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North Dakota Mechanics Lien Guide and FAQs

Fact-checked by the Levelset Legal Team
Last updated June 25, 2020
If contractors and suppliers don’t get paid on a construction project in North Dakota, they can file a mechanics lien to secure payment. A mechanics lien is a legal tool that provides the unpaid party with a security interest in the property. This page breaks down the rules, requirements, and deadlines you need to follow to file a North Dakota mechanics lien.

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North Dakota lien law deadlines for:

  • Prime Contractors
  • Suppliers/Others
Preliminary notice deadlines
10 days

Notice of Intent to Lien required to be filed 10 days before filing lien.

Send Your Notice
Mechanics lien deadlines
90 days

Lien must be filed within 90 days from last delivery of labor or materials. Notice of Intent to Enforce must be sent 20 days before filing enforcement action.

File A Lien Fast
Enforcement deadlines
3 years

In North Dakota, an action to enforce a mechanics lien must be initiated within 3 years from the date on which the lien was filed.

However, this deadline can be significantly shortened. If the property owner, or other interested party, serves a proper demand on the claimant, the deadline is shortened to 30 days from receipt of that written demand.

Preliminary notice deadlines
10 days

Notice of Intent to Lien required to be filed 10 days before filing lien.

Send Your Notice
Mechanics lien deadlines
90 days

Lien must be filed within 90 days from last delivery of labor or materials. Notice of Intent to Enforce must be sent 20 days before filing enforcement action.

File A Lien Fast
Enforcement deadlines
3 years

In North Dakota, an action to enforce a mechanics lien must be initiated within 3 years from the date on which the lien was filed.

However, this deadline can be significantly shortened. If the property owner, or other interested party, serves a proper demand on the claimant, the deadline is shortened to 30 days from receipt of that written demand.

Preliminary notice deadlines
10 days

Notice of Intent to Lien required to be filed 10 days before filing lien.

Send Your Notice
Mechanics lien deadlines
90 days

Lien must be filed within 90 days from last delivery of labor or materials. Notice of Intent to Enforce must be sent 20 days before filing enforcement action.

File A Lien Fast
Enforcement deadlines
3 years

In North Dakota, an action to enforce a mechanics lien must be initiated within 3 years from the date on which the lien was filed.

However, this deadline can be significantly shortened. If the property owner, or other interested party, serves a proper demand on the claimant, the deadline is shortened to 30 days from receipt of that written demand.

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North Dakota Mechanics Lien FAQs

Contractors, suppliers, property owners, construction lenders, and other vendors will encounter all kinds of lien-related paperwork and questions when working on North Dakota construction jobs. Here are some of the common issues you may encounter, and answers written by construction attorneys and payment experts.

Lien FAQs

Who can file a North Dakota Mechanics Lien?

In North Dakota, mechanics lien protection extends to contractors, subcontractors, and suppliers. North Dakota provides broad protection to parties working or providing materials to a construction project. Suppliers to suppliers are entitled to lien rights in North Dakota. Architects, surveyors, engineers, professional soil testers, mappers, and parties engaging in demolition or excavation are generally also protected by the ability to file mechanics liens.

When is the deadline to file a North Dakota Mechanics Lien?

In North Dakota, a lien claimant must file a mechanics lien within 90 days after the last date on which the lien claimant furnished labor or material to the project in order to receive full protection.

A lien may be filed later, but a belated lien will not be valid as to purchasers or encumbrances the rights of which accrue prior to the filing of the lien. It will also be invalid as to the owner of the property to the extent that the property owner has paid the general contractor prior to the filing of the lien.

In any event, even a late mechanics lien must be filed within 3 years from the first furnishing of labor or materials to the project. It is unclear, however, whether the three-year period starts to run from the first furnishing of labor or materials on the project as a whole, or the first furnishing of labor or materials by the potential lien claimant.

It may be best practice, then, for a lien claimant to treat the period as beginning to run from the start of the project if the primary 90-day period is missed.­­

Do I need to send notice the Lien was recorded?

No. North Dakota does not require any notice that a mechanics lien has been filed to be sent to any party. The filing of the mechanics lien in the Registry of Deeds of the county in which the property is located has been determined to constitute sufficient notice to the interested parties.

As a practical matter, however, it may be best practice for a lien claimant to send a copy of the mechanics lien to the property owner as it may facilitate payment.

Can I include Attorney's Fees, collection costs, or other amounts in the Lien total?

