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On residential projects in Idaho, the prime contractor must send a Residential Disclosure Notice before entering contract for more than $2000.
Idaho doesn't require other parties to send a preliminary notice before filing a mechanics lien. However, sending a prelim can reduce payment problems and help you get paid faster.
In Idaho, a mechanics lien must be filed within 90 days after last furnishing of labor or materials.
Idaho claimants must enforce their mechanics lien within 6 months of filing the lien.
Idaho mechanic liens can not be extended, and missing the enforcement deadline renders the lien unenforceable.
Idaho provides relatively broad mechanics lien rights. According to Idaho statute, “every person performing labor upon, or furnishing materials to be used in the construction, alteration or repair” of virtually any kind of real property or improvement is granted mechanics lien rights. Materials or equipment lessors are also explicitly allowed to file a lien. Further, professional engineers, licensed land surveyors, and persons providing on-site management or supervision are granted mechanics lien protection.
No, there is no specific requirement that construction contracts be in writing in order to be able to file an Idaho mechanics lien. However, it’s always best practice to get your agreements in writing to avoid any confusion or complications.
• Dive deeper: Can Contractors File a Lien Without a Written Contract?
It depends. Idaho law is intricate on the issue of licensing/registration of contractors and mechanics lien rights.
General and subcontractors on a construction project in Idaho are generally required to be licensed in order to claim a valid mechanics lien, subject to certain exceptions. However, if the contractor or subcontractor is unlicensed at the beginning of the project, and subsequently becomes licensed and registered during the project, the work performed after the licensing and registration will be protected.
When a subcontractor is licensed but the general contractor is unlicensed, the ability of the subcontractor to claim a valid mechanics lien depends on the subcontractor’s knowledge of the general’s licensing and registration status – if the sub knew the general was unlicensed, that sub cannot claim a valid lien. However, if the sub did not know the general was unlicensed, a mechanics lien is warranted. Suppliers are not required to be licensed if they do not also install the materials supplied such that they are acting as a subcontractor.
• Learn how to get licensed: Idaho Contractor Licensing and Registration Guide
Idaho law requires that all lien claimants file their mechanics lien within 90 days of the date they last supplied labor or materials.
Providing materials “trivial in character” if the work is substantially completed will not extend the period in which a lien may be filed. Generally, punch-list items fall into this category. However, remedying a defect in the project at the demand of a public inspector is not the same as “punch-list” work, and has been found to be not “trivial” and may extend the time in which a lien may be filed.
An Idaho Claim of Lien is governed by Idaho Code §45-507, and must contain all of the following information:
• Claimant’s information;
• Amount claimed, after deducting all just credits and offsets;
• Owner’s information;
• Hiring party’s information;
• Property description; &
• Acknowledgement of receipt of residential disclosures, signed by the owner (if applicable).
To be a valid mechanics lien in Idaho, it must only include a description of the site sufficient for identification. However, it’s a really good idea to include a legal description of the property, because this makes sure that you meet the “sufficiency” requirement.
No. Attorney’s fees and other consequential damages should not be included in an Idaho lien amount. However, the lien claimant is entitled to recover his attorney’s fees and the costs for filing and recording the Claim of Lien in a foreclosure action when the lien is enforced.
• Learn more: Lien Amounts | What can you include in each state?
Yes. Idaho law requires that a mechanics lien must be notarized to be valid and accepted for recording.
• Learn more about notarizing construction payment documents
• Options for notarizing mechanics liens remotely
Idaho mechanics lien claims are documents recorded with the county recorder’s office. For your mechanics lien to be valid, you must record it in the county where the job is physically located.
Idaho counties each have their own unique rules and requirements. To help you, we’ve assembled all of the offices in Idaho that record mechanics liens. These pages will walk you through the county’s specific formatting requirements, deadlines, and fees.
• Be prepared: Essential Questions to Ask The County Recorder Before Filing a Lien
There are a lot of questions on this page about who can file a Idaho mechanics lien, when it must be filed, what types of rules apply, and more. But you may be wondering something much more practical: how do I actually get my mechanics lien recorded and filed?
