North Dakota Preliminary Notice FAQs

Yes. North Dakota imposes mandatory notice requirements for a valid mechanics lien claim, as well as providing for optional notices that may be provided to the owner by a potential lien claimant other than a primary contractor.

An optional notice may be provided to the property owner by a potential lien claimant other than a prime contractor for two purposes, and in two situations. The first potential reason is to give notice to the owner to withhold funds from the prime contractor in an amount necessary to cover the claimant’s lien, and to pay them directly.

The second potential reason is to retain the ability to claim a lien against solely the structure separate from the underlying property. It is possible for a laborer or material supplier to claim a lien on only a structure (without affecting the underlying property) provided that the project is the construction of a complete, independent, and original new structure. In order to claim this type of lien, a specific optional notice must be provided to the property owner.

The optional preliminary notice for lien on both land and structure may be provided at any time prior to the lien itself (perhaps prior to the mandatory notices, as well.)

The optional preliminary notice for lien on solely the structure must be received by the owner at the time of delivery of the materials.

The mandatory notice prior to filing a lien must be served on the property owner at least 10 days prior to the lien claimant recording the lien. This means that for a timely lien claim, the notice must be provided no later than 80 days after the date of last furnishing of labor and/or materials.

The optional notices are not required to be filed, so they cannot technically be filed late. Further, the optional notice for a lien on both the land and structure may be given at any time prior to the filing of the lien.

If the optional notice for a lien on solely the structure is not delivered to the owner at the time of delivering materials, the lien claimant is not allowed to claim only that particular type of lien.

The optional notices to owner must be “served” or “delivered” to the owner. This requirement is likely best met by sending the notice to the owner by certified mail, or certified mail, return receipt requested. However, since these notices are not required, any type of delivery is sufficient if actually delivered to the owner; sending by a method that allows delivery tracking provides this information.

The mandatory notice to owner prior to filing the lien (“Notice of Intent to Lien”) must be sent to the property owner by certified mail. Sending by certified mail, return receipt requested, should also satisfy this requirement if the lien claimant wishes.

No. All notices in North Dakota are only required to be sent to the property owner – no other notices are required to be sent.

Notices of Intent to Lien are considered delivered when mailed by certified mail. It is unclear whether the mailing of the optional notices meets the requirements for service or delivery if not actually received.

No. North Dakota does not require preliminary notice to be sent to preserve the right to make a claim on the contractor’s bond on a public project if the claimant is otherwise entitled to make a bond claim. However, any party may send notice if they so desire.

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