No. In North Dakota, a mechanics lien is limited to difference between the “agreed upon sum” or “the reasonable value of work done and the skill and material furnished” and the amount paid to the lien claimant. The value of a change order, or other add-on, is probably includable in the lien claim. Attorney’s fees, or indirect or consequential damages are not included in the lien claim itself. If the property owner successfully defends against a mechanics lien in court, the property owner will be awarded costs and attorney’s fees from the unsuccessful lien claimant.

When is the deadline to enforce a North Dakota Mechanics Lien, or, how long is my Lien effective?

In North Dakota, an action to enforce a mechanics lien must be initiated within 3 years from the date on which the lien was filed. It is possible for this time period to be dramatically shortened, however. If the property owner, or other person with an interest, serves a written demand upon the lien claimant as set forth in North Dakota law, the lien claimant is required to commence a lien enforcement action within 30 days from receipt of that written demand.

Will my North Dakota Lien have priority over pre-existing mortgages or construction loans?

In North Dakota, a mechanics lien has priority over liens or encumbrances that attach to the property after the project commences. For purposes of priority, mechanics liens relate back to the first furnishing of labor or materials on the project notwithstanding the fact that the particular lien claimant may have furnished labor or materials at a later date. There is, however, an exception for construction mortgages. A mechanics lien will not have priority over a construction mortgage in North Dakota even if the construction mortgage is unrecorded at the time labor or materials are first furnished.

As between competing mechanics liens, the liens are grouped by tier and given priority in the following order: 1) manual labor, 2) materials, 3) subcontractors other than manual laborers, and 4) general contractors.

Liens filed after the 90-day period, but before the 3-year expiration, are granted priority only by the date of their filing.

Must the North Dakota Lien include a legal property description?

It is unclear. In North Dakota, a mechanics lien is required to describe the property. A full legal description would clearly satisfy this requirement, but it is not apparent how “descriptive” the property description must be. Best practice would be to include a legal description of the property, but a description sufficient for identification may satisfy this requirement.

Must the Lien be notarized?

No. North Dakota does not require a mechanics lien to be notarized. It may simply be signed.

Can I file a North Dakota Lien if I'm unlicensed?

North Dakota imposes no specific licensing requirement in order to file a valid mechanics lien. However, it is never a good idea to perform work for which a license is required without having the proper license.

Can I file a North Dakota Lien on a condominium project?

Yes. A mechanics lien may be filed against a condominium project in North Dakota, to the extent you are a party otherwise allowed to file a mechanics lien.

Who cancels the North Dakota Lien if/when I get paid?

There is no specific provision in North Dakota stating which party is responsible for discharging a lien when the obligation underlying the lien is paid. However, when a lien is filed against a property, any payment made to satisfy that lien is generally made for the consideration of the lien being released.

What are the Lien Waiver Rules?

North Dakota does not have statutory lien waiver forms; therefore, you can use any lien waiver form. Since lien waivers are unregulated, be careful when reviewing and signing lien waivers.

North Dakota statutory law is silent regarding advance lien waivers.  While it is unclear how an advance lien waiver would be treated in respect to the paying party, an advance lien waiver can likely be relied on by third parties.

To learn more about lien waivers, see our North Dakota Lien Waiver FAQs and Resources.

People are asking North Dakota construction attorneys:

Can we amend a lien in North Dakota?

If the debts giving rise to a mechanics lien claim have been paid, then that lien should be released. Even if there are future debts that may have to be paid - that doesn't serve as a valid basis for leaving a prior lien intact. Levelset discusses that idea here: Do you Have to Cancel a Mechanics Lien, or Will It Expire? Generally speaking, a second lien claim could likely be filed later on - and that'd probably be more appropriate. Granted, when releasing a lien on an ongoing job, it's crucial to make sure that release won't block future lien filings. Sometimes, lien releases will relinquish all future rights on the project - so it'd be wise to make sure the release simply releases the filed lien document because the specific debts on that lien have been paid.
Answered by Matthew Viator | Senior Legal Associate

Construction loan lien

If someone has performed work on your property but has gone unpaid for their work, then they may well be entitled to file a mechanics lien against the project property. This is true even if payment is supposed to come from someone other than the property owner - such as a construction lender. Note, though, that the kind of lien a construction lender may obtain against the project property operates separately from a traditional mechanics lien claim. And, lenders will not be entitled to file a mechanics lien since they haven't performed work or furnishing materials which has improved the project property, themselves.

