair or removal of a building, structure, or other improvement to real property, or for furnishing material or rental equipment, appliances, or tools therefor. . . to secure the payment of all labor including construction management and general contractor services and material or rental equipment, appliances, or tools which shall be furnished by virtue of said contract”. (emphasis added)

Section 5 of Chapter 364 - applicable to subcontractors - referencing as lienable items: “labor, including subcontract or construction management services, or who furnishes material or both labor and material or furnishes rental equipment, appliances or tools, under a written contract with the contractor or with the subcontractor of such subcontractor. . .” .

These amendments eliminate an argument typically made by owners that the lien applies only to labor and materials furnished for the actual building or structure. One would imagine that claims by equipment rental companies or for scaffolding, concrete forms and equipment such as Lull lifts would be more readily acceptable under this broader definition. Also, it may be that architects will have an increased chance of claiming for their actual on-site superintendence under the guise that such services may be considered to be “construction management and general contractor services”. There is a line of cases under the existing statute which says that an architect is not entitled to a lien for drawing plans and specifications. See, for example, Mitchell v. Packard, 168 Mass. 467 (1897). Other cases have suggested that an architect may have a lien for supervising the construction of the building. One would think that this broader definition may, indeed, increase the number or kinds of claims made by architects.

Also, recognizing construction management and general contractor services would seem to better fit into current general contract construction methodologies in which many general contractors supply little, if any labor to the actual construction of the project.

D. Change in the definition of what constitutes an “owner”

Under older case law, an owner actually had to enter into an agreement itself/himself to be chargeable with a mechanics’ lien. For example, an older case held that even where an owner of land knew that a building was being erected on his land, this was not sufficient to constitute consent on the part of the owner for the performance of that work under the mechanics’ lien law. Saunders v. Bennett, 160 Mass. 48 (1893). And, the Supreme Judicial Court has previously held that in the absence of owners’ authorization for construction of a building for use of a company to whom they had orally agreed to sell the land upon which the building was being erected, mere knowledge on the part of the owners that the building was under construction was not sufficient to show their consent under the lien law. Courtemanche v. Blackstone V.S.R. Co. 170 Mass. 50 (1898). See, however,Bordier v. Davis, 239 Mass. 448 (1921) in which the Supreme Judicial Court held that where an owner of property knew construction work was in progress and urged the contractors to hurry it on and told them that the houses that they were erecting were hers and that she would pay for them, this was held to have been assent to a contract made by workmen with another party.

This has been changed under the new law, which is as follows. Under the new law, an owner is defined under Section 2 as: “the owner of any interest in real property, or with any person acting for, on behalf of, or with the consent of such owner for the whole or part of the erection, alteration, repair or removal of a building, structure, or other improvement to real property. . . “.

Thus, under the broader definition it would appear that a general contractor contracting with a property manager of an apartment house - as opposed to contracting directly with the owner - can obtain a lien upon the apartment house because of the express or apparent authority of the property manager to contract for those services. (The reader is cautioned, nonetheless, to get written evidence of any third person’s authority to act on behalf of any owner wherever possible).

Similarly, by this language it would appear that by this broader definition a contractor performing tenant work - such as finishing out a restaurant at a mall, for example - would be able to obtain a lien on the tenant’s (leasehold ) interest.

E. Change in when a lien can be filed: abolition of the concept of completion date and the substitution of the concepts of substantial completion and termination of the general contractor; The concept of “notice of identification”.

The new rules for when a mechanics’ lien can or must be filed are a great deal broader than the older rules and should achieve real relief for creditors. That is the “good news”. The “bad news” is that the new procedure is somewhat more complicated than the older procedure - and particularly for the next several years when a Philadelphia lawyer or a Ouija Board (or both) will be consulted for every significant lien - and must be studied and thoroughly understood. For, under the new filing scenario, the concept of “completion date” has been essentially replaced by other criteria.

Those criteria which are that the lodestar for timing purposes under the new amendments is the substantial completion of the project as a whole or the filing of the notice of the termination of the general contractor by the owner: both new concepts with new forms for mechanics’ liens.

The general contractor, as before, can file a notice of contract at any time after execution of the written contract and, per the language of the statute, “whether or not the date for performance stated in such written contract has passed” (doing away with the effect of the Blount Bros. case) but not later than the earliest of the following three events: (1) sixty days after the filing or recording of the notice of substantial completion described, infra; or (2) ninety days after the filing or recording of the notice of termination under Section 2B (discussed infra) or (3) ninety days after such person or any person by through or under him performs the last labor or materials with regard to the real estate improvement.

This timing mechanism has introduced two new concepts into the lien law being the notice of substantial completion and a notice of termination (a sample form.