• For a full breakdown of the process, you may want to consult: Step-by-Step Guide: How to File an Idaho Mechanics Lien
Yes. Idaho law requires that the lien claimant send a copy of the Claim of Lien to the owner of the property, or reputed owner of the property, within 5 days of filing the Claim of Lien in the county recorder’s office.
This copy must be delivered to the owner or reputed owner either by personal delivery, or by certified mail return receipt requested. This notice is essential.
In Idaho, all lien claimants must initiate the enforcement of the lien within 6 months from the date on which the lien was filed. Failure to meet this deadline for enforcement will result in the expiration of the lien claim.
However, the time by which the lien must be enforced may be increased by “payment on account” or “an extension of credit given with expiration date thereof” provided that “such payment or credit and expiration date, is endorsed on the record of the lien.” This extension allows the lien to be enforced within 6 months after the date of such payment or extension.
No. Mechanics liens in Idaho have priority over other encumbrances/mortgages etc., following the “first-in-time” rule.
For priority determinations, mechanics liens are judged to have attached on the date of the first work on the project by any of the trades. If a construction lender records the mortgage after the work has started, any mechanics lien would have priority.
In terms of priority battles between mechanics lien claims, Idaho mechanics liens are paid in the following order, by group:
All claimants in each step are paid before any in the next step, if there is not enough to satisfy all claimants in one step they will be paid pro-rata.
Idaho does not have specific requirements regarding the cancellation of a lien upon payment. Generally, however, a payment to satisfy a lien will be made in consideration of the claimant executing a satisfaction of lien document.
Your best bet is to sue the homeowner for breach of contract
in small claims court as the costs of using a lawyer would be cost
prohibitive. You would end up spending exponentially more on attorneys
fees than what you are owed. You would likely be entitled to recover your
attorneys fees but if you can’t afford to pay for leads, you certainly cannot
afford a lawyer. Neither party can use a lawyer in small claims court so
you will not be at a disadvantage. Make sure to submit copies of the
texts/emails from the homeowner agreeing to pay for the work. It sounds
like you have an excellent case with a high likelihood of prevailing.
The maximum amount you can recover in small claims court is
$5,000. You can seek to recover lost profits but those are very difficult
to prove without actual contracts that you couldn’t perform due to the
homeowner’s non-payment.
You could also record a lien against their property to
secure the amounts you are owed but you would have to file a lien foreclosure
suit to recover a judgment ordering that you be paid out of the proceeds of the
sale of the property. I strongly recommend using a lawyer to record the
lien and to prosecute the foreclosure action. There are many technical
requirements to record a valid lien. Any decent construction lawyer will
ensure that all of these requirements are met. It typically costs between
$500 - $700 to have a lawyer draft and record a lien on your behalf. If
you choose to record your own lien make sure to closely review the lien
statutes and follow their requirements to the letter. The lien statutes
are located at Idaho Code §§ 45-501 – 45-525 and are available online.
Best of luck.
A contractor must record a construction lien within 90 days of its last day of non-trivial work. That said, a contractor you hire can sue you for breach of contract for up to five years after the contract is/was breached. Removing the lien will not eliminate your obligation to pay for the work. The lien will be invalid if the contractor doesn't file a lawsuit to foreclose it within 6 months of the date it is filed but it will still remain of record and could cause issues if you ever decide to sell.
There is a statutory process to remove a lien and substitute a bond in its place. However, the only way to forcibly remove a lien is through a quiet title action.
Given that you're not disputing you owe the money, the best way to resolve this is to locate the contractor and pay it what it is owed in exchange for a release of lien.
If a contractor records an invalid lien you can file a lawsuit to quiet title and have the lien released. Alternatively, you can wait to see if the contractor files a lawsuit to foreclose the lien and then file a counterclaim for quiet title if the contractor does so. The contractor must file a lien foreclosure suit within 6 months of the date the lien was recorded or the lien is invalid.
