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Subject to a Statutory Limitation on Lien, lien rights in North Dakota are available to persons who provide a broad range of service or materials for the improvement of real property. NDCC 35-27-02 defines persons entitled to a Mechanic’s Lien as: “Any person who improves real estate by the contribution of labor, skill or materials, whether under contract with the owner of such real estate or under contract with any agent, trustee, contractor or subcontractor of the owner. This includes the full spectrum of construction laborers and craftsmen and extends beyond workers who perform work on structures to, for example, those who operate equipment and install landscape items. To be lienable, the services do not have to go into a tangible part of the improvement, but simply must contribute to the improvement. Consequently, the courts have sustained a lien for surveyors, architects, engineers and construction managers whose work was loosely connected to the construction project. To give rise to a Mechanic’s Lien, the services must be related to a specific project. A lien may be denied if the materials or services are provided as part of a “running account” rather thatn for the particular improvement at issue. NDCC 35-27-10 specifically states that the “Mingling of charges for materials to be used in the construction, alteration, repair or improvement of the property of direct persons, except in the cases of joint ownership or ownership in common, defeats the rights to a lien against either or any of such persons”.Suppliers of materials for use in an improvement may be entitled to a materialmen’s lien on the land and improvement. A supplier of rental equipment to a construction project is entitled to a lien only if the rental contract is with the owner. North Dakota statutes define materials as “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 materils 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.

North Dakota does not require any notice or filing prior to the commencement of work. However, it does allow a party protected under the lien law statutes to file a verified Notice of Intention to Claim a Lien at anytime either prior to or after commencement of work. Upon the filing of a Notice of Intention to Claim a Lien, an owner may take protective actions to make certain that the noticing party is paid in order to protect his property from a lien.

A claim of lien must be filed by a claimant within ninety (90) days after the last day that materials or services were provided in fulfillment of the claimant’s contract in order to have maximum protection.

An action (lawsuit) to enforce a Mechanic’s Lien must be commenced within three (3) years after the date of recording of the verified Notice of Intention to Claim a Lien. If more than one (1) Notice of Intention is filed, a claimant should begin calculating the three (3) year period from the date of the first filing. However, this deadline can be substantially shortened if the owner, owner’s agent or contractor serves a written demand on the lien holder. If written demand is issued in accordance with the statutes, the lien holder has thirty (30) days to commence lien foreclosure action.

Yes, North Dakota requires that mandatory notice be sent to the owner, both before filing a Claim of Lien and before the filing of a lawsuit on a Mechanic’s Lien. Before filing a Mechanic’s Lien, a verified Notice of Intention to Claim a Lien must be served upon the owner and filed with the Register of Deeds of the county where the property is located at least fifteen (15) days prior to filing the Mechanic’s Lien. Before filing an enforcement action (lawsuit) on a Mechanic’s Lien, a lien holder must give written notice of his intention to file a lawsuit to enforce the Mechanic’s Lien to the record owner of the property. If the owner is served by personal service, the notice must be given at least (10) ten days before an action to enforce the lien is commenced. If personal service is not used, the owner can be notified by registered or certified mail, directed to the owner’s last known address, at least twenty (20) days before an action is commenced.

In order to be entitled to a lien, a lien claimant, including subcontractors and suppliers, must keep an itemized account, separate and apart, from all other items of account. The mingling of charges for materials to be used in the construction, alternation, repair or improvement of the property of different persons, except for the cases of joint ownership or ownership in common, defeats the right to a lien.

The last day that substantial labor or services or the last day that substantial materials were supplied is deemed the last day of furnishing so as to trigger the start of the lien filing period. However, the failure to file a Mechanic’s Lien within ninety (90) days does not defeat a lien in North Dakota except as against purchasers or encumbrances in good faith and for value whose rights accrue after the ninety (90) days and before any claim or Mechanic’s Lien is filed or against the owner to the extent of any amounts paid to a contractor after the expiration of the ninety (90) days and before the filing of a Mechanic’s Lien.

Yes, the owner of either the property or a substantial interest in the property encumbered by a Mechanic’s Lien may file an application for Release of Lien by Undertaking with the Clerk of the District Court for the county in which the lien is filed.

North Dakota law provides very broad protection to construction project participants. It is difficult to find a project participant not protected by the lien law unless there is a failure to keep and maintain an itemized account, separate and apart, from all other items of account as required by the statutes. Specifically “suppliers to suppliers” are entitled to a lien rights in North Dakota.