§ 44A-23. Contractor's claim of lien on real property; perfection of subrogation rights of subcontractor. - North Carolina Statutes

§ 44A‑23.  Contractor'sclaim of lien on real property; perfection of subrogation rights ofsubcontractor.

(a)        First tiersubcontractor. – A first tier subcontractor, who gives notice of claim of lienupon funds as provided in this Article, may, to the extent of this claim,enforce the claim of lien on real property of the contractor created by Part 1of this Article. The manner of such enforcement shall be as provided by G.S.44A‑7 through 44A‑16. The claim of lien on real property isperfected as of the time set forth in G.S. 44A‑10 upon filing of theclaim of lien on real property pursuant to G.S. 44A‑12. Upon the filingof the claim of lien on real property, with the notice of claim of lien uponfunds attached, and the commencement of the action, no action of the contractorshall be effective to prejudice the rights of the subcontractor without hiswritten consent.

(b)        Second or thirdsubcontractor. –

(1)        A second or thirdtier subcontractor, who gives notice of claim of lien upon funds as provided inthis Article, may, to the extent of his claim, enforce the claim of lien onreal property of the contractor created by Part 1 of Article 2 of the Chapterexcept when:

a.         The contractor,within 30 days following the date the building permit is issued for the improvementof the real property involved, posts on the property in a visible locationadjacent to the posted building permit and files in the office of the clerk ofsuperior court in each county wherein the real property to be improved islocated, a completed and signed notice of contract form and the second or thirdtier subcontractor fails to serve upon the contractor a completed and signednotice of subcontract form by the same means of service as described in G.S.44A‑19(d); or

b.         After the postingand filing of a signed notice of contract and the service upon the contractorof a signed notice of subcontract, the contractor serves upon the second orthird tier subcontractor, within five days following each subsequent payment,by the same means of service as described in G.S. 44A‑19(d), the writtennotice of payment setting forth the date of payment and the period for whichpayment is made as requested in the notice of subcontract form set forthherein.

(2)        The form of thenotice of contract to be so utilized under this section shall be substantiallyas follows and the fee for filing the same with the clerk of superior courtshall be the same as charged for filing a claim of lien on real property:

"NOTICE OF CONTRACT

"(1) Name and address ofthe Contractor:

"(2) Name and address ofthe owner of the real property at the time this Notice of Contract is recorded:

"(3) General descriptionof the real property to be improved (street address, tax map lot and blocknumber, reference to recorded instrument, or any other description thatreasonably identifies the real property):

"(4) Name and address ofthe person, firm or corporation filing this Notice of Contract:

"Dated: __________

________________________________________

"Contractor

"Filed this the ____ day of________, ____.

______________________

Clerk of Superior Court"

(3)        The form of thenotice of subcontract to be so utilized under this section shall besubstantially as follows:

"NOTICE OF SUBCONTRACT

"(1) Name and address ofthe subcontractor:

"(2) General descriptionof the real property where the labor was performed or the material wasfurnished (street address, tax map lot and block number, reference to recordedinstrument, or any description that reasonably identifies the real property):

"(3)

"(i)       General description of thesubcontractor's contract, including the names of the parties thereto:

"(ii)       General description of the labor andmaterial performed and furnished thereunder:

"(4) Request is herebymade by the undersigned subcontractor that he be notified in writing by thecontractor of, and within five days following, each subsequent payment by thecontractor to the first tier subcontractor for labor performed or materialfurnished at the improved real property within the above descriptions of suchin paragraph (2) and subparagraph (3)(ii), respectively, the date payment wasmade and the period for which payment is made.

"Dated: _______________

____________________________________

Subcontractor"

(4)        The manner of suchenforcement shall be as provided by G.S. 44A‑7 through G.S. 44A‑16.The lien is perfected as of the time set forth in G.S. 44A‑10 upon thefiling of a claim of lien on real property pursuant to G.S. 44A‑12. Uponthe filing of the claim of lien on real property, with the notice of claim oflien upon funds attached, and the commencement of the action, no action of thecontractor shall be effective to prejudice the rights of the second or thirdtier subcontractor without his written consent. (1971, c. 880, s. 1; 1985, c.702, s. 4; 1991 (Reg. Sess., 1992), c. 1010, s. 1; 1993, c. 553, s. 13; 1997‑456,s. 27; 1999‑456, s. 59; 2005‑229, s. 1.)