Furnishers of labor or material to owner, general or first-tier sub. As to contractors and subs, they may only file liens if they are registered. It MAY be possible for a supplier to a supplier to bring a claim if the initial supplier is supplying the general contractor, the initial supplier somehow has charge of the project in whole or in part, and the claimant’s materials can be traced to the project. Note that an unlicensed contractor performing work for a general contractor might be deemed an employee of the contractor. [34.35.050, 34.35.062, 34.35.115, Schor at §3.01[F][2], citing sec. 08.18.151; per Russell Lewis, Schor article author; Larson v. Benediktsson, 152 P.3d 1159 (Alaska 2007)] Architects, surveyors, engineers, and trustees of employee benefit trust all have lien rights. [34.35.050]
1. Who May Have A Lien?
Private:
Public:
Furnishers of labor or materials to at least general or sub. Suppliers to suppliers are most likely not covered, as Alaska law follows the Miller Act. Suppliers to sub-subcontractors MAY be covered in the proper circumstances. [36.25.020; SKW/Eskimos, Inc. v. Sentry Automatic Sprinkler Co., 723 P.2d 1293 (Alaska 1986)]
2. What Is The Lien Against?
Private:
The land upon which the structure is built, plus a convenient space surrounding it. In addition to a lien, there is a provision for a stop-lending notice, to secure a claim against the contract funds. [34.35.055]
Public:
Contractor’s payment bond. [36.25.010]
3. Who Must Give The Preliminary Notice?
Private:
LIEN:
Every claimant. Note, however, that if claimant does not give notice, then the burden is on the claimant to prove that the owner was aware of and consented to claimant’s furnishing labor or materials. If the notice is given, the burden of proof is on the owner to prove lack of knowledge or consent to furnishing. Thus if a claimant has a written contract with the owner, it is probably not necessary to give notice. HOWEVER, if you do not give notice, then your deadline for filing a lien will change. See “When must lien be filed” section, below.
NOTE that if, after giving this notice, the owner, lender or general contractor requests it, the claimant must give the requester within five days the most recent accounting of the amount due and unpaid and a description of labor, materials, services, or equipment that the claimant reasonably anticipates furnishing. [34.35.064]
Public:
A preliminary notice is not required.
4. To Whom Is The Preliminary Notice Given?
Private:
LIEN:
To owner or his agent; the contractor and subcontractor are considered to be agents of the owner. (If possible, recommend always giving notice to the owner; copies to the contractor and sub would be a good idea, but not required unless it is impossible to notify the owner.) Also recommend recording it in the recorder’s office. See “interim notice” sections, below. [34.35.064; 34.35.067; 34.35.115]
Public:
Not applicable.
5. When Must Preliminary Notice Be Given?
Private:
TO THE OWNER OR AGENT:
Notice must be received before first delivery. If given later, then the burden of proving that the materials were actually incorporated into the project rests with the claimant. If given before first delivery, then the burden of proof is on the owner.
TO THE RECORDER’S OFFICE:
It can be given at any time after claimant enters into a contract, or actually furnishes the labor, materials or services. See “interim notice”, below. [34.35.064, 34.35.067]
Public:
Not applicable.
6. Contents of Preliminary Notice.
Private:
-Statement that it is a notice of a right to assert a lien against real property for labor, materials, services or equipment furnished in connection with project
-Legal description of property sufficient for identification
-Name of owner
-Name and address of claimant
-Name and address of person with whom claimant has contract
-Description of labor, material, services or equipment furnished or to be furnished
-Statement that the claimant may be entitled to record a claim of lien.
-Statutory warning in a type no smaller than that used for information listed above.
NOTE that if, after giving this notice, the owner, lender or general contractor requests it, the claimant must give the requester within five days the most recent accounting of the amount due and unpaid and a description of labor, materials, services, or equipment that the claimant reasonably anticipates furnishing. [34.35.064]
Public:
Not applicable.
7. How Must Preliminary Notice Be Given?
Private:
Personal service with signed acknowledgment of receipt, or first class and either registered or certified mail, return receipt requested. If the preliminary notice is not received, then presumably it is treated as not having been given, and the burden of proving that the owner was aware of and consented to the claimants work or deliveries remains with the claimant. [34.35.064, 34.35.120]
Public:
Not applicable.
