Contributor: Lee Grossman
If you are a contractor, subcontractor, or material supplier working on a construction project in North Dakota, your right to file a construction lien is one of the most powerful tools you have to get paid. But that right comes with strict deadlines and procedural requirements. Miss one, and you could lose your ability to collect entirely.
What Is a Construction Lien?
A construction lien (formerly called a mechanic’s lien) is a legal claim against real property. It gives the person who furnished labor or materials for a construction project a security interest in the property itself. North Dakota’s construction lien statutes are found in N.D.C.C. Chapter 35-27. Under N.D.C.C. § 35-27-02, any person that improves real estate, whether under contract with the owner or under contract with any agent, trustee, contractor, or subcontractor of the owner, has a lien upon the improvement and upon the land on which it is situated for the price or value of such contribution.
The Notice Requirement
Before you can record a construction lien, you must notify the property owner that a lien will be claimed. N.D.C.C. § 35-27-02 requires that written notice be given to the owner of the real estate by certified mail at least ten days before the recording of the construction lien. This requirement applies to all claimants. If you skip this step or fail to provide sufficient advance notice, you cannot properly record the lien.
The 90-Day Recording Rule and Its Limits
Once your work is complete, the clock starts running. Under N.D.C.C. § 35-27-13, a construction lien must be recorded with the county recorder within 90 days after the claimant’s last contribution of labor or materials. The lien statement must contain specific information, including the amount claimed, the name of the property owner, a description of the property, and the dates of the first and last furnishing of labor or materials. This 90-day deadline preserves your priority rights against other liens or encumbrances recorded against the same property.
However, the 90-day window is not the absolute cutoff that many people assume. N.D.C.C. § 35-27-14 provides that a lien is not lost simply for failure to file within the 90-day period under § 35-27-13. Instead, a late filing is defeated only as against purchasers or lienholders in good faith and for value whose rights accrue before the lien claim is filed. In other words, filing after 90 days does not automatically void the lien, but it does strip away your priority against third parties who acquired interests in the property before you recorded. If you record outside the 90-day window, your lien priority is the day it was recorded. You don’t get the benefit of priority preservation under N.D.C.C. § 35-27-13. Section 35-27-14 also imposes a hard deadline: a lien may not be filed more than three years after the date the first item of material is furnished.
Enforcing the Lien
Recording the lien is not the final step. Before commencing a foreclosure action, N.D.C.C. § 35-27-24 requires the lien claimant to give advance notice to the record owner of the affected property. That notice must be given by personal service at least ten days before the action is commenced, or by registered mail directed to the owner’s last-known address at least twenty days before the action is commenced. An action is commenced in North Dakota by service of a summons.
The statute of limitations for enforcement is found in N.D.C.C. § 35-27-25. Under that section, no lien is effective or valid unless a lawsuit to enforce it is commenced within three years of the date the lien was recorded. If no action is filed within that period, the lien is deemed satisfied. Section 35-27-25 also contains a demand provision. The owner, agent, or contractor may demand in writing that the lien claimant commence suit within thirty days, and if no suit is filed within that window, the lien is forfeited.
Why These Deadlines Matter
Construction projects often involve multiple parties, overlapping contracts, and payment chains that stretch across months. It is common for disputes to simmer for weeks before anyone considers filing a lien. By that point, critical deadlines may have already passed. Tracking your dates from day one is essential.
Conclusion
Construction liens are a valuable remedy, but only if you follow the rules. The deadlines and notice requirements under N.D.C.C. Chapter 35-27 are detailed, and the interplay between sections like § 35-27-13, § 35-27-14, and § 35-27-25 can catch even experienced contractors off guard. If you have questions about your construction lien rights or need help filing or enforcing a lien, contact the construction litigation team at SW&L Attorneys.