Unfortunately, a mechanic's lien cannot be used to secure amounts owed for healthcare services. Mechanic's liens can only be used to secure amounts owed for labor or materials used in the improvement of real property. However, there are also other statutory liens that you may be able to utilize - see Idaho Code Sections 45-601 thru 45-621 (claims for wages) and 45-701 thru 45-705 (hospitals and nursing care liens). Although our firm is very experienced in recording, foreclosing and defending against Mechanic's Liens, we have not recorded liens for wages or hospital/nursing care expenses. Because there are specific deadlines and other rules that must be complied with and because identifying the land subject to the lien can sometimes be fairly complicated, I strongly recommend that you reach out to a law firm that handles these types of issues. The last thing you want is for your lien to be invalidated on a technicality; particularly if this is the sole way for you to get paid.
Another and potentially better option would be for the family to give you a promissory note and deed of trust to record against the real estate to secure the amounts you are owed prior to the sale. If you have a recorded interest in the property then you may be able to be paid that way. Again, this is a question for an attorney that handles these types of claims.
The lien is likely invalid for failure to provide notice as the Idaho lien statutes require that the lien be served upon you by hand delivery or by registered mail within 5 days of the date the lien was recorded. Service is effective regardless of whether you accepted the certified mailing. Regardless, the lien expires 6 months after the date it was recorded unless a lawsuit to foreclose the lien is filed in the county where the property is located. If the contractor failed to foreclose its lien within 6 months it is invalid and you can have it removed by filing a lawsuit to quiet title. Keep in mind that the contractor could still sue you for breach of contract even if the lien is invalid. Either party to a written contract can sue for damages due to a material breach by the other (including for non-payment) for up to 5 years after the construction work is substantially completed.
No, changes in other parties' circustances generally shouldn't affect the information an Idaho mechanics lien claimant puts on their own lien claim - particularly when those changes in circumstance occurred after the claimant's work was completed. For example: Idaho mechanics liens should generally include the claimant's hiring party and their contact info. Even if that hiring party goes out of business, they're the ones who hired the claimant to do work on the job. So, listing that hiring party, even if they're defunct, is appropriate since it represents accurate, required information about how the claimant came to perform work on the job.
It's worth noting that this is the exact type of situation is why lien rights are so crucial for subcontractors, suppliers, equipment rental companies, and others who were hired by someone other than the owner on the job. Despite the fact that the customer has gone belly-up, a mechanics lien claim can attach to the property and force payment from someone else on the job - like the owner, developer, lender, etc.
For further discussion on Idaho mechanics lien rights and claims, these resources should be helpful to you: (1) Idaho Mechanics Lien Guide and FAQs; and (2) How to File an Idaho Mechanics Lien – Step by Step Guide to Get You Paid. Additionally, keep in mind that the mere threat of a mechanics lien claim will often be enough to force payment, particularly when a lien claim would disrupt the progress of a development: What is A Notice of Intent to Lien And Should I Send One?
Idaho does not have a preliminary lien requirement but §45-525 (2) of the Idaho Code does require the GC to provide a General Contractor Disclosure prior to entering into any contract in an amount exceeding $2,000 with a homeowner. The statute defines a "General Contractor" as anyone who contracts directly with the homeowner. If the homeowner is acting as the general contractor and is contracting directly with a number of specialty contractors to perform the work, every one of those specialty contractors is considered a "General Contractor" under the statute regardless of whether or not that specialty contractor is employing subcontractors. The General Contractor Disclosure must be signed and dated by the homeowner and the General Contractor needs to retain a copy.
In addition the General Contractor Disclosure form which must be signed by the homeowner, §45-525 (3) (a) of the Idaho Code requires the General Contractor to provide the homeowner with the names and contact info for all subcontractors, material suppliers, and rental equipment providers who performed work or provided material or rental equipment greater than $500 in value. The list must be provided prior to final payment by the homeowner. The law also authorizes the subcontractors to inform the homeowner of any amounts due them.