(1) Concept of “substantial completion” The new amendments define “substantial completion” as being a time when the “work under the written contract is sufficiently complete so that it can be occupied or utilized for its intended use” - a standard which reflects the current standard for the concept of substantial completion in the construction industry. As provided for under the new amendments at such time as substantial completion of any contract subject to a lien is reached, the owner and general contractor “shall execute and file or record in the appropriate Registry of Deeds a notice of substantial completion”. (For the purposes of statutory construction of words, the word “shall” is ordinarily construed as a mandatory word; an earlier draft of this statute seen by the author used the word “may”.) At such time as this is filed, the owner is required to serve written notice of the recording or filing of the notice of substantial completion to anyone who has previously filed a notice of contract. The contractor, upon the filing of the notice of substantial completion, is required to serve written notice of the recording or filing of the notice of substantial completion upon all of his subcontractors subject to written contracts and upon those persons who have given a “written notice of identification” to the general contractor prior to the date the notice of substantial completion is filed. (The concept of “notice of identification” will be explained below).

Such notices by the owner and general contractor have to be mailed certified mail, return receipt requested.

(2) The new “notice of termination”

The new amendments to the law also introduce the concept of the filing of the notice of termination. Upon the termination of the owner of the general contractor prior to the filing of the notice of substantial completion with regard to a contract subject to a potential mechanics’ lien, the owner “shall execute and file or record in the appropriate Registry of Deeds a notice of termination”. At such time as the owner makes that filing, he is required to serve written notice of the recording or filing of the notice of termination upon the general contractor and upon every person who has filed or recorded prior to that date a notice of contract, which notice has to be provided by certified mail, return receipt.

Moreover, upon receipt of such notice from the owner, the general contractor shall deliver a copy of such notice to every person who has entered into a written contract directly with the general contractor (thus, first tier subcontractors) or who has given to the general contractor a written notice of identification (thus second tier subcontractors). (One would think that at such a point as general contractor termination, the general contractor would lack the incentive to follow through with this notice.)

From all the notices required by these two amendments, one would think that its drafters either had stock in Weyerhauser or in the United States Postal Service, if that were possible!

(3) The new “notice of identification”

The idea behind a notice of identification is for a second tier subcontractor to give notice to the general contractor of his/her/its existence. If such a second tier subcontractor does not serve upon the general contractor a notice of identification, then the amount of such second tier subcontractor’s lien shall not exceed the amount due or to become due under the subcontract between the general contractor and the subcontractor whose work includes the work of the second tier subcontractor as of the date such person files his notice of contract. Put another way, in the absence of a notice of identification, a second tier subcontractor is limited to whatever money is in his contracting party’s (the subcontractor’s) account as due or to become due from the general contract at the time that such lien is filed. The second tier supplier/subcontractor, if interested in filing a notice of identification, has to give written notice of that notice - mail a copy - to the general contractor within thirty days of commencement of his performance. You will note that the notice of identification specifically provides for the dollar amount of the contract. It is not necessary, however, to be stated for contracts for the rental of equipment, appliances or tools. Moreover, the amount stated in any notice of identification shall not limit the amount of the lien. An inaccuracy in the naming of the general contractor or other information in such notice shall not affect its validity provided that there is “actual notice”. The only way I know of providing actual notice - as this concept is usually defined in these types of statutes - is to have a return receipt after sending the notice certified mail or by having the notice delivered by a constable or other officer authorized for the service of civil process with a proof of service. As one can imagine the argument being made that a fax transmittal report is “actual notice”, relying on such notification exclusively would appear to be rather dangerous, particularly where this statute in other places talks about sending notices certified mail, return receipt requested and the “law of faxes” is so unestablished.

(4) When a subcontractor must file a subcontractor’s lien.

Initially, the form for the notice of contract for a subcontractor is much more elaborate than what used to be required under the existing law. Thus, in the new notice of contract, the subcontractor has to provide essentially the same information - even, more - than would have been required under the old sworn statement of claim. For example, the subcontractor has to indicate the contract price, agreed change orders, pending change orders, disputed claims and indicate the amount of payments received.

This is when the subcontractor must file the notice of contract. Initially, the subcontractor can file the notice of contract at any time after the execution of a written subcontract, whether or not the date for performance of the work has passed and whether or not the work has been performed. However, the notice of contract must be filed not later than the earliest of: (1) sixty days after the filing or recording of the notice of substantial completion discussed elsewhere; or (2) ninety days after the filing or recording of the notice of termination discussed elsewhere; or (3) ninety days after the last date a person entitled to enforce a lien under section two of the new act - relating to general contractors - or anyone claiming by, through or under the general contract to have performed labor or materials or both labor and materials to the project.

F. Filing the ‘statement of account’ and subsequent suit

A general contractor must file a statement of account at the Registry of Deeds within the earliest of ninety days after recording the notice of substantial completion, within 120 days after recording the notice of termination or within 120 days after the last furnishing of labor or materials or rental equipment or tools by or through the general contract. The suit to enforce the lien in the Superior or District Court has to be filed within 90 days after filing the statement of account and an attested to copy of the complaint has to be filed at the Registry of Deeds within 30 days of commencement of the civil action! (Now the lay reader can understand why so many middle-aged - and younger - lawyers have so little hair: we pull it out trying to keep track of deadlines such as these!)

