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1995
EDITION
CHAPTER 87 STATUTORY LIENS
CONSTRUCTION LIENS
87.001
Short Title
87.005 Definitions for ORS 87.001 to 87.060 and 87.075 to
87.093
87.010 Construction Liens; Who is Entitled to Lien
87.015 Land and Interests Therein Subject to Lien; Leaseholds
87.018 Delivery of Notices
87.021 Notice to Owners; Notice from Owner to Original Contractor;
Effect of Failure to Give Notice
87.023 Notice of Right to Lien; Form of Notice
87.025 Priority of Perfected Liens; Right to Sell Improvements
Separately from Land; Notice to Mortgagee; List of Materials
or Supplies
87.027 Right of Owner to Demand List of Services, Materials,
Equipment and Labor; Penalty for Failure to Provide List
87.030 Effect of Owner Having Knowledge of Improvement; Notice
of Nonresponsibility
87.035 Perfecting Lien; Filing Claim of Lien; Contents of
Claim
87.039 Notice of Filing Claim of Lien; Effect of Failure to
Give Notice
87.045 Completion Date of Improvement; Notice of Completion,
Abandonment or Nonabandonment; Contents of Notice
87.050 Recording
87.055 Duration of Lien; When Suit to Enforce Lien Commences
87.057 Notice of Intent to Foreclose; List of Materials Furnished
and Statement of Prices; Effect of Failure to Give Notice
87.058 Stay of Foreclosure Proceedings; Requirements; Procedure;
Duration of Stay
87.060 Foreclosure; Right to Jury Trial; Distribution of Proceeds
of Foreclosure Sale
87.070 Amount of Recovery by Contractor; Respective Rights
of Contractor and Owner
87.075 Exemption of Building Materials from Attachment by
Third Persons
87.076 Bond or Deposit of Money; Amount; Demand for Release
of Lien; Effect
87.078 Notice of Filing Bond or Depositing Money; Contents
of Notice; Effect of Failure to Give Notice
87.081 Filing Affidavit with County Officer
87.083 Foreclosure After Filing of Bond or Deposit of Money;
Effect of Filing or Deposit; Disposition of Bond or Money
87.086 Determination of Adequacy of Bond
87.088 Return of Bond or Money
87.093 Information Notice to Owner; Adoption by Construction
Contractors Board; Contents; When Notice Must Be Given; Penalty
for Failure to Provide
LIENS GENERALLY
87.142 Definitions for ORS 87.142 to 87.490, 87.705, 87.710
and 87.910
87.146 Priorities of Liens
MISCELLANEOUS
PROVISIONS
87.910 Cost of Preparing Lien Notice
87.920 Recording of Document not to Create Lien, Affect Title
or Constitute Notice Except as Authorized by Law
CHAPTER 88 FORECLOSURE OF LIENS GENERALLY
88.010 Foreclosure of Liens by Suit; Decree for Amount of
Debt
88.020 Joinder of Foreclosure Suit Involving Realty With Suit
to Quiet Title
88.030 Other Lienholders and Debtors as Defendants; Effect
of Failure to Redeem
88.040 Foreclosure Suit During and After Action for Debt
88.050 Decree Where More Than One Lien on Same Property
88.060 Enforcement of Decree
88.070 Decree Foreclosing Purchase Money Mortgage on Real
Property
88.075 When Mortgage is Considered a Purchase Money Mortgage
88.080 Sale and Redemption; Effect of Sheriff’s Deed
88.090 Decree When Debt Payable in Installments
88.100 Payment of Amount Due Before Foreclosure Sale; Decree
for Payment of Installment Not Due
88.110 Duration of Real Property Mortgage Lien; When Suit
for Foreclosure Barred
88.120 When Foreclosure Not Barred by ORS 88.110
88.710 Definitions for ORS 88.710 to 88.740
88.720 Acquisition, Administration and Disposal by State of
Property Subject to Lien Held by State
88.740 Investment of Oregon War Veterans’ Bond Sinking
Account Surplus Moneys
OREGON REVISED STATUTES
1995 EDITION
CHAPTER 87 STATUTORY LIENS
CONSTRUCTION LIENS
87.001 Short Title
ORS 87.001 to 87.060 and 87.075 to 87.093 shall be known and
may be cited as the Construction Lien Law.
87.005
Definitions for ORS 87.001 to 87.060 and 87.075 to 87.093
As used in ORS 87.001 to 87.060 and 87.075 to 87.093:
(1)
“Commencement of the improvement” means the first
actual preparation or construction upon the site or the first
delivery to the site of materials of such substantial character
as to notify interested persons that preparation or construction
upon the site has begun or is about to begin.
(2) “Construction” includes creation or making
of an improvement, and alteration, partial construction and
repairs done in and upon an improvement.
(3) “Construction agent” includes a contractor,
architect, builder or other person having charge of construction
or preparation.
(4) “Contractor” means a person who contracts
on predetermined terms to be responsible for the performance
of all or part of a job of preparation or construction in
accordance with established specifications or plans, retaining
control of means, method and manner of accomplishing the desired
result, and who provides:
(a) Labor at the site; or
(b) Materials, supplies and labor at the site.
(5) “Improvement” includes any building, wharf,
bridge, ditch, flume, reservoir, well, tunnel, fence, street,
sidewalk, machinery, aqueduct and all other structures and
superstructures, whenever it can be made applicable thereto.
(6) “Mortgagee” means a person who has a valid
subsisting mortgage of record or trust deed of record securing
a loan upon land or an improvement.
(7) “Original contractor” means a contractor who
has a contractual relationship with the owner.
(8) “Owner” means:
(a) A person who is or claims to be the owner in fee or a
lesser estate of the land on which preparation or construction
is performed; or
(b) A person who has entered into a contract for the purchase
of an interest in the land or improvement thereon sought to
be charged with a lien created under ORS 87.010; or
(c) A person to whom a valid subsisting lease on land or an
improvement is made, and who possesses an interest in the
land or improvement by reason of that lease.
(9) “Preparation” includes excavating, surveying,
landscaping, demolition and detachment of existing structures,
leveling, filling in, and other preparation of land for construction.
(10) “Site” means the land on which construction
or preparation is performed.