8. Who Must Give Interim Notice?
Private:
An interim notice is not required, but a claimant may record and give the owner a Notice of Right to Lien with the Recorder any time after entering into a contract. Giving this Notice affects the claimant’s deadline for filing the lien. These deadlines are set out below, in the “When is final notice given” section. [34.35.067, 34.35.068]
Public:
Not required.
9. Who Must Give Final Notice?
Private:
Every claimant.
Public:
Every claimant who contracts with a sub and not the general contractor. [36.25.020]
10. To Whom Is Final Notice Given?
Private:
LIEN:
Recorder of the district in which the land is located. [34.35.068, 34.35.071]
STOP LENDING NOTICE:
Lender, owner, and each contractor with whom claimant has contracted. [34.35.062]
Public:
To general contractor. [36.25.020]
11. When Is Final Notice Given?
Private:
LIEN:
Within 120 days after claimant completes contract or ceases providing labor, materials, etc:
-Where no Notice of Completion is filed; OR
-Where a Notice of Completion has been filed, and the claimant has filed its Notice of Right to Lien, but does not receive advance notice of the filing of the Notice of Completion; OR
-Where a claimant has not given a Notice of Right to Lien until within 15 days after the Notice of Completion is recorded.
Note that the deadline presumably determines to the date the notice must be received.
Within 15 days after recording of Notice of Completion, IF
-The claimant has received advance notification of the date that the notice of completion is recorded as provided; OR
-The claimant did not give a Notice of Right to Lien (in this case, the claimant can then record a Notice of Right to Lien within this deadline, and then file its lien within the 120 day deadline described above, if it has not already passed. [34.35.068, 34.35.071]
Note that the deadline presumably determines to the date the notice must be received.
STOP LENDING NOTICE:
After payment to the claimant is past due. [34.35.062] Note that the deadline presumably determines to the date the notice must be received.
Public:
Within 90 days of last furnishing labor or material. [36.25.020] Note that the deadline presumably determines to the date the notice must be received.
12. How Is Final Notice Given?
Private:
LIEN:
Recorded in the office of the recorder of the district in which the land is located. [34.35.068, 34.35.071]
STOP-LENDING NOTICE:
Personal service with signed acknowledgment of receipt, or first class and either registered or certified mail, return receipt requested. [34.35.120] It is not clear if there are any consequences if the owner and contractors do not receive copies of the stop lending notice, but obviously if the lender doesn’t receive it, they will not stop lending.
Public:
Registered mail or personal service. There is no discussion of the consequence of a contractor refusing to accept service or the mail. [36.25.020]
13. Contents of Final Notice
Private:
LIEN:
-Legal description of property sufficient for identification
-Name of owner
-Name and address of claimant
-Name and address of person with whom claimant has contract
-A general description of the labor or materials furnished
-The contract price of said labor or materials
-The amount due
-The date the last labor or materials were furnished
-Claim must be verified by the claimant or someone having knowledge of the facts. [34.35.070]
STOP LENDING NOTICE:
-Instruct lender to stop advancing financing
-Claimant’s name, address and telephone number
-Describe labor and materials furnished
-Name of person to whom labor or material furnished
-Description of real property and name of owner
-Amount due
–Per the statutory language, the claim must be verified by the claimant. Apparently the attorney cannot sign on the claimant’s behalf. [34.35.062]
Public:
-Amount claimed
-Name of person to whom labor or material was furnished. [36.25.020]
14. Time to Start Suit / Foreclose?
Private:
LIEN:
Within 6 months after recording the lien, or 6 months after recording an extension notice, if it is recorded within the original 6-month period. The extension notice must include the recording date and the book and page or instrument number or serial number of the initial claim of lien, and the balance owing. [34.35.080]
STOP-LENDING NOTICE:
Within 90 days after giving the notice. [34.35.062]
Public:
More than 90 days from last furnishing labor or materials, but less than one year after the date of the final settlement of the contract. [36.25.020]
