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TITLE 45 LIENS, MORTGAGES AND PLEDGES
CHAPTER 5 LIENS OF MECHANICS AND MATERIALMEN
45-501 Right to Lien
45-504 Lien for Improving Lots
45-505 Land Subject to Lien
45-506 Liens Preferred Claims
45-507 Claim of Lien
45-508 Claims Against Two Buildings
45-509 Record of Lien Claims
45-510 Duration of Lien
45-511 Recovery by Contractor ¾ Deduction of Debts to Subcontractors
45-512 Judgment to Declare Priority
45-513 Joinder of Actions ¾ Filing
Fees as Costs ¾ Attorney’s
Fees
45-514 Exemption of Materials from Execution
45-515 Action to Recover Debt
45-516 Rules of Practice and Appeals
45-517 Lien for Workmen’s Compensation Security
45-518 Release of Lien on Real Property by Posting Surety
Bond ¾ Manner
45-519 Release of Lien on Real Property by Posting Surety
Bond ¾ Form of Bond
45-520 Release of Lien on Real Property by Posting Surety
Bond ¾ Petition for Release ¾ Service of Copy
of Petition
45-521 Release of Lien on Real Property by Posting Surety
Bond ¾ Hearing on Petition ¾ Contents and Effect
of Order Releasing Lien
45-522 Release of Lien on Real Property by Posting Surety
Bond ¾ Action Against Debtor and Surety ¾ Preferential
Settings
45-523 Release of Lien on Real Property by Posting Surety
Bond ¾ Motion to Enforce Liability of Surety
45-524 Release of Lien on Real Property by Posting Surety
Bond ¾ Exception to Sufficiency of Surety
IDAHO STATUTES
TITLE 45 LIENS, MORTGAGES AND PLEDGES
CHAPTER 5 LIENS OF MECHANICS AND MATERIALMEN
45-501 Right to Lien
Every person performing labor upon, or furnishing materials
to be used in the construction, alteration or repair of any
mining claim, building, wharf, bridge, ditch, dike, flume,
tunnel, fence, machinery, railroad, wagon road, aqueduct to
create hydraulic power, or any other structure, or who grades,
fills in, levels, surfaces or otherwise improves any land,
or who performs labor in any mine or mining claim, and every
professional engineer or licensed surveyor under contract
who prepares or furnishes designs, plans, plats, maps, specifications,
drawings, surveys, estimates of cost, on site observation
or supervision, or who renders any other professional service
whatsoever for which he is legally authorized to perform in
connection with any land or building development or improvement,
or to establish boundaries, has a lien upon the same for the
work or labor done or professional services or materials furnished,
whether done or furnished at the instance of the owner of
the building or other improvement or his agent; and every
contractor, subcontractor, architect, builder or any person
having charge of any mining claim, or of the construction,
alteration or repair, either in whole or in part, of any building
or other improvement, as aforesaid, shall be held to be the
agent of the owner for the purpose of this chapter: provided,
that the lessee or lessees of any mining claim shall not be
considered as the agent or agents of the owner under the provisions
of this chapter.
45-504 Lien for Improving Lots
Any person who, at the request of the owner of any lot in
any incorporated city or town, surveys, grades, fills in,
or otherwise improves the same, or the street in front of
or adjoining the same, has a lien upon such lot for his work
done or material furnished.
45-505 Land Subject to Lien
The land upon which or in connection with which any professional
services are performed or any building, improvement or structure
is constructed, together with a convenient space about the
same, or so much as may be required for the convenient use
and occupation thereof, to be determined by the court on rendering
judgment, is also subject to the lien, if, at the commencement
of the furnishing of professional services or other work or
of the furnishing of the material for the same, the land belonged
to the person who caused said professional services to be
performed or said building, improvement or structure to be
constructed, altered or repaired, but if such person owns
less than a fee simple estate in such land, then only his
interest therein is subject to such lien.
45-506 Liens Preferred Claims
The liens provided for in this chapter are preferred to any
lien, mortgage or other encumbrance, which may have attached
subsequent to the time when the building, improvement or structure
was commenced, work done, or materials or professional services
were commenced to be furnished; also to any lien, mortgage,
or other encumbrance of which the lienholder had no notice,
and which was unrecorded at the time the building, improvement
or structure was commenced, work done, or materials or professional
services were commenced to be furnished.