(11) “Subcontractor” means a contractor who has
no direct contractual relationship with the owner.
87.010
Construction Liens; Who is Entitled to Lien
(1) Any person performing labor upon, transporting or furnishing
any material to be used in, or renting equipment used in the
construction of any improvement shall have a lien upon the
improvement for the labor, transportation or material furnished
or equipment rented at the instance of the owner of the improvement
or the construction agent of the owner.
(2) Any person who engages in or rents equipment for the preparation
of a lot or parcel of land, or improves or rents equipment
for the improvement of a street or road adjoining a lot or
parcel of land at the request of the owner of the lot or parcel,
shall have a lien upon the land for work done, materials furnished
or equipment rented.
(3) A lien for rented equipment under subsection (1) or (2)
of this section shall be limited to the reasonable rental
value of the equipment notwithstanding the terms of the underlying
rental agreement.
(4) Trustees of an employee benefit plan shall have a lien
upon the improvement for the amount of contributions, due
to labor performed on that improvement, required to be paid
by agreement or otherwise into a fund of the employee benefit
plan.
(5) An architect, landscape architect, land surveyor or registered
engineer who, at the request of the owner or an agent of the
owner, prepares plans, drawings or specifications that are
intended for use in or to facilitate the construction of an
improvement or who supervises the construction shall have
a lien upon the land and structures necessary for the use
of the plans, drawings or specifications so provided or supervision
performed.
(6) A landscape architect, land surveyor or other person who
prepares plans, drawings, surveys or specifications that are
used for the landscaping or preparation of a lot or parcel
of land or who supervises the landscaping or preparation shall
have a lien upon the land for the plans, drawings, surveys
or specifications used or supervision performed.
87.015 Land and Interests Therein Subject
to Lien; Leaseholds
(1) The site together with the land that may be required for
the convenient use and occupation of the improvement constructed
on the site, to be determined by the court at the time of
the foreclosure of the lien, shall also be subject to the
liens created under ORS 87.010 (1), (4) and (5) if, at the
time of the commencement of the improvement, the person who
caused the improvement to be constructed was the owner of
that site and land. If the person owned less than a fee-simple
estate in the site and land, then only the interest of the
person therein shall be subject to the lien.
(2) If a lien created under ORS 87.010 (1), (4) and (5) is
claimed against a unit as defined in ORS 100.005 to 100.910,
the Oregon Condominium Act, the common elements appertaining
to that unit are also subject to the lien.
(3) When the interest of the person who caused the improvement
to be constructed is a leasehold interest, and that person
has forfeited the rights of the person thereto, the purchaser
of the improvement and leasehold term at any sale under the
provisions of ORS 87.001 to 87.060 and 87.075 to 87.093, is
deemed to be the assignee of the leasehold term, and may pay
the lessor all arrears of rent or other money and costs due
under the lease. If the lessor regains possession of the property,
or obtains judgment for the possession thereof prior to the
commencement of construction of the improvement, the purchaser
may remove the improvement within 30 days after the purchaser
purchases it, and the owner of the land shall receive the
rent due the owner, payable out of the proceeds of the sale,
according to the terms of the lease, down to the time of removal.
87.018 Delivery of Notices
All notices required under ORS 87.001 to 87.060 and 87.075
to 87.093 shall be in writing and delivered in person or delivered
by registered or certified mail except for the “Information
Notice to Owner” described in ORS 87.093 which may also
be proved by a United States Postal Service certificate of
mailing.
[Note: 87.018 was enacted into law by the Legislative Assembly
but was not added to or made a part of 87.005 to 87.075 by
legislative action. See Preface to Oregon Revised Statutes
for further explanation.]
87.021 Notice to Owners; Notice from
Owner to Original Contractor; Effect of Failure to Give Notice
(1) Except when material, equipment, services or labor described
in ORS 87.010 (1) to (3), (5) and (6) is furnished at the
request of the owner, a person furnishing any materials, equipment,
services or labor described in ORS 87.010 (1) to (3), (5)
and (6) for which a lien may be perfected under ORS 87.035
shall give a notice of right to a lien to the owner of the
site. The notice of right to a lien may be given at any time
during the progress of the improvement, but the notice only
protects the right to perfect a lien for materials, equipment
and labor or services provided after a date which is eight
days, not including Saturdays, Sundays and other holidays
as defined in ORS 187.010, before the notice is delivered
or mailed. However, no lien is created under ORS 87.010 (5)
or (6) for any services provided for an owner-occupied residence
at the request of an agent of the owner.
(2) The notice required by subsection (1) of this section
shall be substantially in the form set forth in ORS 87.023.
(3)(a) Except as provided in paragraph (b) of this subsection,
a lien created under ORS 87.010 (1) to (3), (5) or (6) may
be perfected under ORS 87.035 only to the extent that the
notice required by subsection (1) of this section is given.
(b) A person who performs labor upon a commercial improvement
or provides labor and material for a commercial improvement
or who rents equipment used in the construction of a commercial
improvement need not give the notice required by subsection
(1) of this section in order to perfect a lien created under
ORS 87.010. As used in this paragraph:
(A) “Commercial improvement” means any structure
or building not used or intended to be used as a residential
building, or other improvements to a site on which such a
structure or building is to be located.
(B) “Residential building” means a building or
structure that is or will be occupied by the owner as a residence
and that contains not more than four units capable of being
used as residences or homes.
(4) Unless otherwise agreed or the lien claimant who is required
to give the notice under subsection (1) of this section is
in privity with the original contractor, when a provision
in an agreement for the construction of a commercial improvement
requires the original contractor to hold an owner harmless
or to indemnify an owner for a lien created under ORS 87.010
and perfected under ORS 87.035, that provision is not enforceable
as to any lien which requires that a notice under this section
be given to the owner unless a copy of the notice is delivered
pursuant to ORS 87.018 to the original contractor not later
than 10 days after its receipt by the owner.
87.023
Notice of Right to Lien; Form of Notice
The notice of right to a lien required under ORS 87.021 shall
include, but not be limited to, the following information
and shall be substantially in the following form:
NOTICE OF RIGHT TO A LIEN.
WARNING: READ THIS NOTICE.