Additional mechanics lien resources

I think these resources should be helpful for better understanding how mechanics lien claims operate in general, how lien claims operate in North Dakota, and how to respond to the threat or filing of a mechanics lien claim: - What is a Mechanics Lien? | Mechanics Lien 101 - North Dakota Mechanics Lien Guide and FAQs - I Just Received a Notice of Intent to Lien – What Should I Do Now? - A Mechanics Lien Was Filed on My Property – What Do I Do Now?
Answered by Matthew Viator | Senior Legal Associate

What is the Code provision that states equipment supply co's only have lien rights if in direct contact with the owner?

§ 35-27-06 of North Dakota's mechanics lien statute creates limitations on what amounts can be liened. This section limits the extent of a mechanics lien for those hired by someone other than the owner to "the reasonable value of the work done and of the skill and material furnished." However, note that § 35-27-01(4) of the state's lien statute limits what falls under the definition of "material". That definition seems to include rental equipment, but it puts limitations on what amounts can be claimed by those renting it. The section reads, in relevant part: "The rental value shall not be determinable by the contract for rental unless the owner is a party thereto." So, in a situation where material or equipment is rented by someone other than the owner of the project property, that rental might not be considered "material" for the strict purposes of the North Dakota mechanics lien statute - and thus, a mechanics lien may not be available since the amount of the purported lien would be undeterminable. Note, though, that I'm not aware that this issue has been brought up in a North Dakota court. So, it's possible that courts would have a different interpretation of those provisions. For the most clarity, it might be helpful to consult with a local construction attorney. Oil and gas liens Unfortunately, I'm not very familiar with the topic of oil and gas liens. However, it seems like there are some good resources on that front online. I've linked a few promising resources below: (1) Protections for Oil and Gas Operators and Working Interest Owners in a Bust Cycle (2) North Dakota Oil and Gas Well or Pipeline Construction Lien Law Summary
Answered by Matthew Viator | Senior Legal Associate

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5 essential things to know about North Dakota mechanics liens

Contractors & suppliers have strong lien rights in North Dakota. If a contractor or supplier isn’t paid on an North Dakota job, they can turn to filing a lien to speed up payment and protect themselves. However, there are specific requirements and rules that must be followed.  Here are 5 essential things you need to know about North Dakota’s mechanics lien law.

Equipment leasing companies only have mechanics lien rights if in direct contact with the property owner

North Dakota provides broad protection to parties on a construction project, as contractors, subcontractors, suppliers, suppliers to suppliers, architects, surveyors, engineers, professional soil testers, mappers, and parties involved with excavation and demolition are generally protected. Equipment lessors, however, can only file a mechanics lien if they are contracted directly with the property owner, or if the property owner signs the contract between the equipment lessor and the hiring party.

Project participants have 3 years to file a North Dakota mechanics lien

North Dakota is unique in that a project participant can file lien rights after the deadline. However, in order to get full rights, adhering to the deadline is crucial. The deadline for a project participant to fully protect lien rights is 90 days after last furnishing labor or materials to the project. If you do not file a mechanics lien within these 90 days, you have 3 years in which to file a lien. This late-filed lien is not effective against subsequent purchasers or encumbrances arising prior to the date of filing the lien. There is some debate as to whether the “first furnishing date” is the first date of the lien claimant’s furnishing or the date the project as a whole started. To be safe and not miss the 3-year deadline, it is advisable to measure from the first date any party delivered to the project.

Notice of Intent to lien is required

Preliminary notice is not required, to file a lien, but a Notice of Intent to Lien is required to be sent 10 days before the filing of the lien itself.

A lien on the "structure" rather than the "property" can take priority

In North Dakota, if you working on a new construction project, you may be able to file a lien against the structure itself and not the land it is on. Material suppliers and laborers can claim this lien if they send a preliminary notice. This lien on the structure itself has priority over prior “title, claim, lien, encumbrance, or mortgage upon the land upon which the building, erection, or improvement is erected.”

It's always a good idea to be licensed

In North Dakota, there are no specific requirements that state you need to be licensed to file a mechanics lien. While it is always best practice to be licensed to perform the work, being unlicensed will not invalidate a mechanics lien.

