Creating Valid Liens

Lean on me

When you’re not strong

And I’ll be your friend

I’ll help you carry on…

– Bill Withers 1972

Leaning on a friend for help is one thing. Liening on real property is quite another. It doesn’t happen often, but when it does, it happens fast – a relationship sours or a check bounces and someone is left without payment. All at once you are in a scramble to file a lien to protect yourself and your checkbook. Fortunately, Idaho law allows a person who furnishes labor or materials that are used to improve real property to file a lien on that property. In your attempt to file within the 90-day window of opportunity, don’t get your lien thrown out on a technicality.

Filing a Valid Lien

A proper lien must be filed within 90 days of labor or materials having last been provided and must be recorded with the County Recorder. The lien must contain:

– A statement of the amount demanded, after deducting all just credits and offsets.

– The name of the owner, or reputed owner, if known.

– The name of the person by whom the claimant was employed or to whom he furnished materials.

– A description of the property to be charged with the lien, sufficient for identification.

The lien must also be verified by oath and contain a statement that the claimant believes the lien to be “just.” A “duly sworn” oath or affirmation is not sufficient. Many preprinted forms do not comply with this requirement, so be careful.

Lastly, a copy of the lien must be personally delivered to the owner of the property, or mailed via certified mail, within 5 days of the recording of the lien.

A defective lien will not be upheld in a court of law and will provide the claimant with nothing to lean on. However, a properly recorded lien will protect the claimant and provide him with some assurance of payment.

Foreclosure

If the property owner fails to pay the lien then you must file a complaint to foreclose on the lien within 6 months. Courts enforce labor and materialman’s liens by foreclosing on the lien. The Court issues an order for the property to be sold by the Sheriff and the proceeds of the sale to be used to satisfy the lien.

The priority of all liens and other encumbrances determines who gets paid first from the proceeds of the sale. A labor or materialman’s lien is a preferred claim that has priority over any subsequent mortgage or other encumbrances. Because the priority of liens is established when the work was commenced, it is a good idea to clearly document the time you begin work on a project.

In most instances, just the threat of losing property prompts owners to pay a lien.

Attorney Fees

If your lien is valid and you prevail on foreclosing your lien the Court will award you your attorney fees. Even if you prevail on only a portion of your claim, you may be entitled to all of your attorney fees.