PROTECT YOURSELF FROM PAYING ANY CONTRACTOR OR SUPPLIER TWICE
FOR THE SAME SERVICE.
To:_________ Date of mailing: _____
Owner_______________________________
Owner’s address
This is to inform you that ____________ has begun to provide
____________ (description of materials, equipment, labor or
services) ordered by ____________ for improvements to property
you own. The property is located at _________________.
A lien may be claimed for all materials, equipment, labor
and services furnished after a date that is eight days, not
including Saturdays, Sundays and other holidays, as defined
in ORS 187.010, before this notice was mailed to you.
Even if you or your mortgage lender have made full payment
to the contractor who ordered these materials or services,
your property may still be subject to a lien unless the supplier
providing this notice is paid.
THIS IS NOT A LIEN. It is a notice sent to you for your protection
in compliance with the construction lien laws of the State
of Oregon.
This notice has been sent to you by:
NAME: ____________________________
ADDRESS: _________________________
TELEPHONE: ______________________
IF YOU HAVE ANY QUESTIONS ABOUT THIS NOTICE, FEEL FREE TO
CALL US.
IMPORTANT INFORMATION ON REVERSE SIDE
IMPORTANT INFORMATIONFOR YOUR PROTECTION
Under Oregon’s laws, those who work on your property
or provide labor, equipment, services or materials and are
not paid have a right to enforce their claim for payment against
your property. This claim is known as a construction lien.
If your contractor fails to pay subcontractors, material suppliers,
rental equipment suppliers, service providers or laborers
or neglects to make other legally required payments, the people
who are owed money can look to your property for payment,
even if you have paid your contractor in full. The law states
that all people hired by a contractor to provide you with
materials, equipment, labor or services must give you a notice
of right to a lien to let you know what they have provided.
WAYS TO PROTECT YOURSELF ARE:
- RECOGNIZE that this notice of right to a lien may result
in a lien against your property unless all those supplying
a notice of right to a lien have been paid.
- LEARN more about the lien laws and the meaning of this notice
by contacting the Construction Contractors Board, an attorney
or the firm sending this notice.
- ASK for a statement of the labor, equipment, services or
materials provided to your property from each party that sends
you a notice of right to a lien.
- WHEN PAYING your contractor for materials, equipment, labor
or services, you may make checks payable jointly to the contractor
and the firm furnishing materials, equipment, labor or services
for which you have received a notice of right to a lien.
- OR use one of the methods suggested by the “Information
Notice to Owners.” If you have not received such a notice,
contact the Construction Contractors Board.
- GET EVIDENCE that all firms from whom you have received
a notice of right to a lien have been paid or have waived
the right to claim a lien against your property.
- CONSULT an attorney, a professional escrow company or your
mortgage lender.
87.025 Priority of Perfected Liens;
Right to Sell Improvements Separately from Land; Notice to
Mortgagee; List of Materials or Supplies
(1) A lien created under ORS 87.010 (2) or (6) and perfected
under ORS 87.035 upon any lot or parcel of land shall be preferred
to any lien, mortgage or other encumbrance which attached
to the land after or was unrecorded at the time of commencement
of the improvement
(2) Except as provided in subsections (3) and (6) of this
section, a lien created under ORS 87.010 (1), (4) or (5) and
perfected under ORS 87.035 upon any improvement shall be preferred
to all prior liens, mortgages or other encumbrances upon the
land upon which the improvement was constructed. To enforce
such lien the improvement may be sold separately from the
land; and the purchaser may remove the improvement within
a reasonable time thereafter, not to exceed 30 days, upon
the payment to the owner of the land of a reasonable rent
for its use from the date of its purchase to the time of removal.
If such removal is prevented by legal proceedings, the 30
days shall not begin to run until the final determination
of such proceedings in the court of first resort or the appellate
court if appeal is taken.
(3) No lien for materials or supplies shall have priority
over any recorded mortgage or trust deed on either the land
or improvement unless the person furnishing the material or
supplies, not later than eight days, not including Saturdays,
Sundays and other holidays as defined in ORS 187.010, after
the date of delivery of material or supplies for which a lien
may be claimed delivers to the mortgagee either a copy of
the notice given to the owner under ORS 87.021 to protect
the right to claim a lien on the material or supplies or a
notice in any form that provides substantially the same information
as the form set forth in ORS 87.023.
(4) A mortgagee who has received notice of delivery of materials
or supplies in accordance with the provisions of subsection
(3) of this section, may demand a list of those materials
or supplies including a statement of the amount due by reason
of delivery thereof. The list of materials or supplies shall
be delivered to the mortgagee within 15 days, not including
Saturdays, Sundays and other holidays as defined in ORS 187.010,
of receipt of demand, as evidenced by a receipt or a receipt
of delivery of a registered or certified letter containing
the demand. Failure to furnish the list or the amount due
by the person giving notice of delivery of the materials or
supplies shall constitute a waiver of the preference provided
in subsections (1) and (2) of this section.
(5) Upon payment and acceptance of the amount due to the supplier
of materials or supplies, and upon demand of the person making
payment, the supplier shall execute a waiver of all lien rights
as to materials or supplies for which payment has been made.
(6) Unless the mortgage or trust deed is given to secure a
loan made to finance the alteration or repair, a lien created
under ORS 87.010 and perfected under ORS 87.035 for the alteration
and repair of an improvement commenced and made subsequent
to the date of record of a duly executed and recorded mortgage
or trust deed on that improvement or on the site shall not
take precedence over the mortgage or trust deed.
(7) The perfection of a lien under ORS 87.035 relates to the
date of commencement of the improvement as defined in ORS
87.005. Except as provided in subsection (3) of this section,
the date of creation of the lien under ORS 87.010 and the
date of perfection of the lien under ORS 87.035 do not affect
the priorities under this section, the equal priority of perfected
lien claimants, or the distribution of proceeds to perfected
lien claimants under ORS 87.060 (6).
