35-27 Construction Lien - North Dakota Statutes

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CHAPTER 35-27CONSTRUCTION LIEN35-27-01. Definitions. In this chapter, unless the context or subject matter otherwiserequires: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 improvesreal 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.Page No. 1Any person that extends credit or makes a contract with any agent, trustee, contractor, orsubcontractor 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 section35-27-02, 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 fidepurchaser, 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. As against a mortgage given ingood 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. Notice of intention to claim lien - Recordation. Repealed by S.L. 2009,ch. 293,