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.
“Levelset takes something that is pretty complex and makes it easy.”
Notice of Intent to Lien required to be filed 10 days before filing lien.
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.
Enforcement deadlinesIn 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 deadlinesNotice of Intent to Lien required to be filed 10 days before filing lien.
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.
Enforcement deadlinesIn 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 deadlinesNotice of Intent to Lien required to be filed 10 days before filing lien.
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.
Enforcement deadlinesIn 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.
TopicContractors, 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.
In North Dakota, mechanics lien rights extend 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.
No, there is no specific requirement that construction contracts be in writing in order to be able to file a Georgia mechanics lien. However, it’s always best practice to get your agreements in writing to avoid any confusion or complications.
No, if the work requires a license by the state of North Dakota and the claimant does not have a valid license, not only will they be unable to file a mechanics lien, they will also have no right to maintain any action for nonpayment related to their construction business.
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.
A North Dakota Construction Lien is governed by ND Cent. Code §35-27-13, and should contain the following information:
• Claimant’s information;
• Lien amount;
• Property description;
• First and last dates of furnishing labor and/or materials;
• Hiring party’s information; &
• Owner’s information.
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.
No, North Dakota law does not require a mechanics lien to be notarized. It may simply be signed.
No. In North Dakota, a mechanics lien amount 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.
North Dakota mechanics lien claims are documents recorded with the county recorder’s office. For your mechanics lien to be valid, you must record it in the county where the job is physically located. North Dakota counties each have their own unique rules and requirements.
To help you, we’ve assembled all of the offices in North Dakota that record mechanics liens. These pages will walk you through the county’s specific formatting requirements, deadlines, fees, process to file, and answers to frequently asked questions.
There are a lot of questions on this page about who can file a North Dakota mechanics lien, when it must be filed, what types of rules apply, and more. But you may be wondering something much more practical: how do I actually get my mechanics lien recorded and filed?
• For a full breakdown of the process, you may want to consult: How to File a North Dakota Mechanics Lien: A Step-by-Step Guide
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 county recorder’s office 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.
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.
No, North Dakota is considered an “unpaid balance” lien state, meaning that a claimant’s amount is limited to the remaining contract price due to the general contractor at the time the claim is filed; thus, time is of the essence for subcontractors in North Dakota to file their lien claims
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.
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.
I would need to discuss this directly with the contractor as the answer is that it depends. Best practice is to file the lien so you do not take chances, but finishing punch list items can in some cases extend lien rights.
Answered by William Cottrell | Owner https://www.levelset.com/payment-help/question/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 Matt Viator | Levelset Admin https://www.levelset.com/payment-help/question/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.
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 Matt Viator | Levelset AdminContractors & 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.
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.
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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.
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, N.D. Cent. Code § 35-27-01 et. seq. The full text of the North Dakota Construction Lien Law is provided below. Updated as of May 2023.
[Effective until 8/1/2023]
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.
[Effective 8/1/2023]
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 these purposes, or dig or construct any fences, wells, or drains upon the improvement, or perform any labor or services upon the improvement; 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 that 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 the 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 is not determinable by the contract for rental unless the owner is a party to the rental contract.
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.
6. “Person” means every natural person, fiduciary, association, corporation, or limited liability company.
7. “Subcontractor” means a person contributing any skill, labor, or materials to the improvement which does not have a direct contract with the owner; and, includes any person that enters a contract with a subcontractor , for the performance of any part of the subcontractor’s contract.
[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.