87.027 Right of Owner to Demand List
of Services, Materials, Equipment and Labor; Penalty for Failure
to Provide List
An owner who receives a notice of right to a lien in accordance
with the provisions of ORS 87.021 may demand, in writing,
from the person providing materials, equipment, services or
labor a list of materials or equipment or description of labor
or services supplied or a statement of the contractual basis
for supplying the materials, equipment, services or labor,
including the percentage of the contract completed, and the
charge therefore to the date of the demand. The supplier’s
statement shall be delivered to the owner within 15 days,
not including Saturdays, Sundays and other holidays as defined
in ORS 187.010, of receipt of the owner’s written demand,
as evidenced by a receipt or a receipt of delivery of a certified
or registered letter containing the demand. Failure of the
supplier to furnish the information requested constitutes
a loss of attorney fees and costs otherwise allowable in a
suit to foreclose a lien.
87.030
Effect of Owner Having Knowledge of Improvement; Notice of
Nonresponsibility
Every improvement except an improvement made by a person other
than the landowner in drilling or boring for oil or gas, constructed
upon lands with the knowledge of the owner shall be deemed
constructed at the instance of the owner, and the interest
owned shall be subject to any lien perfected pursuant to the
provisions of ORS 87.001 to 87.060 and 87.075 to 87.093, unless
the owner shall, within three days after the owner obtains
knowledge of the construction, give notice that the owner
will not be responsible for the same by posting a notice in
writing to that effect in some conspicuous place upon the
land or the improvement situated thereon.
87.035
Perfecting Lien; Filing Claim of Lien; Contents of Claim
(1) Every person claiming a lien created under ORS 87.010
(1) or (2) shall perfect the lien not later than 75 days after
the person has ceased to provide labor, rent equipment or
furnish materials or 75 days after completion of construction,
whichever is earlier. Every other person claiming a lien created
under ORS 87.010 shall perfect the lien not later than 75
days after the completion of construction. All liens claimed
shall be perfected as provided by subsections (2) to (4) of
this section.
(2) A lien created under ORS 87.010 shall be perfected by
filing a claim of lien with the recording officer of the county
or counties in which the improvement, or some part thereof,
is situated.
(3) A claim of lien shall contain:
(a) A true statement of demand, after deducting all just credits
and offsets;
(b) The name of the owner, or reputed owner, if known;
(c) The name of the person by whom the claimant was employed
or to whom the claimant furnished the materials or rented
the equipment or by whom contributions are owed; and
(d) A description of the property to be charged with the lien
sufficient for identification, including the address if known.
(4) The claim of lien shall be verified by the oath of the
person filing or of some other person having knowledge of
the facts, subject to the criminal penalties for false swearing
provided under ORS 162.075.
87.039 Notice of Filing Claim of Lien;
Effect of Failure to Give Notice
(1) A person filing a claim of lien pursuant to ORS 87.035
shall mail to the owner and to the mortgagee a notice in writing
that the claim has been filed. A copy of the claim of lien
shall be attached to the notice. The notice shall be mailed
not later than 20 days after the date of filing. Notice mailed
to the owner who received the notice of right to a lien as
provided by ORS 87.021 shall be deemed in compliance with
the requirement of this subsection, unless the person giving
notice has actual knowledge of changed ownership. Notice mailed
by any person to the mortgagee who received the notice required
under ORS 87.025 shall be deemed in compliance with this subsection
unless the person giving the notice has actual knowledge of
a change of mortgagee.
(2) No costs, disbursements or attorney fees otherwise allowable
as provided by ORS 87.060 shall be allowed to any party failing
to comply with subsection (1) of this section.
[Note: 87.039 was enacted into law by the Legislative Assembly
but was not added to or made a part of 87.005 to 87.075 by
legislative action. See Preface to Oregon Revised Statutes
for further explanation.]
87.045
Completion Date of Improvement; Notice of Completion, Abandonment
or Nonabandonment; Contents of Notice
(1) The completion of construction of an improvement shall
occur when:
(a) The improvement is substantially complete; or
(b) A completion notice is posted and recorded as provided
by subsections (2) and (3) of this section; or
(c) The improvement is abandoned as provided by subsection
(5) of this section.
(2) When all original contractors employed on the construction
of an improvement have substantially performed their contracts,
any original contractor, the owner or mortgagee, or an agent
of any of them may post and record a completion notice. The
completion notice shall state in substance the following:
Notice hereby is given that the building, structure or other
improvement on the following described premises, (insert the
legal description of the property including the street address,
if known) has been completed.
All persons claiming a lien upon the same under the Construction
Lien Law hereby are notified to file a claim of lien as required
by ORS 87.035.
Dated ______, 20__
___________________________
Original Contractor, Owner or Mortgagee
P. O. Address: _____________________
(3) Any notice provided for in this section shall be posted
on the date it bears in some conspicuous place upon the land
or upon the improvement situated thereon. Within five days
from the date of posting the notice, the party posting it
or the agent of the party shall record with the recording
officer of the county in which the property, or some part
thereof, is situated, a copy of the notice, together with
an affidavit indorsed thereon or attached thereto, made by
the person posting the notice, stating the date, place and
manner of posting the notice. The recording officer shall
indorse upon the notice the date of the filing thereof and
record and index the notice in the Construction Lien Book
as required by ORS 87.050.
(4) Anyone claiming a lien created under ORS 87.010 on the
premises described in a completion or abandonment notice for
labor or services performed and materials or equipment used
prior to the date of the notice shall perfect the lien pursuant
to ORS 87.035.
(5) Except as provided in subsection (6) of this section,
an improvement is abandoned:
(a) On the 75th day after work on the construction of the
improvement ceases; or
(b) When the owner or mortgagee of the improvement or an agent
of either posts and records an abandonment notice in writing
signed by either the owner or the mortgagee.
(6) When work on the construction of an improvement ceases,
if the owner or mortgagee of the improvement intends to resume
construction and does not want abandonment to occur, the owner
or mortgagee or an agent of either shall post and record a
nonabandonment notice in writing signed by either the owner
or mortgagee. The notice of nonabandonment shall be posted
and recorded not later than the 74th day after work on the
construction ceases. The notice of nonabandonment may be renewed
at intervals of 150 days by rerecording the notice.
(7) The notices of abandonment or nonabandonment described
in subsections (5) and (6) of this section shall state in
substance:
(a) That the improvement is either abandoned or not abandoned.
(b) The legal description of the property, including the street
address if known, on which the improvement is located.