45-507 Claim of Lien
Any person claiming a lien pursuant to the provisions of this
chapter must, within ninety (90) days after the completion
of the labor or services or furnishing of materials, or the
cessation of the labor, services or furnishing of materials
for any cause, file for record with the county recorder for
the county in which such property or some part thereof is
situated, a claim containing a statement of his demand, after
deducting all just credits and offsets, with the name of the
owner, or reputed owner, if known, and also the name of the
person by whom he was employed or to whom he furnished the
materials, and also a description of the property to be charged
with the lien, sufficient for identification, which claim
must be verified by the oath of the claimant, his agent or
attorney, to the effect that the affiant believes the same
to be just. A true and correct copy of the claim of lien shall
be served on the owner or reputed owner of the property either
by delivering a copy thereof to the owner or reputed owner
personally or by mailing a copy thereof by certified mail
to the owner or reputed owner at his last known address. Such
delivery or mailing shall be made no later than twenty-four
(24) hours following the filing of said claim of lien.
45-508 Claims Against Two Buildings
In every case in which one (1) claim is filed against two
(2) or more buildings, mines, mining claims, or other improvements,
owned by the same person, the person filing such claim must,
at the same time, designate the amount due him on each of
said buildings, mines, mining claims, or other improvement;
otherwise the lien of such claim is postponed to other liens.
The lien of such claim does not extend beyond the amount designated
as against other creditors having liens by judgment, mortgage,
or otherwise, upon either of such buildings, or other improvements,
or upon the land upon which the same are situated.
45-509
Record of Lien Claims
The county recorder must record the claims mentioned in this
chapter in a book kept by him for that purpose, which record
must be indexed, as deeds and other conveyances are required
by law to be indexed, and for which he may receive the same
fees as are allowed by law for recording deeds or other instruments.
45-510
Duration of Lien
No lien provided for in this chapter binds any building, mining
claim, improvement or structure for a longer period than six
(6) months after the claim has been filed, unless proceedings
be commenced in a proper court within that time to enforce
such lien; or unless a payment on account is made, or extension
of credit given with expiration date thereof, and such payment
or credit and expiration date, is endorsed on the record of
the lien, then six (6) months after the date of such payment
or expiration of extension. The lien of a final judgment obtained
on any lien provided for in this chapter shall cease five
(5) years from the date the judgment becomes final, but if
such period of five (5) years has expired or will expire before
September 1, 1947, the owner of such judgment lien shall have
until September 1, 1947, within which to levy execution under
such judgment.
45-511
Recovery by Contractor ¾ Deduction of Debts to Subcontractors
The original or subcontractor shall be entitled to recover,
upon the claim filed by him, only such amount as may be due
to him according to the terms of his contract, and, if applicable,
such other amounts as may be found due to the lien claimant
by the court pursuant to section 45-522, Idaho Code, after
deducting all claims of other parties for work done and materials
furnished to him as aforesaid, of which claim of lien shall
have been filed as required by this chapter, and in all cases
where a claim shall be filed under this chapter for work done
or materials furnished to any subcontractor, he shall defend
any action brought thereupon at his own expense; and during
the pendency of such action, the person indebted to the contractor
may withhold from such contractor the amount of money for
which claim is filed; and in case of judgment upon the lien,
the person indebted in the contract shall be entitled to deduct
from any amount due or to become due by him to such contractor,
the amount of such judgment and costs; and if the amount of
such judgment and costs shall exceed the amount due from him
to such contractor, if the person indebted in the contract
shall have settled with such contractor in full, he shall
be entitled to recover back from such contractor any amount
so paid by him in excess of the contract price, and for which
such contractor was originally the party liable.
45-512
Judgment to Declare Priority
In every case in which different liens are asserted against
any property, the court in the judgment must declare the rank
of each lien or class of liens which shall be in the following
order:
1. All laborers, other than contractors or subcontractors.
2. All materialmen, other than contractors or subcontractors.
3. Subcontractors.
4. The original contractor.
5. All professional engineers and licensed surveyors.
And in case the proceeds of sale under this chapter shall
be insufficient to pay all lienholders under it:
1. The liens of all laborers, other than the original contractor
and subcontractor, shall first be paid in full, or pro rata
if the proceeds be insufficient to pay them in full.
2. The lien of materialmen, other than the original contractor
or subcontractor, shall be paid in full, or pro rata if the
proceeds be insufficient to pay them in full.