How to file a Mechanics Lien in North Dakota (DIY)

1

Read the guide

Read the guide
Construction payment North Dakota

In our step-by-step guide, we will walk you through each step required to qualify for and file a North Dakota mechanics lien. This guide explains the notices you need to send, the information required on the North Dakota mechanics lien form, and essential tips about delivering it to the county office for recording.

2

Send a notice of intent to lien

Get a notice of intent form
Notice of Intent to Lien Illustration

Before you prepare a mechanics lien in North Dakota, you need to send a notice of intent to lien to the property owner. The deadline to send notice is 10 days before you file the lien claim. Failure to submit a NOI results in the loss of your lien rights.

3

Get the right lien claim form

Get the right form
Stack of mechanics liens

After you send the notice of intent, it’s time to prepare the lien claim itself. Download a blank North Dakota Claim of Lien form here. Our free forms were created by construction attorneys to meet the requirements in North Dakota mechanics lien laws. The state statutes are very specific about the language and formatting required in a lien claim document. We make it easy to get this part right.

See all construction forms for North Dakota

4

Fill out the form

Be careful! Accuracy is important.
Check for lien accuracy

This is the trickiest part of the process. That’s because North Dakota lien law is strict when it comes to the information that’s required and the format of the document. Making a mistake on the lien form could invalidate your claim, leaving you with no recovery options. All of the information must be 100% accurate, including the legal names of each party, the property description, and the claim amount. Review every detail carefully.

5

File your lien with the county recorder

Find your county office
Mechanics Lien Recorded

Now that the NOI has been sent and the form has been prepared, it’s time to record your lien claim. Lien claims are filed at the recorder’s office in the North Dakota county in which the property is located. View a full list of North Dakota recorder’s offices to find contact information, fees, and filing requirements.

The deadline to file a lien in North Dakota is 90 days after last furnishing.

6

After you file

Learn the next steps
4 steps after filing your lien: a video

After you file your lien, you have a few options to recover payment. You can send a notice of intent to foreclose that serves as a final warning. If that doesn’t spur a payment, you can enforce your lien claim.

In North Dakota, you have 3 years after filing to enforce your lien claim. However, if the owner files a demand to enforce, you only have 30 days.

How to file a Mechanics Lien with Levelset
1

Select Mechanics Lien document.

2

Provide basic job information.

Levelset files the document for you. Postage included!

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North Dakota Mechanics Lien Statutes

The provisions of the North Dakota statutes that permit the filing of mechanics liens and materialman’s liens can be found in North Dakota’s Construction Lien Law, § 35-27-01 et. seq. The full text of the North Dakota Construction Lien Law is provided below, and has been updated as of 2011.

North Dakota's Mechanics Lien Statute

§ 35-27-01. Definitions

In this chapter, unless the context or subject matter otherwise requires:
1. “Contract” means any agreement for improving real property, written or unwritten, express or implied.
2. “Improve” means to build, erect, place, make, alter, remove, repair, or demolish any improvement upon, connected with, or beneath the surface of any land, or excavate any land, or furnish materials for any of such purposes, or dig or construct any fences, wells, or drains upon such improvement, or perform any labor or services upon such improvement; or perform any architectural services, construction staking, engineering, land surveying, mapping, or soil testing upon or in connection with the improvement; or perform any labor or services or furnish any materials in laying upon the real estate or in the adjoining street or alley any pipes, wires, fences, curbs, gutters, paving, sewer pipes or conduit, or sidewalks, or in grading, seeding, sodding, or planting for landscaping purposes, or in equipping any such improvement with fixtures or permanent apparatus.
3. “Improvement” means any building, structure, erection, construction, alteration, repair, removal, demolition, excavation, landscaping, or any part thereof, existing, built, erected, improved, placed, made, or done on real estate for its permanent benefit.
4. “Materials” means materials or fixtures which are incorporated in the improvement and those which become normal wastage in construction operations, custom or specially fabricated materials for incorporation in the improvement, building materials used for construction, but not remaining in the improvement, subject to diminution by the salvage value of such materials, tools, appliances, or machinery, excluding hand tools, used in the construction of the improvement to the extent of the reasonable value for the period of actual use. The rental value shall not be determinable by the contract for rental unless the owner is a party thereto.
5. “Owner” means the legal or equitable owner and also every person for whose immediate use and benefit any building, erection, or improvement is made, having the capacity to contract, including guardians of minors or other persons, and including any agent, trustee, contractor, or subcontractor of such owner.
6. “Person” means every natural person, fiduciary, association, corporation, or limited liability company.
7. “Subcontractor” means all persons contributing any skill, labor, or materials to the improvement except such as have contracts therefor directly with the owner; and, includes any person who enters into a contract with a subcontractor as above defined, for the performance of any part of such subcontractor’s contract.