(c) In the case of an abandonment notice, that all persons
claiming a lien on the improvement should file a claim of
lien pursuant to ORS 87.035.
(d) In the case of a nonabandonment notice, the reasons for
the delay in construction.
(e) The date of the notice.
(f) The address of the person who signs the notice.
87.050
Recording
The recording officer of each county shall record all notices
and claims of lien required to be filed by the provisions
of ORS 87.001 to 87.060 and 87.075 to 87.093 in a book kept
for that purpose, and titled “Construction Lien Book.”
The notices and claims recorded in the Construction Lien Book
shall be indexed as deeds and other conveyances are required
by law to be indexed and shall constitute a public record
of the county.
87.055
Duration of Lien; When Suit to Enforce Lien Commences
No lien created under ORS 87.010 shall bind any improvement
for a longer period than 120 days after the claim of lien
is filed unless suit is brought in a proper court within that
time to enforce the lien, or if extended payment is provided
and the terms thereof are stated in the claim of lien, then
120 days after the expiration of such extended payment, but
no lien shall be continued in force for a longer time than
two years from the time the claim of lien is filed under ORS
87.035 by any agreement to extend payment. For purposes of
this section:
(1) Subject to subsection (2) of this section, a suit to enforce
the lien shall be deemed commenced as provided in ORS 12.020.
(2) With regard to other parties who are construction lien
claimants under ORS 87.035, a suit to enforce the lien shall
be deemed to commence when the complaint is filed, whether
or not summons or service with regard to such parties is completed
within the time required by ORS 12.020.
87.057 Notice of Intent to Foreclose;
List of Materials Furnished and Statement of Prices; Effect
of Failure to Give Notice
(1) A person intending to foreclose a lien shall deliver to
the owner of the property upon which the lien is claimed and
to the mortgagee a notice in writing not later than 10 days
prior to commencement of the suit stating that such person,
or others, intends to commence suit to foreclose the lien.
Notice delivered to the mortgagee who received the notice
required by ORS 87.025 shall be deemed in compliance with
this subsection, unless the person giving notice has actual
knowledge of a change of mortgagee.
(2) Where a notice of intent to foreclose a lien has been
given as provided by subsection (1) of this section, the sender
of the notice upon demand of the owner shall furnish to the
owner within five days after the demand a list of the materials
and supplies with the charge therefore, or a statement of
a contractual basis for the owner’s obligation, for
which a claim will be made in the suit to foreclose.
(3) A plaintiff or cross-complainant seeking to foreclose
a lien in a suit to foreclose shall plead and prove compliance
with subsections (1) and (2) of this section. No costs, disbursements
or attorney fees otherwise allowable as provided by ORS 87.060
shall be allowed to any party failing to comply with the provisions
of this section.
[Note: 87.057 was enacted into law by the Legislative Assembly
but was not added to or made a part of 87.005 to 87.075 by
legislative action. See Preface to Oregon Revised Statutes
for further explanation.]
87.058 Stay of Foreclosure Proceedings;
Requirements; Procedure; Duration of Stay
(1) As used in this section:
(a) “Contractor” has the meaning given that term
in ORS 701.005.
(b) “Board” means the Construction Contractors
Board established in ORS 701.205.
(c) “Structure” means a residence, duplex or multiunit
residential building.
(2) When a suit to enforce a lien perfected under ORS 87.035
is filed and the owner of the structure subject to that lien
files a claim with the board under ORS 701.145 against a contractor
who performed work that is subject to ORS chapter 701 on the
structure, the owner may obtain a stay of proceedings on the
suit to enforce the lien if:
(a) The owner already has paid a contractor for that contractor’s
work that is subject to this chapter on the structure;
(b) The person suing to enforce the lien perfected under ORS
87.035:
(A) Performed work that is subject to ORS chapter 701 on the
structure for the contractor who has been paid by the owner;
(B) Furnished labor, services or materials or rented or supplied
equipment used on the structure to the contractor who has
been paid by the owner; or
(C) Otherwise acquired the lien as a result of a contribution
toward completion of the structure for which the contractor
has been paid by the owner; and
(c) The continued existence of the lien on which the suit
is pending is attributable to the failure of the contractor
who has been paid by the owner to pay the person suing for
that person’s contribution toward completion of the
structure.
(3) The owner may petition for the stay of proceedings described
in subsection (2) of this section by filing the following
papers in the circuit court in which the suit on the lien
is pending:
(a) A certified copy of the claim filed with the board under
ORS 701.145; and
(b) An affidavit signed by the owner that contains:
(A) A description of the structure;
(B) The street address of the structure;
(C) A statement that the structure is the structure upon which
the suit to enforce the lien is pending; and
(D) A statement that the petitioner is the owner of the structure.
(4) Upon receipt of a complete petition described in subsection
(3) of this section, the circuit court shall stay proceedings
on the suit to enforce the lien.
(5) After the board has adjudicated or otherwise completely
processed the claim against the contractor’s bond or
deposit, the circuit court shall dissolve the stay ordered
under subsection (4) of this section.
87.060 Foreclosure; Right to Jury Trial;
Distribution of Proceeds of Foreclosure Sale
(1) A suit to enforce a lien perfected under
ORS 87.035 shall be brought in circuit court, and the pleadings,
process, practice and other proceedings shall be the same
as in other cases.
(2) In a suit to enforce a lien perfected under ORS 87.035,
evidence of the actual costs of the labor, equipment, services
and material provided by the lien claimant establishes a rebuttable
presumption that those costs are the reasonable value of that
labor, equipment, services and material.
(3) In a suit to enforce a lien perfected under ORS 87.035,
the court shall allow or disallow the lien. If the lien is
allowed, the court shall proceed with the foreclosure of the
lien and resolve all other pleaded issues. If the lien is
disallowed, and a party has made a demand for a jury trial
as provided for in subsection (4) of this section, the court
shall impanel a jury to decide any issues triable of right
by a jury. All other issues in the suit shall be tried by
the court.
(4) A party may demand a trial by jury of any issue triable
of right by a jury after the lien is disallowed, if that party
serves a demand therefore in writing upon the other parties
at any time prior to commencement of the trial to foreclose
the lien. The demand shall be filed with the court. The failure
of a party to serve a demand as required by this subsection
shall constitute a waiver by the party of trial by jury. A
demand for trial by jury made as provided in this subsection
may not be withdrawn without the consent of the parties.