3. Out of the remainder, if any, the subcontractors shall
be paid in full, or pro rata if the remainder be insufficient
to pay them in full, and the remainder, if any, shall be paid
pro rata to the original contractor and the professional engineers
and licensed surveyors; and each claimant shall be entitled
to execution for any balance due him after such distribution;
such execution to be issued by the clerk of the court upon
demand, at the return of the sheriff or other officer making
the sale, showing such balance due.
45-513
Joinder of Actions ¾ Filing Fees as Costs ¾
Attorney’s Fees
Any number of persons claiming liens against the same property
may join in the same action, and when separate actions are
commenced the court may consolidate them. The court shall
also allow as part of the costs the moneys paid for filing
and recording the claim, and reasonable attorney’s fees.
45-514
Exemption of Materials from Execution
Whenever materials shall have been furnished for use in the
construction, alteration or repair of any buildings, or other
improvement, such materials shall not be subject to attachment,
execution or other legal process, to enforce any debt due
by the purchaser of such materials, except a debt due for
the purchase money thereof, so long as, in good faith, the
same are being applied to the construction, alteration or
repair of such building, mining claim or other improvement.
45-515
Action to Recover Debt
Nothing contained in this chapter shall be construed to impair
or affect the right of any person to whom any debt may be
due for work done or materials furnished, to maintain a personal
action to recover such debt against the person liable therefore.
45-516
Rules of Practice and Appeals
Except
as otherwise provided in this chapter, the provisions of this
code relating to civil actions, new trials and appeals are
applicable to, and constitute the rules of practice in, the
proceedings mentioned in this chapter: provided, that the
district courts shall have jurisdiction of all actions brought
under this chapter.
45-517
Lien for Workmen’s Compensation Security
The term “labor” as used in this title, shall
include the cost of workmen’s compensation and occupational
disease compensation security required by the provisions of
[sections 72-301 ¾ 72-304, Idaho Code,] and amendments
thereto, payment for which security has not been made.
45-518 Release of Lien on Real Property by
Posting Surety Bond ¾ Manner
A mechanic’s lien of record upon real property may be
released upon the posting of a surety bond in the manner provided
in sections 45-519 through 45-524, Idaho Code.
45-519 Release of Lien on Real Property by
Posting Surety Bond ¾ Form of Bond
The debtor of the lien claimant or a party in interest in
the premises subject to the lien must obtain a surety bond
executed by the debtor of the lien claimant or a party in
interest in the premises subject to the lien, as principal,
and executed by a corporation authorized to transact surety
business in this state, as surety, in substantially the following
form:
(Title of court and cause, if action has been commenced) WHEREAS,
________ (name of owner, contractor, or other person disputing
the lien) desires to give a bond for releasing the following
described real property from that certain claim of mechanic’s
lien in the sum of $________ recorded ________ 20.., in the
office of the recorder in ___________ (name of county where
the real property is situated): _______________ (legal description)
NOW, THEREFORE, the undersigned principal and surety do hereby
obligate themselves to __________ (name of claimant) the claimant
named in the mechanic’s lien, under the conditions prescribed
by sections 45-518 through 45-524, Idaho Code, inclusive,
in the sum of $______. (1-1/2 x claim), from which sum they
will pay the claimant such amount as a court of competent
jurisdiction may adjudge to have been secured by his lien,
with interest, costs and attorney’s fees. IN WITNESS
WHEREOF, the principal and surety have executed this bond
at _________ Idaho, on the _______day of ______ 20__.
______________________(Signature of Principal)
(SURETY CORPORATION)
BY ___________________(Its Attorney in Fact)
State of Idaho) _______________) ss. County of___________)
On _________,
20__, before me, the undersigned, a notary public of this
county and state, personally appeared ___________ who acknowledged
that he executed the foregoing instrument as principal for
the purposes therein mentioned and also personally appeared
______________ known (or satisfactorily proved) to me to be
the attorney in fact of the corporation that executed the
foregoing instrument and known to me to be the person who
executed that instrument on behalf of the corporation therein
named, and he acknowledged to me that that corporation executed
the foregoing instrument.
_______________________(Notary Public in and for the County
and State)
45-520 Release of Lien on Real Property by
Posting Surety Bond ¾ Petition for Release ¾
Service of Copy of Petition
(1) A petition for the release of a mechanic’s lien
by posting a surety bond must be filed in the district court
of the county wherein the property is located and shall set
forth:
(a) The title of the cause, thus: “In the matter of
the petition of ________________ (name of petitioner) for
release of mechanic’s lien of ______________ (name of
mechanic’s lien claimant) upon posting surety bond.”