§ 35-27-02. Persons Entitled to Construction Lien - Notice

Any person that improves real estate, whether under contract with the owner of such real estate or under contract with any agent, trustee, contractor, or subcontractor of the owner, has a lien upon the improvement and upon the land on which the improvement is situated or to which the improvement may be removed for the price or value of such contribution. Provided, however, that the amount of the lien is only for the difference between the price paid by the owner or agent and the price or value of the contribution. If the owner or agent has paid the full price or value of the contribution, no lien is allowed. Provided further that if the owner or an agent of the owner has received a waiver of lien signed by the person that improves the real estate, a lien is not allowed.
Any person that extends credit or makes a contract with any agent, trustee, contractor, or subcontractor of the owner for the improvement of real estate, upon demand, has the right to request and secure evidence of the legal description of the real estate upon which the improvement is located, including the name of the title owner of the real estate. Written notice that a lien will be claimed must be given to the owner of the real estate by certified mail at least ten days before the recording of the construction lien.

§ 35-27-03. When Lien Attaches

As against the owner of the land, subject to section 35-27-02, such liens attach and take effect from the time the first item of material or labor is furnished upon the premises for the beginning of the improvement. As against a bona fide purchaser, mortgagee, or encumbrancer without notice, no lien may attach prior to the actual and visible beginning of the improvement on the ground. Subject to the exception set forth in section 35-27-04, all such liens are preferred to any mortgage or other encumbrance not then of record, unless the lienholder had actual notice thereof.

§ 35-27-04. When Lien Attaches - Exception - Filing

Liens for the following improvements shall attach to real property only in the manner herein prescribed. In the case of an improvement:
As against a mortgage given in good faith for the purpose of providing funds for the payment of materials or labor for the improvement, a lien may not be preferred even though such mortgage is recorded after the time the first item of material or labor is furnished upon the premises, or after the actual visible beginning of the improvement unless the person furnishing such labor, skill, or material for such improvement, before the recording of such mortgage, files for record a construction lien.

§ 35-27-05. Repealed by S.L. 2009, ch. 293, § 16, eff. Aug. 1, 2009

§ 35-27-05. Repealed by S.L. 2009, ch. 293, § 16, eff. Aug. 1, 2009

§ 35-27-06. Extent and Amount of Lien

If the contribution is made under a contract with the owner and for an agreed price, the lien as against the owner must be for the sum so agreed upon, otherwise, and in all cases as against others than the owner, it must be for the reasonable value of the work done and of the skill and material furnished.

§ 35-27-07. Title of Vendor or Consenting Owner - Subject to Liens

When land is sold under an executory contract requiring the vendee to improve the same and such contract is forfeited or surrendered after liens have attached by reason of such improvements, the title of the vendor is subject thereto, but the vendor is not personally liable if the contract was made in good faith. When improvements are made by one person upon the land of another, all persons interested therein otherwise than as bona fide prior encumbrancers or lienors are deemed to have authorized such improvements, insofar as to subject their interests to liens therefor. Any person who has not authorized the same may protect the person’s interest from such liens by serving upon the person doing work or otherwise contributing to such improvement within five days after knowledge thereof, written notice that the improvement is not being made at the person’s instance, or by posting like notice, and keeping the same posted, in a conspicuous place on the premises. As against a lessor no lien is given for repairs made by or at the instance of the lessor’s lessee, unless the lessor has actual or constructive notice thereof and does not object thereto.

§ 35-27-08. Repealed

§ 35-27-08. Repealed

§ 35-27-09. Payments to Contractors Withheld

The owner may withhold from the owner’s contractor so much of the contract price as may be necessary to meet the demands of all persons, other than such contractor, having a lien upon the premises for labor, skill, or material furnished for the improvement, and for which the contractor is liable, and the owner may pay and discharge all such liens and deduct the cost thereof from such contract price. Any such person having a lien under the contractor in accordance with section 35-27-02 may serve upon the owner at any time a notice of that person’s claim. The owner, within fifteen days after the completion of the contract, may require any person having a lien hereunder, by written request therefor, to furnish to the owner an itemized and verified account of the person’s claim, the amount thereof, and the person’s name and address, and no action or other proceeding may be commenced for the enforcement of such lien until ten days after such statement is so furnished. The word “owner”, as used in this section, includes any person interested in the premises otherwise than as a lienor thereunder.