(5) When notice of intent to foreclose the lien has been given,
pleaded and proven as provided for in ORS 87.057, the court,
upon entering judgment for the lien claimant, shall allow
as part of the costs all moneys paid for the filing or recording
of the lien and all moneys paid for title reports required
for preparing and foreclosing the lien. In a suit to enforce
a lien perfected under ORS 87.035 the court shall allow a
reasonable amount as attorney fees at trial and on appeal
to the party who prevails on the issues of the validity and
foreclosure of the lien.
(6) In case the proceeds of any sale under ORS 87.001 to 87.060
and 87.075 to 87.093 are insufficient to pay all lienholders
claiming under such statutes, the liens of all persons shall
be paid pro rata. Each claimant is entitled to execution for
any balance due the claimant after the distribution of the
proceeds, and that execution shall be issued by the clerk
of the court, upon demand, after the return of the sheriff
or other officer making the sale showing the balance due.
(7) All suits to enforce any lien perfected under ORS 87.035
shall have preference on the calendar of the court over every
civil suit, except suits to which the state is a party, and
shall be tried by the court without unnecessary delay. In
such a suit, all persons personally liable, and all lienholders
whose claims have been filed for record pursuant to ORS 87.035,
shall, and all other persons interested in the matter in controversy,
or in the property sought to be charged with the lien, may
be made parties; but persons not made parties are not bound
by the proceedings. The proceedings upon the foreclosure of
the liens perfected under ORS 87.035 shall, as nearly as possible,
conform to the proceedings of a foreclosure of a mortgage
lien upon real property.
87.070 Amount of Recovery by Contractor;
Respective Rights of Contractor and Owner
Any contractor may recover, upon a lien perfected by the contractor,
only the amount due to the contractor according to the terms
of the contract, after deducting all claims of other parties
for work done and materials furnished for which a lien is
perfected under ORS 87.035. Where a claim of lien is filed
pursuant to ORS 87.035 for work done or material or equipment
furnished to any contractor, the contractor shall defend any
action brought thereupon at the expense of the contractor,
and during the pendency of such action the owner may withhold
from the contractor the amount of money for which such claim
of lien is filed. In case of judgment against the owner or
the property of the owner upon the lien, the owner may deduct
from any amount due or to become due by the owner to the contractor
the amount of such judgment and costs; and if the amount of
the judgment and costs exceeds the amount due by the owner
to the contractor, or if the owner has settled with the contractors
in full, the owner may recover back from the contractor any
amount so paid in excess of the contract price, and for which
the contractor was originally the party liable.
87.075 Exemption of Building Materials from Attachment by
Third Persons
When a person furnishes or procures materials for use in the
construction of an improvement, those materials are not subject
to attachment, execution or other legal process to enforce
any debt due by the purchaser of the materials, except a debt
due for the purchase money thereof, so long as in good faith
the materials are about to be applied to the construction
of the improvement.
87.076 Bond or Deposit of Money; Amount;
Demand for Release of Lien; Effect
(1) The owner of an improvement or land against which a lien
perfected under ORS 87.035 is claimed, or any other interested
person, may file with the recording officer of the county
in whose office the claim of lien is filed a bond executed
by a corporation authorized to issue surety bonds in the State
of Oregon to the effect that the owner of the improvement
or land against which the lien is claimed shall pay the amount
of the claim and all costs and attorney fees which are awarded
against the improvement or land on account of the lien. The
bond shall be in an amount not less than 150 percent of the
amount claimed under the lien, or in the amount of $1,000,
whichever is greater.
(2)(a) In lieu of the surety bond provided for in subsection
(1) of this section, the owner of an improvement or land against
which a lien perfected under ORS 87.035 is claimed, or any
other interested person, may deposit with the treasurer of
the county in which the claim of lien is filed a sum of money
or its equivalent equal in value to 150 percent of the amount
claimed under the lien, or in the amount of $1,000, whichever
is greater.
(b) The court in which any proceeding to foreclose the lien
may be brought may, upon notice and upon motion by a person
who makes a deposit under paragraph (a) of this subsection,
order the money invested in such manner as the court may direct.
A person who makes a deposit under paragraph (a) of this subsection
shall be entitled to any income from the investments and the
treasurer of the county shall pay the income when received
to the depositor without order.
(3) A bond or money may be filed or deposited under subsection
(1) or (2) of this section at any time after the filing of
the claim of lien under ORS 87.035.
(4)(a) Any person entitled to post a bond under subsection
(1) of this section or a cash deposit under subsection (2)
of this section may deliver pursuant to ORS 87.018 a written
demand that a lien perfected under ORS 87.035 be released
and a notice that if it is not released the party making the
demand may be entitled to recover the actual costs incurred
by the party making the demand in complying with this section,
ORS 87.078 and 87.081 or the sum of $500, whichever is greater.
If the lien is not released within 10 days after delivery
of the demand and notice and the lien claimant or an assignor
of the lien claimant does not bring a suit to foreclose the
lien within the time provided in ORS 87.055, and if the person
making the demand has complied with this section, ORS 87.078
and 87.081, then the person failing to release and foreclose
the lien shall be liable to the person making the demand for
the actual costs incurred by the person making the demand
in complying with this section, ORS 87.078 and 87.081 or the
sum of $500, whichever is greater, in addition to any other
remedy provided by law or equity.
(b) In any action to recover damages under this subsection
in which the plaintiff prevails, there shall be allowed to
the plaintiff, at trial and on appeal, a reasonable amount
for attorney fees to be fixed by the court for prosecution
of the action, if the court finds that a written demand for
payment of the claim was made on the defendant not less than
20 days before commencement of the action. However, attorney
fees shall not be allowed to the plaintiff, but shall be allowed
to the defendant, if the court finds that the defendant tendered
to the plaintiff prior to commencement of the action an amount
not less than the damages awarded to the plaintiff.
