35-27 Construction Lien
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<![CDATA[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,<br>express or implied.2."Improve" means to build, erect, place, make, alter, remove, repair, or demolish any<br>improvement upon, connected with, or beneath the surface of any land, or excavate<br>any land, or furnish materials for any of such purposes, or dig or construct any<br>fences, wells, or drains upon such improvement, or perform any labor or services<br>upon such improvement; or perform any architectural services, construction staking,<br>engineering, land surveying, mapping, or soil testing upon or in connection with the<br>improvement; or perform any labor or services or furnish any materials in laying<br>upon the real estate or in the adjoining street or alley any pipes, wires, fences, curbs,<br>gutters, paving, sewer pipes or conduit, or sidewalks, or in grading, seeding,<br>sodding, or planting for landscaping purposes, or in equipping any such<br>improvement with fixtures or permanent apparatus.3."Improvement" means any building, structure, erection, construction, alteration,<br>repair, removal, demolition, excavation, landscaping, or any part thereof, existing,<br>built, erected, improved, placed, made, or done on real estate for its permanent<br>benefit.4."Materials" means materials or fixtures which are incorporated in the improvement<br>and those which become normal wastage in construction operations, custom or<br>specially fabricated materials for incorporation in the improvement, building<br>materials used for construction, but not remaining in the improvement, subject to<br>diminution by the salvage value of such materials, tools, appliances, or machinery,<br>excluding hand tools, used in the construction of the improvement to the extent of<br>the reasonable value for the period of actual use. The rental value shall not be<br>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<br>immediate use and benefit any building, erection, or improvement is made, having<br>the capacity to contract, including guardians of minors or other persons, and<br>including any agent, trustee, contractor, or subcontractor of such owner.6."Person" means every natural person, fiduciary, association, corporation, or limited<br>liability company.7."Subcontractor" means all persons contributing any skill, labor, or materials to the<br>improvement except such as have contracts therefor directly with the owner; and,<br>includes any person who enters into a contract with a subcontractor as above<br>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<br>agent, trustee, contractor, or subcontractor of the owner, has a lien upon the improvement and<br>upon the land on which the improvement is situated or to which the improvement may be<br>removed for the price or value of such contribution. Provided, however, that the amount of the<br>lien is only for the difference between the price paid by the owner or agent and the price or value<br>of the contribution. If the owner or agent has paid the full price or value of the contribution, no<br>lien is allowed. Provided further that if the owner or an agent of the owner has received a waiver<br>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<br>request and secure evidence of the legal description of the real estate upon which the<br>improvement is located, including the name of the title owner of the real estate. Written notice<br>that a lien will be claimed must be given to the owner of the real estate by certified mail at least<br>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<br>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<br>visible beginning of the improvement on the ground. Subject to the exception set forth in section<br>35-27-04, all such liens are preferred to any mortgage or other encumbrance not then of record,<br>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<br>improvement, a lien may not be preferred even though such mortgage is recorded after the time<br>the first item of material or labor is furnished upon the premises, or after the actual visible<br>beginning of the improvement unless the person furnishing such labor, skill, or material for such<br>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, </p>
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