Construction Frequently
Asked Questions.

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Preliminary Notice FAQ

A North Dakota preliminary notice is a letter sent by a contractor or supplier to the property owner at the start of a construction project. In many states, a preliminary notice is required to be sent in order to secure the right to lien.

No, North Dakota does not require its project participants to serve a preliminary notice at the start of a project. However, a Notice of Intent to Lien must be served before filing a North Dakota mechanics lien.

Sending a preliminary notice other than the Notice of Intent to Lien is not required in North Dakota.

There are no consequences for failing to serve a regular preliminary notice in North Dakota.

Intent To File FAQ

A North Dakota notice of intent to lien is a letter sent by a potential lien claimant to the property owner to announce the intention to record a mechanics lien. 

Yes, all construction participants in North Dakota must serve a Notice of Intent to Lien prior to filing a mechanics lien. [i]

In North Dakota, a notice of intent to lien must be sent 10 days before filing a mechanics lien. It advises the owner of your intention to record a lien if the payment is not satisfied.

Failing to send a North Dakota notice of intent to lien is fatal to your lien rights. You may not file an enforceable North Dakota mechanics lien if you do not serve a Notice of Intent to Lien.

Mechanics Lien FAQ

A North Dakota mechanics lien is an effective tool that helps make sure you will be paid for the construction materials and/or labor you supplied. It is a legal claim that can effectively recover payment for contractors and suppliers.

This means that if you file a valid mechanics lien in North Dakota and you do not get paid for your work, you have the right to enforce the lien through a lawsuit. This enforcement action can either prompt the client to settle or force the sale of the property. The proceeds of the sale will be used to settle your unpaid bill.

If you successfully file a North Dakota mechanics lien, you have an interest in the improved property. When a mechanics lien is filed on the property you worked on, the property becomes collateral for uncollected payments.

According to North Dakota Century Code 35-27-02 , [ii] parties who perform labor or furnish materials to a construction project are eligible to file a mechanics lien.

These parties may include but are not limited to general contractors, subcontractors, material suppliers, architects, and engineers.

A mechanics lien in North Dakota must be filed within 90 days of the date you last furnish labor or materials to the project. [iii]

A North Dakota mechanics lien is enforceable within three years of the filing date. [iv] This deadline may be shortened to 30 days if the property owner serves you a notice of demand to commence suit.

Note that you must serve the property owner a Notice of Intent to Enforce 2o days before initiating a lawsuit. [v]

North Dakota laws require a mechanics lien to have the following information: [vi]

  • property description
  • amount being claimed
  • the dates of the first and last instances of contributing to the project
  • the name of the person with whom the claimant contracted

The North Dakota mechanics lien does not have to be notarized before filing.

North Dakota has no rules on when and how to release a mechanics lien. Releasing a mechanics lien may be done in a discussion with the property owner after the outstanding payment has been settled.

No court in North Dakota has yet considered the validity of the “pay-if-paid” and the “pay-when-paid” clauses.

References:

[i] North Dakota Century Code § 35-27-02

[ii] North Dakota Century Code § 35-27-02

[iii] North Dakota Century Code § 35-27-13

[iv] North Dakota Century Code § 35-27-25

[v] North Dakota Century Code § 35-27-24

[vi] North Dakota Century Code § 35-27-13

Handle.com provides answers to Frequently Asked Questions (FAQs) to contractors and others who are seeking information regarding preliminary notices, intent to file, mechanics lien, and other construction questions. These are provided for informational purposes only, and we cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies.

North Dakota documents

Bond Claim

Working on a public construction project? Bond claims ensure subcontractors are paid without having to file a lien or a lawsuit against the government.

Miller Act

The Miller Act protects the rights of subcontractors working on or who have worked on government projects.

Stop Payment Notice

Send a Stop Notice is a demand to ensure that payments rightfully due to subcontractors are reserved if the Prime Contractor fails to pay.

Waiver

Waivers release your right to file a mechanics lien in case of non-payment. Some have conditions so ensure you're sending the correct lien waiver type.