Failure to provide the homeowner with the General Contractor Disclosure could be cited as the grounds for dismissing a lien.
However, failure of the General Contractor to provide the list to the homeowner does NOT affect the subcontractors, material suppliers, or rental equipment providers right to file a lien. They simply have to follow the requirements set forth in §45-507 of the Idaho Code. Here is a link to the website where you can read and download the code sections.Idaho Statutes
You can download copies of the required disclosures for free on my website
https://chuckmillerconsulting.com/free-downloads/
Gravel extraction would likely give rise to mechanics lien rights in Montana as long as the ultimate goal of the project wasn't to remove the gravel simply to make it available for sale. But, if the point of the project is to extract gravel so it can be sold, then mechanics lien rights would likely not be available.
This question sounds very similar to another one posted here in the Community - and you can find a detailed breakdown of the relevant Montana statutes here: Can I file a mechanics lien? | Belgrade, MT.
Contractors & suppliers have strong lien rights in Idaho. If a contractor or supplier isn’t paid on an Idaho job, they can turn to filing a lien to speed up payment and protect themselves. However, there are specific requirements and rules that must be followed.
Here are 5 essential things you need to know about Idaho’s mechanics lien law.
Idaho mechanics lien law is lenient. One way to describe it might be that Idaho is very friendly to those in the construction industry, as most anyone in Idaho providing labor or materials to be used in “virtually any kind of real property or improvement is granted mechanics lien rights.” This extends to material or equipment lessors, professional engineers, licensed land surveyors, and even persons providing on-site management or supervision. Note, however, that a valid license may be required if the work being performed requires a license.
The deadline to file a mechanics lien in Idaho is 90 days within the last date of furnishing labor and materials to the project. If the work is substantially complete and a project participant is just performing “punch-list work,” or other work that is trivial in nature, the deadline will not be extended. However, if a project participant is required to remedy a defect at the demand of a public inspector, that work is not considered trivial and will likely extend the deadline by which a mechanics lien must be filed.
The only instance in Idaho where preliminary notice is required to be sent prior to claiming a valid Idaho mechanics lien is when a general contractor is performing work on a residential project with a contract in excess of $2,000. The general contractor must send a Residential Disclosure Statement if this is the case (see below).
In Idaho, you cannot claim attorney’s fees and other consequential damages as part of the lien amount. However, if a project participant needs to foreclose on the lien, they are entitled to recover the attorney’s fees and filing costs.
In Idaho, there is a set order for which party’s mechanics lien takes priority. Laborers’ claims take first priority. Next in line are material men, followed by subcontractors, then the prime contractor, and then engineers/surveyors.
In our step-by-step guide, we will walk you through each step required to qualify for and file an Idaho mechanics lien. This guide explains the notices you need to send, the information required on the Idaho mechanics lien form, and essential tips about delivering it to the county office for recording.
After you read the guide, get a blank copy of the Idaho mechanics lien form. Levelset’s free forms were created by construction attorneys to meet the strict requirements under Idaho mechanics lien law. The state statutes are very specific about the language and formatting required in a lien claim document. We make it easy to get this part right.
This is the trickiest part. Since Idaho lien law is very specific about what information you must provide, you need to make sure your form includes all the required information and that the information is 100% accurate. Even the smallest mistake when filling your Idaho lien form out could invalidate your claim entirely.
After you fill the form out, sign the form in the presence of a notary and get the form notarized.
After you fill the form out, it’s time to file your lien claim with the recorder’s office in the Idaho county where the property is located. View a full list of Idaho recorder’s offices to find contact information, fees, and filing requirements for your local county.
In Idaho, you’re required to serve a copy of the lien on the property owner after you file it. The deadline to do this is 5 days after filing. You can either deliver the copy personally or by certified mail. If you fail to serve the notice within the 5 day deadline your lien is invalidated.
