North Dakota Mechanics Lien Guide and FAQs

[Effective until 8/1/2023]

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.

[Effective 8/1/2023]

1. Any person that improves real estate under a contract with the owner of the 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 the contribution.

2. The amount of the lien is limited to the difference between the price paid by the owner, trustee, or agent and the price or value of the contribution. If the owner, trustee, or agent has paid the full price or value of the contribution, no lien is allowed.

3. If the owner, trustee, or agent of the owner has received a valid waiver of lien, signed by the person that improves the real estate, a lien is not allowed.

4. 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 legal or equitable owner of the real estate. Written notice a lien will be claimed must be given to the legal or equitable owner of the real estate by certified mail at least ten days before the recording of the construction lien.

5. Notwithstanding any provision in this section, any person that performs labor or furnishes materials or services under chapter 35-24 is prohibited from claiming or maintaining a lien under this chapter.

[Effective until 8/1/2023]

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.

[Effective 8/1/2023]

1. As against the legal and equitable owner , 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.

2. A lien may not attach against a person that acquires an interest in real estate, in good-faith, without actual or constructive notice of the claimant’s rights, before the actual and visible beginning of the improvement on the subject property.

3. Except as provided in section 35-27-04, all liens under this chapter are preferred to any unrecorded mortgage or other encumbrance unless the lienholder had actual notice of the unrecorded interest.

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.

[Repealed]

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.

[Effective until 8/1/2023]

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.

[Effective 8/1/2023]

1. When land is sold under an executory contract requiring the vendee to improve the land 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 in the land, other than as bona fide prior encumbrancers or lienors, are deemed to have authorized the improvements, and are subject to the liens attached to the real estate.

2. A person may object to any unauthorized improvements by :

a. Serving upon the person making the improvements, within five days after knowledge of the improvements, written notice that the improvement is unauthorized; or

b. Posting a notice objecting to the unauthorized improvements, and keeping the notice posted in a conspicuous place on the premises.

3. If the legal or equitable owner’s tenant orders improvements on leased real estate, no lien is allowed unless the legal or equitable owner has actual or constructive notice of the improvements and fails to object to the improvements on the leased property.

[Repealed]

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.

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.

[Repealed]

[Repealed]

[Effective until 8/1/2023]

Every person desiring to perfect the person’s lien shall record with the recorder of the 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.

[Effective 8/1/2023]

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. Unless the owner of the freehold estate also is the owner of the leasehold for wind turbines or an electric energy conversion facility for which the labor, materials, or services were supplied, if a recorded lien is for a wind turbine or associated facility under section 17-04-07, the recorded lien must contain the following statement in at least sixteen – point type:

The lien in this chapter attaches only to the leasehold for an electric energy conversion facility or wind turbines for which labor, materials, or services were supplied. This lien does not attach to or encumber the real property or freehold estate.

Failure to include the statement required under this section in the statement of the lien does not invalidate a lien on the leasehold or electric energy conversion facility.

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.

[Repealed]

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.

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.

[Effective until 8/1/2023]

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.

[Effective 8/1/2023]

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 the line of railway and the right of way of the 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 legal or equitable owner of the line of railway for the construction and operation of the railway, 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.

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.

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.

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.

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.

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.

[Effective until 8/1/2023]

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.

[Effective 8/1/2023]

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 legal or equitable 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 if a deficiency remains after the sale of the real property subject to the lien an execution may issue for the deficiency.

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.

Upon written demand by or on behalf of the owner which has been delivered to the lienor and filed with the county recorder, suit must be commenced and filed and a lis pendens as provided in chapter 28-05 must be recorded within thirty days after the date of delivery of the demand or the lien is forfeited. This thirty-day requirement applies regardless of the method of delivery and additional time may not be allowed based on the method of delivery. The demand must inform the lienor that if suit is not commenced and a lis pendens recorded within the thirty days required under this section, the lien is forfeited. A lien is not valid, effective, nor enforceable, unless the lienor commences an action and records with the county recorder a lis pendens within three years after the date of recording of the lien. If a lis pendens is not recorded within the limitations provided by this section, the lien is deemed satisfied.

[Repealed]

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.

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