For subcontractors, they have to, of course, serve the notice of contract upon the owner by certified mail with a return receipt. Thereafter, they record the statement of account within the earliest of 90 days after the recording of the notice of substantial completion, within 120 days after recording the notice of termination or within 120 days after the last person entitled to claim a lien under Section 2 - that section applying to general contractors - last performs the labor or furnishes material.

Then, an action to enforce the lien must be filed in the Superior or District Court within 90 days after the filing of the statement of account. Similarly, the subcontractor must record a certified or attested-to copy of the complaint at the Registry of Deeds within 30 days of the commencement of the civil action.

For both general contractors and subcontractors, the time period for filing (recording) a statement of account is the earliest of the three options set forth above.

G. Summary process in Court for various matters.

Those who have filed mechanics’ liens under the old law know that this is not an action to be taken by those faint of heart. One of the problems with mechanics’ liens under the existing law is attempting to find out whether a lien is valid or invalid which can, of course, have a great deal of effect with regard to situations involving lenders. Section 15A of the new law provides that owners, contractors and mortgage holders can contest whether or not a particular lien is valid may apply to the Superior Court of the county where the land lies or in the judicial district where such land lies for an order summarily discharging of record the alleged lien or notice, as the case may be. An order of notice - a summons - to appear and show cause why the relief demanded in the complaint should not be granted shall be served upon the necessary party no later than seven days prior to the date of the scheduled hearing. Upon granting or denying the application, the court shall enter a final judgment on the matter involved or expeditiously order such further proceedings as are just.

Thus, there is now a “summary process” procedure whereby insufficient liens (or claimed insufficient liens) and other matters can be speedily brought to court and resolved, thus minimizing delays and expense to the parties.

Another change to the law involves lenders. Under Section 33 of the new amendments, lenders are prohibited from refusing to advance funds solely because the general contractor files a notice of contract, provided the general contract provides the statutory partial waiver and subordination of lien form with each progress payment. This provision is limited only to the general contractor and does not affect subcontractors.

One of the clarifications under the new law is who has the authority to sign the notice of contract and statement of account. For a corporation, a president, vice president, treasurer, clerk, secretary or any assistant to the foregoing, a principal, a partner, a proprietor, a trustee, or attorney for the entity entitled to record or file such an instrument may sign such documents. No corporate vote is required for a filing although a certificate of the acknowledgment or other proof of due execution shall be endorsed or annexed to such instrument as filed with the Registry of Deeds.


This is a pretty complicated law and it will be the rare individual who will understand these concepts thoroughly without reading them or the statute enacting them several times. Perhaps the biggest single improvement of the new law is expanding the time within which a mechanics’ lien can be filed. Undoubtedly, and particularly where many private owners do not require payment bonds from general contractors, mechanics’ lien practice will geometrically increase. The new statute will not be fully understood for many years in terms of various definitions and other items, only some of which have been suggested above. For, it will take several years of litigation and the subsequent appeals for appellate courts to more finely detail what the statute fully (really) means. The new statute, along with the wording of the older statute specifically provides that no contractual provisions purporting to bar the filing of a notice of contract of the taking of any steps to enforce a lien as set forth in Chapter 254 or purporting to subordinate such rights to the rights of other persons is enforceable and, in fact, such provisions are against public policy and are void.

The biggest problem of the existing law has been done away with: the paucity in the amount of time available within which to file a lien. More time is granted under this statute which will greatly enhance the ability of subcontractors and general contractors to file liens and, particularly, not to file them unnecessarily or prematurely.

A practice problem area under the existing statute is to obtain an accurate legal description of the land which is unchanged by the new statute. Anew problem in lien practice under the new law will be to ascertain whether or not any particular project is governed by the new law. Under the old law, all that one had to do was obtain the name of the record owner and get a legal description of the real estate. To determine whether or not the lien has to be filed under the provisions of the new law or under the provisions of the old law, one will have to see whether or not there are any notices of contract on file and whether or not there is a first mortgage on file, which is substantially more work (expense) at the Registry of Deeds than was required previously. Of course, the tradeoff for all of the requirements of the new law is to hopefully enact a better lien law for the protection of subcontractors, suppliers and general contractors in Massachusetts construction. And, the greater certainty that any aggrieved party not only can file a lien but has a greater amount of time within which to file a lien will hopefully have the salutary effect of improving the flow of money in Massachusetts private construction projects.

Copyright, Jonathan Sauer, 1996 This article is intended to be general information and does not constitute specific legal advice. If you need legal advice, your interests would be best served by consulting with an attorney knowledgeable in the area of your concern.

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