(b) An allegation of the purchase of and payment of the premium
for the bond, and the dates of purchase and payment.
(c) An allegation incorporating by reference a true copy of
the bond, which copy must be attached to the petition.
(d) The name or names of the owner or reputed owners of the
land subject to the lien.
(e) A description of the real property subject to the lien,
and the instrument number of the lien as given by the recorder’s
office.
(f) A prayer for an order releasing the lien.
(2) The petitioner shall obtain an order from the district
court setting forth the time and date of the hearing on the
petition, which time and date must be at least five (5) days
after the date of the order and not more than ten (10) days
after the date of the order.
(3) A copy of the petition and a copy of the order must be
served on the lien claimant at least two (2) days before the
date set for the hearing and served in the manner provided
by law for service of summons.
45-521 Release of Lien on Real Property by
Posting Surety Bond ¾ Hearing on Petition ¾
Contents and Effect of Order Releasing Lien
(1) Upon the hearing, the court shall enter its order releasing
the mechanic’s lien upon the petitioner’s filing
in open court the original bond, and introducing into evidence
a receipt for payment of the premium.
(2) The entry of the order by the court must refer to the
property which is the subject of the lien and the lien itself,
by instrument number, and must recite that the lien is released
of record for all purposes to the same extent as if released
of record by the lienor.
(3) Upon entry of the order, the lien is released of record
in its entirety and for all purposes and the real property,
the subject of the lien, is released from the encumbrances
of the lien.
(4) There is no appeal from the entry of an order pursuant
to the provisions of this section and upon entry the order
is final for all purposes.
45-522
Release of Lien on Real Property by Posting Surety Bond ¾
Action Against Debtor and Surety ¾ Preferential Settings
(1) The lien claimant is entitled to bring an action against
the lien claimant’s debtor and to join therein the surety
on the bond. The rights of the lien claimant include and the
court may award to him in that action:
(a) The amount found due to the lien claimant by the court;
(b) The cost of preparing and filing the lien claim, including
attorney’s fees, if any;
(c) The costs of the proceedings;
(d) Attorney’s fees for representation of the lien claimant
in the proceedings; and
(e) Interest at the rate of seven percent (7%) per annum on
the amount found due to the lien claimant and from the date
found by the court that the sum was due and payable.
(2) Proceedings under subsection (1) of this section are entitled
to priority of hearing second only to criminal hearings. The
plaintiff in the action may serve upon the adverse party a
“demand for thirty (30) day setting” in the proper
form, and file the demand with the clerk of the court. Upon
filing, the clerk of the court shall, before Friday next,
vacate a case or cases as necessary and set the lien claimant’s
case for hearing, on a day or days certain, to be heard within
thirty (30) days of the filing of the “demand for thirty
(30) day setting.” Only one (1) such preferential setting
need be given by the court, unless the hearing date is vacated
without stipulation of counsel for the plaintiff in writing.
If the hearing date is vacated without that stipulation, upon
service and filing of a “demand for thirty (30) day
setting,” a new preferential setting must be given.
45-523 Release of Lien on Real Property by
Posting Surety Bond ¾ Motion to Enforce Liability of
Surety
(1) By entering into a bond given pursuant to section 45-519,
Idaho Code, the surety submits himself to the jurisdiction
of the court in which the bond is filed in the proceeding
for release of the lien, and the surety irrevocably appoints
the clerk of that court as its agent upon whom any papers
affecting its liability on the bond may be served. Its liability
may be enforced on motion without the necessity of an independent
action. The motion and such notice of motion as the court
prescribes may be served on the clerk of the court, who shall
forthwith mail copies to the surety if his address is known.
(2) The motion described in subsection (1) of this section
must not be instituted until the lapse of thirty (30) days
following the giving of notice of entry of judgment in the
action against the lien claimant’s debtor, if no notice
of appeal from the judgment is filed, nor may the motion be
instituted until the lapse of thirty (30) days following the
filing of the remittitur from the court of appeals or the
supreme court, if an appeal has been taken from the judgment.
45-524
Release of Lien on Real Property by Posting Surety Bond ¾
Exception to Sufficiency of Surety
(1) The lien claimant may, within two (2) days after the service
of a copy of the petition for release of the lien with a copy
of the bond attached thereto pursuant to section 45-520, Idaho
Code, file with the clerk of the court in the action a notice
excepting to the sufficiency of the surety on the bond, and
shall, at the same time and together with that notice, file
an affidavit setting forth the grounds and basis of the exceptions
to the surety, and shall serve a copy of the notice and a
copy of the affidavit upon the attorney or the petitioner
on the same date as the date of filing of the notice and affidavit.