(c) If a lien claimant or an assignor of the lien claimant
is served with a demand under paragraph (a) of this subsection
and is a prevailing party in the suit to foreclose the lien,
then in addition to such other costs and attorney fees to
which the lien claimant or the assignor of the lien claimant
is entitled, the court shall allow the actual costs incurred
in addressing the demand or the sum of $500, whichever is
greater.
87.078
Notice of Filing Bond or Depositing Money; Contents of Notice;
Effect of Failure to Give Notice
(1) A person who files a bond or deposits money under ORS
87.076 shall cause to be served upon the lien claimant a notice
of the filing or deposit and, if a bond, a copy thereof, not
later than 20 days after the filing or deposit. The notice
shall state the location and time of the filing or deposit.
(2) If a person does not notify the lien claimant as required
by subsection (1) of this section, the filing of the bond
or the deposit of money is of no effect and the provisions
of ORS 87.083 shall not apply in a suit to foreclose the lien
for which the filing or deposit is made.
87.081 Filing Affidavit With County
Officer
(1) When a person files a bond with the recording officer
of the county under ORS 87.076 and serves notice of the filing
upon the lien claimant, the person shall file with the same
recording officer an affidavit stating that such notice was
served.
(2) When a person deposits money with the treasurer of a county
under ORS 87.076 and serves notice of the deposit upon the
lien claimant, the person shall file with the recording officer
of the same county an affidavit stating that the deposit was
made and notice served.
87.083 Foreclosure After Filing of
Bond or Deposit of Money; Effect of Filing or Deposit; Disposition
of Bond or Money
(1) Any suit to foreclose a lien pursuant to ORS 87.060 which
is commenced or pending after the filing of a bond or deposit
of money under ORS 87.076 shall proceed as if no filing or
deposit had been made except that the lien shall attach to
the bond or money upon the filing or deposit and the service
of notice thereof upon the lien claimant. The property described
in the claim of lien shall thereafter be entirely free of
the lien and shall in no way be involved in subsequent proceedings.
(2) When a bond is filed or money is deposited, if, in a suit
to enforce the lien for which the filing or deposit is made,
the court shall allow the lien, the lien shall be satisfied
out of the bond or money. The court shall include as part
of its judgment an order for the return to the person who
deposited the money of any amount remaining after the lien
is satisfied.
(3) When a bond is filed or money is deposited, if, in a suit
to enforce the lien for which the filing or deposit is made,
the court shall disallow the lien, the court shall include
as part of its judgment an order for the return of the bond
or money to the person who filed the bond or money.
87.086 Determination of Adequacy of
Bond
If a lien claimant considers the bond filed with a recording
officer of a county inadequate to protect the claim of the
lien claimant for some reason other than the amount of the
bond, the lien claimant shall, within 10 days of receipt of
the notice of filing, petition the court in which the suit
to foreclose the lien may be brought for a determination of
the adequacy of the bond. The lien claimant shall state in
detail the reasons for the inadequacy. Not later than two
days after the filing of the petition with the court, the
lien claimant shall send a notice of the filing and a copy
of the petition by registered or certified mail to the person
who filed the bond. After a hearing, if the court determines
that the bond is inadequate for one or more of the reasons
stated by the lien claimant, the court shall order such action
as shall make the bond adequate to protect the claim of lien.
87.088 Return of Bond or Money
The recording officer or treasurer of a county in whose office
a bond or money is filed or deposited under ORS 87.076 shall
return it to the person who made the filing or deposit when:
(1) A suit to foreclose the lien is not commenced within the
time specified by ORS 87.055; or
(2) The person who filed the bond or deposited the money presents
a certified copy of a court’s order for the return of
the bond or all or some of the money to that person; or
(3) The person who filed the bond or deposited the money presents
a written release of lien signed by the lien claimant.
87.093 Information Notice to Owner;
Adoption by Construction Contractors Board; Contents; When
Notice Must Be Given; Penalty for Failure to Provide
(1) The Construction Contractors Board shall adopt by rule
a form entitled “Information Notice to Owner”
which shall describe, in nontechnical language and in a clear
and coherent manner using words in their common and everyday
meanings, the pertinent provisions of the Construction Lien
Law of this state and the rights and responsibilities of an
owner of property and an original contractor under that law.
The rights and responsibilities described in the form shall
include, but not be limited to:
(a) Methods by which an owner may avoid multiple payment for
the same materials and labor;
(b) The right to file a claim against a registered contractor
with the Construction Contractors Board and, when appropriate,
to be reimbursed from the contractor’s bond filed under
ORS chapter 701; and
(c) The right to receive, upon written request therefore,
a statement of the reasonable value of materials, equipment,
services or labor provided from the persons providing the
materials, equipment, services or labor at the request of
an original contractor and who have also provided notices
of right to a lien.
(2)(a) Each original contractor shall provide a copy of the
“ Information Notice to Owner” adopted by the
Construction Contractors Board under this section to:
(A) The first purchaser of residential property constructed
by the contractor and sold before or within the 75-day period
immediately following the completion of construction; and
(B) The owner or an agent of the owner, other than an original
contractor, at the time of signing a written residential construction
or improvement contract with the owner.
(b) When the residential construction or improvement contract
is an oral contract, the original contractor shall mail or
otherwise deliver the “Information Notice to Owner”
not later than five days after the contract is made.
(3) This section applies only to a residential construction
or improvement contract for which the aggregate contract price
exceeds $1,000. If the price of a home improvement contract
was initially less than $1,000, but during the course of the
performance of the contract exceeds that amount, the original
contractor shall mail or otherwise deliver the “Information
Notice to Owner” not later than five days after the
contractor knows or should reasonably know that the contract
price will exceed $1,000.
(4) An “Information Notice to Owner” need not
be sent when the owner is a contractor registered with the
Construction Contractors Board under ORS chapter 701.
(5) Notwithstanding ORS 87.010, if an original contractor
does not provide an owner or agent with an “Information
Notice to Owner” as required under subsections (2) and
(3) of this section, the original contractor may not claim
any lien created under ORS 87.010 upon any improvement, lot
or parcel of land of the owner for labor, services or materials
supplied under the residential construction or improvement
contract for which the “Information Notice to Owner”
was not provided.