§ 35-27-10. Mingling of Charges Defeats Right to Lien

The mingling of charges for materials to be used in the construction, alteration, repair, or improvement of the property of different persons, except in the cases of joint ownership or ownership in common, defeats the right to a lien against either or any of such persons.

§ 35-27-11. Repealed by S.L. 2009, ch. 293, § 16, eff. Aug. 1, 2009

§§ 35-27-11. Repealed by S.L. 2009, ch. 293, § 16, eff. Aug. 1, 2009

§ 35-27-12. Repealed by S.L. 2009, ch. 293, § 16, eff. Aug. 1, 2009

§§ 35-27-12. Repealed by S.L. 2009, ch. 293, § 16, eff. Aug. 1, 2009

§ 35-27-13. How Lien Perfected - Construction Lien Recorded

Every person desiring to perfect the person’s lien shall record with the recorder of the county in which the property to be charged with the lien is situated, within ninety days after all the person’s contribution is done, and having complied with the provisions of this chapter, a lien describing the property and stating the amount due, the dates of the first and last contribution, and the person with which the claimant contracted.

§ 35-27-14. Lien Not Lost for Failure to File Within Time - Exception

A failure to file within ninety days does not defeat the lien except as against purchasers or encumbrancers in good faith and for value whose rights accrue before the lien is filed, and as against the owner to the extent of the amount paid to a contractor before the recording of the lien. A lien may not be filed more than three years after the date of the first item of material is furnished.

§ 35-27-15. Repealed

§ 35-27-15. Repealed

§ 35-27-16. Inaccuracies in Lien Statement

A lien given by this chapter is not affected by any inaccuracy in the particulars of the lien, but, as against all persons except the owner of the property, the lien claimant must be concluded by the dates therein given, showing the first and last items of the claimant’s account. A lien may not exist for a greater amount than the sum claimed in the lien, nor for any amount, if it be made to appear that the claimant has knowingly demanded more than is justly due.

§ 35-27-17. Single Contract for Several Buildings - Amount of Claim Apportioned

If labor is done or materials furnished under a single contract for several buildings, structures, or improvements, the person furnishing the same is entitled to a lien therefor, subject to section 35-27-02, as follows: 1. If the improvements are upon a single farm, tract, or lot, upon all such buildings, structures, and improvements and the farm, tract, or lot upon which the same are situated. 2. If the improvements are upon separate farms, tracts, or lots, upon all the buildings, structures, and improvements and the farms, tracts, or lots upon which the same are situated, but upon the foreclosure of the lien the court, in the cases provided for in this subsection, may apportion the amount of the claim among the several farms, tracts, or lots in proportion to the enhanced value of the same produced by means of the labor or materials, if such apportionment is necessary to protect the rights of third persons.

§ 35-27-18. Construction Lien on Railway Contracts Obtainable

Every person that furnishes any labor, skill, or material for constructing, altering, or repairing any line of railway, or any improvement or structure appertaining to any line of railway by virtue of any contract with the owner, or the owner’s agent, contractor, or subcontractor authorized in writing to contract for the owner, has a lien upon such line of railway and the right of way of such railway, and upon all bridges, depots, offices, and other structures appertaining to the line of railway, and all franchises, privileges, and immunities granted to the owner of the line of railway for the construction and operation thereof, to secure the payment for the labor, skill, and materials, upon recording a lien, within ninety days from the last day of the month in which the labor or material was furnished, but a failure to record within the ninety days does not defeat the lien except to the extent specified in section 35-27-14.

§ 35-27-19. Land Subject to Lien

The entire land upon which any building, structure, or other improvement is situated, or to improve which labor is done or materials furnished, including that portion of the land not covered thereby, is subject to all liens created under this chapter to the extent of all the right, title, and interest of the owner for whose immediate use or benefit the labor was done or materials furnished.

§ 35-27-20. Collateral Security Does Not Impair Lien - Exception

The taking of collateral or other security for an indebtedness for which a lien might be claimed under the provisions of this chapter in no way impairs the right to the lien unless the security, by express agreement, is given and received in lieu of the lien.