A hearing must be had upon the justification of the surety
at the same time as that set for the hearing on the petition
for an order to release the lien.
(2) If the lien claimant fails to file and serve the notice
and affidavit within two (2) days after the service of the
petition for release of the lien, he shall be deemed to have
waived all objection to the justification.
45-525
GENERAL CONTRACTORS--RESIDENTIAL PROPERTY- DISCLOSURES
(1)Legislative intent. This section is intended to protect owners and purchasers
of residential real property by requiring that general contractors provide
adequate disclosure of potential liens.
(2) General contractor information. Prior to entering into any contract
in an amount exceeding two thousand dollars ($2,000) with a homeowner or
residential real property purchaser to construct, alter or repair any
improvements on residential real property, or with a residential real property
purchaser for the purchase and sale of newly constructed property, the general
contractor shall provide to the homeowner a disclosure statement setting forth
the information specified in this subsection. The statement shall contain an
acknowledgment of receipt to be executed by the homeowner or residential real
property purchaser. The general contractor shall retain proof of receipt and
shall provide a copy to the homeowner or residential real property purchaser.
The disclosure shall include the following:
(a) The homeowner or residential real property purchaser shall have the
right at the reasonable expense of the homeowner or residential real
property purchaser to require that the general contractor obtain lien waivers from any subcontractors providing services or materials to the
general contractor;
(b) The homeowner or residential real property purchaser shall have the
right to receive from the general contractor proof that the general
contractor has a general liability insurance policy including completed
operations in effect and proof that the general contractor has worker's
compensation insurance for his employees as required by Idaho law;
(c) The homeowner or residential real property purchaser shall be
informed of the opportunity to purchase an extended policy of title
insurance covering certain unfiled or unrecorded liens; and
(d) The homeowner or residential real property purchaser shall have the
right to require, at the homeowner's or residential real property
purchaser's expense, a surety bond in an amount up to the value of the
construction project.
(3) Subcontractor, materialmen and rental equipment information.
(a) A general contractor shall provide to a prospective residential real property purchaser or homeowner a written disclosure statement, which shall be signed by the general contractor listing the business names,
addresses and telephone numbers of all subcontractors, materialmen and rental equipment providers having a direct contractual relationship with the general contractor and who have supplied materials or performed work
on the residential property of a value in excess of five hundred dollars ($500). A general contractor is not required under this subsection to disclose subcontractors, materialmen or rental equipment providers not
directly hired by or directly working for the general contractor. Such information shall be provided within a reasonable time prior to:
(i) The closing on any purchase and sales agreement with a prospective residential real property purchaser; or
(ii) The final payment to the general contractor by a homeowner or residential real property purchaser for construction, alteration, or repair of any improvement of residential real property.
(b) All subcontractors, materialmen and rental equipment providers listed in the disclosure statement are authorized to disclose balances owed to the prospective real property purchasers or homeowners and to the agents of such purchasers or homeowners.
(c) The general contractor shall not be liable for any error, inaccuracy or omission of any information delivered pursuant to this section if the error, inaccuracy or omission was not within the personal knowledge of the
general contractor.
(4) Failure to disclose. Failure to provide complete disclosures as required by this section to the homeowner or prospective residential realproperty purchaser shall constitute an unlawful and deceptive act or practice
in trade or commerce under the provisions of the Idaho consumer protection act, chapter 6, title 48, Idaho Code.
(5) Definitions. For purposes of this section:
(a) "General contractor" means a person who enters into an agreement in excess of two thousand dollars ($2,000) with:
(i) A homeowner or prospective residential real property purchaser for the construction, alteration or repair of residential real property; or
(ii) A prospective residential real property purchaser for the purchase and sale of newly constructed property.
The term "general contractor" does not include subcontractors, materialmen or rental equipment providers who do not have a direct contractual relationship with the homeowner or residential real property purchaser.
(b) "Residential real property" shall include owner and nonowner occupied real property consisting of not less than one (1) nor more than four (4) dwelling units.
(6) This section shall not apply to instances in which a homeowner or the agent of the homeowner initiates the contact with the general contractor for purposes of providing repairs necessary to meet a bona fide emergency of the homeowner or to make necessary repairs to an electrical, plumbing or water system of the homeowner.
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