After the lien is recorded and delivered, it is valid for 6 months after the date of filing. Unless you extend the lien, you only have 6 months to enforce your lien claim if needed.
If you get paid, it’s a good idea to release your lien from the property.
The provisions of the Idaho statutes that permit the filing of mechanics liens can be found in Idaho’s statute for Liens of Mechanics and Materialmen, Idaho Code § 45-501 et. seq. The full text of the statute is provided below. Updated as of May 2023.
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.
For purposes of this chapter the term “furnishing material” shall also include, notwithstanding any other provision of law to the contrary, supplying, renting or leasing equipment, materials or fixtures as defined in section 28-12-309, Idaho Code.
“Furnishing material” shall also include renting, leasing or otherwise supplying any equipment, materials, fixtures or machinery to any mine or mining claim.
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 who rents, leases or otherwise supplies equipment, materials or fixtures as defined in section 28-12-309, Idaho Code, to such person for the improvement of any lot, or the street in front of or adjoining the same, has a lien upon such lot for his work done or material furnished or equipment, materials or fixtures as defined in section 28-12-309, Idaho Code, rented, leased or otherwise supplied.
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, the furnishing of the material, or the renting, leasing or otherwise supplying of equipment, materials or fixtures as defined in section 28-12-309, Idaho Code, 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, or such person was acting as the agent of the owner, but if such person owns less than a fee simple estate in such land, then only the interest of the person or persons causing the services or improvement therein is subject to such lien.
The liens provided for in this chapter shall be on equal footing with those liens within the same class of liens, without reference to the date of the filing of the lien claim or claims and 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, equipment, materials or fixtures were rented or leased, 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, equipment, materials or fixtures were rented or leased, or materials or professional services were commenced to be furnished.
(1) Any person claiming a lien pursuant to the provisions of this chapter must file a claim for record with the county recorder for the county in which such property or some part thereof is situated.
(2) The claim shall be filed within ninety (90) days after the completion of the labor or services, or furnishing of materials.
(3) The claim shall contain:
(a) A statement of his 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 he was employed or to whom he furnished the materials;
(d) A description of the property to be charged with the lien, sufficient for identification; and
(e) For work or materials subject to the provisions of section 45-525, Idaho Code, the required proof of disclosure and acknowledgment of receipt.
(4) Such claim must be verified by the oath of the claimant, his agent, or his attorney to the effect that the affiant believes the same to be just.
(5) A true and correct copy of the claim of lien shall be served on the owner or reputed owner of the property either by an officer authorized by law to serve process 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 five (5) business days following the filing of said claim of lien.
(6) For purposes of this chapter, owner or reputed owner does not include a trustee of a deed of trust as defined and required by chapter 15, title 45, Idaho Code.
(7) In any court proceeding regarding a lien filed pursuant to this section, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs.
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.
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.
(1) 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 ten (10) years from the date the judgment becomes final.
(2) Nothing in this chapter requires that a trustee of a deed of trust as defined and required by section 45-1502 et seq., Idaho Code, be included in a claim of lien or foreclosure or judgment under this chapter.
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.
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 including persons furnishing, renting or leasing equipment, materials or fixtures as defined in section 28-12-309, Idaho Code, 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 including persons furnishing, renting or leasing equipment, materials or fixtures as defined in section 28-12-309, Idaho Code, 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.
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.
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.
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, equipment, materials or fixtures rented or leased or materials furnished, to maintain a personal action to recover such debt against the person liable therefor.
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.
The term “labor” as used in this title shall include the cost of worker’s compensation and occupational disease compensation security required by the provisions of sections 72-301 through 72-304, Idaho Code, and amendments thereto, payment for which security has not been made.
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.
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 ….., .., 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 …., …
………
(Signature of Principal)
(SURETY CORPORATION)
BY ………
(Its Attorney in Fact)
State of Idaho )
) ss.
County of …. )
On ….., .., 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)
(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.
(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.
(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.
(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.
(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 and sufficiency of the surety.
(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 real property 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.