§ 35-27-21. Complete and Independent Building - Lien Independent of Land - Notice to Owner

In addition to the lien provided by this chapter, but subject to the conditions of section 35-27-02, when material is furnished or labor performed in the erection or construction of an original, complete, and independent building, structure, or improvement, whether the same is placed upon a foundation or not, the lien attaches to the building or improvement in preference to any prior title, claim, lien, encumbrance, or mortgage upon the land upon which the building, erection, or improvement is erected. Upon the foreclosure of the lien, the building or improvement may be sold separately from the land and may be removed from the land within thirty days after the sale. The sale and removal of a structure or improvement separately from the land operates as a full satisfaction and discharge of the lien upon the real estate. At the time the material is furnished for such improvement, the seller shall notify the purchaser by delivering to the purchaser a written notice stating that the seller claims the right to foreclose the lien under the laws of the state, and in the event that there is a default in payment for the improvement, to remove the building from the real estate upon which it is placed regardless of whether or not said building is placed upon a foundation.

§ 35-27-22. Order of Priority of Classes of Construction Liens

1. Liens perfected under this chapter have priority in the following order:
a. For manual labor.
b. For materials.
c. Subcontractors other than manual laborers.
d. Original contractors.
2. Liens for manual labor filed within the ninety-day period must share ratably in the security. Liens for manual labor filed after the ninety-day period have priority in the order of the filing of such liens. Liens for materials filed within the ninety-day period must share ratably in the security and liens filed after the ninety-day period have priority in the order of the filing of such liens.

§ 35-27-23. Improvements on Leasehold Interest - Extent of Lien - Sale of Building

When the interest owned in land by the owner of the building, structure, or other improvement for which a lien is claimed, is only a leasehold interest, the forfeiture of the lease for nonpayment of rent or for noncompliance with any of the stipulations of the lease does not impair the lien so far as it applies to the building, structures, or improvements, but the improvements may be sold to satisfy the lien and may be removed by the purchaser within thirty days after the sale.

§ 35-27-24. Action to Enforce Construction Lien - Notice of Deficiency Judgment

Any person having a lien by virtue of this chapter may bring an action to enforce the lien in the district court of the county in which the property is situated. Any number of persons claiming liens against the same property may join in the action and when separate actions are commenced the court may consolidate the actions. Before a lienholder may enforce a lien, the lienholder shall give written notice of the lienholder’s intention so to do, which notice must be given by personal service upon the record owner of the property affected at least ten days before an action to enforce the lien is commenced, or by registered mail directed to the owner’s last-known address at least twenty days before the action is commenced. The judgment may direct that in the event that a deficiency remains after the sale of the real property subject to the lien an execution may issue for such deficiency.

§ 35-27-24.1. Costs and Attorney's Fees

Any owner that successfully contests the validity or accuracy of a construction lien by any action in district court must be awarded the full amount of all costs and reasonable attorney’s fees incurred by the owner.

§ 35-27-25. Requiring Suit to Be Commenced - Demand - Limitations of Action

Upon written demand of the owner, that person’s agent, or contractor, served on the person holding the lien, suit must be commenced and filed with the clerk of court within thirty days thereafter or the lien is forfeited. The demand must contain a provision informing the person holding the lien that if suit is not commenced within thirty days, the person holding the lien forfeits the lien. A lien is not valid or effective as such, nor may be enforced in any case, unless the holder of the lien asserts the same by complaint filed with the clerk of court within three years after the date of recording of the lien. If a summons and complaint asserting the validity of the lien is not filed in the office of the clerk of court of the county in which the lien is recorded within the limitations provided by this section, the lien is deemed satisfied and the clerk of court, upon request of any interested person, shall certify to the recorder that no summons and complaint has been filed and the lien is deemed satisfied under this section, who then shall record the verified certificate.

§ 35-27-26. Repealed by S.L. 2009, ch. 293, § 16, eff. Aug. 1, 2009

§ 35-27-26. Repealed by S.L. 2009, ch. 293, § 16, eff. Aug. 1, 2009

§ 35-27-27. Assignment of Claims

Any claim for which a lien may be or has been filed and the right to recover therefor under the provisions of this chapter may be assigned by an instrument in writing. Such assignment vests in the assignee all rights and remedies herein given, subject to all defenses that might have been interposed if such assignment had not been made.

§ 35-27-28. General Provisions

The general provisions of this title not in conflict with the provisions of this chapter are applicable to this chapter.