(6) If an original contractor does not provide an owner or
agent with an “Information Notice to Owner” as
required under subsection (2) of this section, the Construction
Contractors Board may suspend the certificate of registration
of the original contractor for any period of time that the
board considers appropriate or impose a civil penalty of not
more than $5,000 upon the original contractor as provided
in ORS 701.992.
(7) As used in this section:
(a) “Residential construction or improvement”
means the original construction of residential property and
constructing, repairing, remodeling or altering residential
property and includes, but is not limited to, the construction,
repair, replacement or improvement of driveways, swimming
pools, terraces, patios, fences, porches, garages, basements
and other structures or land adjacent to a residential dwelling.
(b) “Residential construction or improvement contract
“ means an agreement, oral or written, between an original
contractor and an owner for the performance of a home improvement
and includes all labor, services and materials furnished and
performed thereunder.
LIENS GENERALLY
87.142 Definitions for ORS 87.142 to 87.490, 87.705, 87.710
and 87.910
As used in ORS 87.142 to 87.490, 87.705, 87.710 and 87.910,
unless the context otherwise requires:
(1) “Animal” means any mammal, bird, fish, reptile,
amphibian or insect.
(2) “Chattel” includes movable objects that are
capable of ownership, but does not include personal rights
not reduced to possession but recoverable by an action at
law or suit in equity, money, evidence of debt and negotiable
instruments.
(3) “Electric cooperative” means a cooperative
corporation organized under ORS chapter 62 the principal business
of which is the construction, maintenance and operation of
an electric transmission and distribution system for the benefit
of the members of that cooperative corporation and which has
no other principal business or purpose.
(4) “Electric utility” means a corporation engaged
in distributing electricity, directly or indirectly, to or
for the public and regulated by the Public Utility Commission
under ORS chapter 757.
(5) “Excavation” means a shaft, tunnel, incline,
adit, drift or other excavation designed for the use, working
or draining of a mine.
(6) “Fair market value” means, with respect to
a chattel sold at a foreclosure sale under ORS 9.370, 87.142
to 87.490, 87.705, 87.710, 87.910 and 90.120, the price of
chattels of the same kind and condition prevailing in the
county of sale at the time of sale.
(7) “Fungible chattels” means chattels of which
any unit is the equivalent of any other unit.
(8) “Improvement” means a road, tramway, trail,
flume, ditch, pipeline, building, structure, superstructure
or boardinghouse used for or in connection with the working
or development of a mine.
(9) “Irrigation” includes the use of canals, ditches,
pipes, pumps, spraying apparatus and other mechanical devices
to water land artificially.
(10) “Mine” means a mine, lode, mining claim or
deposit that contains or may contain coal, metal or mineral
of any kind.
(11) “Mortgagee” means a person who has a valid
subsisting mortgage of record or trust deed of record securing
a loan upon any real property to be charged with a lien under
ORS 87.352 to 87.362.
(12) “Nursery stock” means fruit trees, fruit-tree
stock, nut trees, grapevines, fruit bushes, rose bushes, rose
stock, forest and ornamental trees, and shrubs both deciduous
and evergreen, florists’ stock and cuttings, scions
and seedlings of fruit or ornamental trees and shrubs, and
all other fruit-bearing plants and parts thereof and plant
products for propagation or planting.
(13) “Owner” includes:
(a) A person who has title to a chattel or real property;
(b) A person who is in possession of a chattel or real property
under an agreement for the purchase thereof, whether the title
thereto is in the person or the vendor of the person; or
(c) A person who is in lawful possession of a chattel or real
property.
(14) “Person” includes individuals, corporations,
associations, firms, partnerships and joint stock companies.
(15) “Security interest” means an interest in
a chattel reserved or created by an agreement that secures
payment or performance of an obligation as more particularly
defined by ORS 71.2010 (37).
(16) “Timbers” means sawlogs, spars, piles, and
other wood growth that has been cut or separated from land.
(17) “Wood products” includes lumber, slabwood,
plywood and other wood products produced from timbers. The
term does not include paper or products made from paper.
87.146
Priorities of Liens
(1) Except as provided in subsection (2) of this section:
(a) Liens created by ORS 87.152 to 87.162 have priority over
all other liens, security interests and encumbrances on the
chattel subject to the lien, except that taxes and duly perfected
security interests existing before chattels sought to be subjected
to a lien created by ORS 87.162 are brought upon the leased
premises have priority over that lien.
(b) Liens created by ORS 87.216 to 87.232 have equal priority.
When a decree is given foreclosing two or more liens created
by ORS 87.216 to 87.232 upon the same chattel, the debts secured
by those liens shall be satisfied pro rata out of the proceeds
of the sale of the property.
(c) With regard to the same chattel, a lien created by ORS
87.216 to 87.232 has priority over a nonpossessory chattel
lien created by any other law.
(d) With regard to the same chattel, a lien created by ORS
87.216 is junior and subordinate to a duly perfected security
interest in existence when the notice of claim of such lien
is filed under ORS 87.242.
(e) With regard to the same chattel, a lien created by ORS
87.222 to 87.232 has priority over a security interest created
under ORS chapter 79.
(2)(a) A personal property tax lien, a chattel lien claimed
by the State of Oregon, its agencies or any political subdivision
thereof, and a chattel lien claimed by a state officer or
employee during the course of official duty pursuant to law
have priority over a lien created by ORS 87.152 to 87.162
and 87.216 to 87.232.
(b) A duly perfected security interest of a lessor in any
portion of crops or animals to pay or secure payment of rental
of the premises upon which those crops or animals are grown,
not to exceed 50 percent of those crops or animals, shall
not be subject to the lien created by ORS 87.226.
MISCELLANEOUS PROVISIONS
87.910 Cost of Preparing Lien Notice
A person who files a notice or claim of lien under this chapter
may add to the amount of the claim, as contained in the notice,
the amount of fees actually paid for the recording or filing
of the lien notice, and such amount thereupon shall become
part of the lien against the property described in the notice.
87.920 Recording of Document not to
Create Lien, Affect Title or Constitute Notice Except as Authorized
by Law
Except where filing of the document is specifically required
or authorized by statute, no document filed for recording
or otherwise with any public officer in this state before
or after October 15, 1983, shall create a lien or encumbrance
upon or affect the title to the real or personal property
of any person or constitute act |
