CONSTRUCTION LIENS IN IDAHO

The right to lien for material and work done on land is a key protection for those who build things or develop land for others.

Who has the right to record a mechanic's lien?

1. Anyone who does work on a building or land. I.C. § 45-501.

2. Anyone who furnishes materials to be used in the construction, alteration, or repair of a structure or land has a lien for the value of the materials provided. Id.

3. Any professional engineer or licensed surveyor:

  • who prepares or furnishesdesigns, plans, plats, maps, specifications, drawings, surveys, estimates of cost, on-site observation or supervision; or
  • who renders any other professional service whatsoever in connection with any land or building development or improvement, or to establish boundaries. Id.

4. Anyone who leases equipment to improve property. I.C. § 45-504.  

Where is the lien recorded?

A mechanic's lien must be recorded in the county where the property is located. I.C. § 45-507(1). In the unusual situation where the property is located in more than one county, any county where the property is located will do. Id.

What must be in the lien? 

The lien must contain the following information:

  • The amount claimed;
  • The name of the property owner;
  • The name of the person who hired the contractor to do the work or deliver the materials. This is often the owner, but could be an agent of the owner (i.e., a general contractor); and
  • A legal description of the property. The statute says the description must be "sufficient for identification" of the property. A legal description is best.

I.C. § 45-507(3)

Does the lien need to be notarized?

The lien must be verified. I.C. § 45-507(4). A verification is signed by a notary public and it certifies that the person who signed the lien personally appeared, was sworn, stated his or her authority for making the instrument, and averred the truth of the statements. I.C. § 51-109. For example, a verification of an officer of a corporation states:

State of Idaho              )
                                     )ss.
County of .....                )
     I, ...................., a notary public, do hereby certify that on this ..... day of .........., ....., personally appeared before me ............., who, being by me first duly sworn, declared that he is the ............ of ........................., that he signed the foregoing document as .......... of the corporation, and that the statements therein contained are true.
                                                                                         

                                                                                                                        ....................(official signature and seal)

What land does the lien attach? 

The land where the work was done AND a "convenient space" around the land.  I.C. § 45-505. The "convenient space" deals with the situation where the work is done on a lot or parcel, but a neighboring lot was used for staging or storage. The lien may be recorded against the "convenient space." The amount of "convenient space" that the lien covers is ultimately determined by the Court. Id. 

Who must request the work?

The lien is only valid if the owner requests the work be done. I.C. § 45-505. If the person asking for the work to be done is an agent of the owner, then the lien will be valid. But, any savvy contractor will make sure the agent actually has the power to request the work. 

The person who requests the work must own the land at the date the work startedId. If the person who requests that the work be done will buy the land, a savvy contractor will not start work until that person actually owns the land OR will confirm the owner is requesting the work be done. 

The lien only extends to the owner's interest in the land. Id. For example, if the person requesting the work holds a 1/4 ownership interest, then the lien will only extend to the 1/4 ownership. If the lien is recorded and foreclosed, a buyer at the foreclosure sale will get only a 1/4 interest. This reduces the value of the lien.

What is the priority of the lien?

Priority deals with what liens are wiped out if there is a foreclosure. Idaho Code makes it clear that a mechanic's and materialmen's lien is "ahead" of all liens recorded after the work beganI.C. § 45-506. Obviously, a lien for work done on the land will not be recorded before the owner fails to pay for the work. If the owner pays, there is no need for the lien. While the work is going on, other liens could be recorded. To protect a contractor, the lien for work done will have priority over those liens recorded after the work began

This is the reason all lenders will ask whether any work has been done on the land for the last 90 days. The lien must be recorded within 90 days of completion of the work or delivery of the materials. I.C. § 45-507(2).

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