Laborers and materials suppliers, and those renting tools, appliances or machinery, to owner, general, or sub, as long as the claimant is acting pursuant to a real estate improvement contract. It is not clear if furnishing to anyone more remote than a first-tier subcontractor will be protected. There is support for coverage beyond the first tier, and even for suppliers to suppliers. [71-3-523, 71-3-531; Duignan v. Montana Club, 40 P. 294 (1895)]
Laborers, materials suppliers, etc. to at least the general or 1st-tier sub, and possibly more remote subs as well. Apparently suppliers to suppliers do have lien rights. [18-2-201, 28-2-2101; Robintech, Inc. v. White & McNeil Excavating, Inc., 709 P.2d 631, 218 Mont. 404 (1985)]
Improvement and the lot or tract it is on.
Note that there are now rules regarding billing practices, timely payment, interest, termination and related matters, which rights are in addition to, not instead of, lien rights. [71-3-525; 28-2-2101 et seq.]
Payment and performance bond. [18-2-201] If the governmental entity fails to obtain the bond or security, the governmental entity is liable to the claimants. [18-2-202] Note that there are now rules regarding billing practices, timely payment, interest, termination and related matters, which rights are in addition to, not instead of, rights against the bond. [28-2-2101 et seq.]
All claimants EXCEPT the following:
-Those who only furnish labor, to a contractor
-Furnishers of services or materials directly to owner
-Furnishers of services or materials to residential project for five or more families, pursuant to a real estate improvement contract.
-Furnishers of services or materials to project pursuant to a real estate improvement contract, where the improvement is wholly or partially commercial. NOTE that installation of a road and laying of utilities at the outset of construction of a residential development may be considered commercial rather than residential. [71-3-531; JTL Group, Inc. v. New Outlook, LLP, 355 Mont. 1, 223 P.3d 912 (Mont.,2010)] NOTE, HOWEVER, that while a preliminary notice may not be required on a commercial project, it is strongly recommended that one be given in every case.
NOTE that if a subcontractor has not been paid, the sub may give the owner a written request for notification of any subsequent payments the owner makes. If this written request is given, then the owner is required to notify the subcontractor of a progress payment or final payment given to the general contractor. There are no specific time, content or delivery specifications set out for this notice. [28-2-2103]
NOTE that where the claimant is paid for the services or materials that are the subject of the preliminary notice, the claimant must file a release of the notice. If the payment is pursuant to a real estate improvement contract, the claimant must release the claim within 5 business days of the contracting owner’s request that the release be filed. The release must include the clerk and recorder’s file number of the preliminary notice, the date the notice was filed, and the name of the person to whom the notice was given. In addition, the release must be signed by the person who filed the preliminary notice, or someone authorized to sign on that person’s behalf. [71-3-538]
All suppliers of materials to subcontractors. [18-2-206]
-Clerk and recorder of county in which property is located. [71-3-531]
-Advisable to give to the construction lender as well, where there is one.
No later than 20 days after first delivery. If given later, IT ONLY COVERS MATERIALS, ETC., FURNISHED WITHIN THE 20 DAYS PRECEDING THE NOTICE, and thereafter. Note that notice given by personal delivery must be delivered within 20 days; notice given by certified mail is effective on the date on which the notice is mailed. For a project OTHER than owner-occupied residence, if payment is made by a lender with a security interest in the real property, notice must be given within 45 days of first delivery. If given later, IT ONLY COVERS MATERIALS, ETC., FURNISHED WITHIN THE 45 DAYS PRECEDING THE NOTICE, and thereafter [71-3-531]
Not later than 5 business days after notice given to owner.
NOTE: Must have valid preliminary notice on file in order to file lien. Preliminary notice is valid for 1 year from filing. To extend it for a second year, must file a notice of continuation before expiration, stating:
-Clerk and recorder’s file number of original notice
-Date original notice was filed
-Name of person to whom original notice was given.
-Continuation statement must be signed by the person who signed the original preliminary notice or someone authorized to sign on that person’s behalf. [71-3-531]
Notice must be received by the general contractor within 30 days after first delivery. [18-2-206]
-Statement that it is a notice of a right to claim a lien against real estate for services or materials furnished in connection with improvement of the real estate;
-Description sufficient to identify the real estate against which the lien may be claimed;
-Date of mailing;
-Name of person filing notice;
-Address and telephone number of person filing notice;
-Description of the services or materials provided;
-Signature of the person providing the notice. The copy filed with the clerk and recorder must be signed by the person filing the notice or by someone authorized to sign for the person filing the notice; and
-Please contact Levy von Beck and Associates for form information.
NOTE that if the claimant doesn’t have the property description, and the name and address of the owner, they can request this information from the contractor, who must provide it within 5 business days. [71-3-531, 71-3-532; Schor at §27.01[D]]
-That it is a notice of a right of action on the security ;
-That claimant giving the notice has begun supplying materials to project;
-The name of sub to whom delivered;
-Statement that contractor and its security will be held responsible for the unpaid price if the claimant is not paid. [18-2-206]
Delivered personally or sent by certified mail. If mailed, notice is effective on date mailed [71-3-531]. If personally delivered, need written acknowledgement of receipt from owner. [71-3-531]
COUNTY CLERK & RECORDER:
Filed. NOTE that the clerk and recorder can allow the notice to be filed electronically. A copy filed electronically must be electronically signed by the person filing the notice, or by someone authorized to sign for the person filing the notice. [71-3-531]
Delivered personally or sent by certified mail. Consequences of refusal of mail are not clear; recommend ensuring timely delivery. [18-2-206]
An interim notice is not required.
An interim notice is not required.
All claimants. [71-3-535]
NOTE that if a subcontractor has not been paid, the sub may give the owner a written request for notification of any subsequent payments the owner makes. If this written request is given, then the owner is required to notify the subcontractor of a progress payment or final payment given to the general contractor. There are no specific time, content or delivery specifications set out for this notice.
All claimants. [18-2-204]
-County clerk and recorder where property is located. [71-3-535]
Board, council, commission, trustee, officer or public body letting the contract. [18-2-204]
Received within 90 days after either the claimant’s last furnishing of labor or materials, or the filing by owner of notice of completion. (Notice MAY be allowed where it is timely sent but received after the deadline, but it is not recommended to risk it.) But NOTE that the notice cannot be given before the claimant has substantially completed furnishing the labor or materials, unless the claimant is prevented from fulfilling its obligations because of the fault of the owner or another person. This can be very difficult to prove, and depends on the facts of each case as to whether a claimant can stop work after non-payment of a progress payment, and still maintain their lien rights. [Schor at §27.01[E]; Gwynn v. Cummins, 144 P.3d 82 (Mont. 2006)] NOTE, HOWEVER, that there must be a valid preliminary notice or continuation statement on file with the clerk at the time the lien is filed. The preliminary notice is only good for one year from the date of filing, unless a continuation statement is filed. This statement must include the clerk and recorder’s file number of the original preliminary notice, the date when the original notice was filed, and the name of the person to whom the original notice was given. It must also be signed by the person who filed the original notice of the right to claim a lien or by a person authorized to sign for the person who filed the original notice. [71-3-535, 71-3-531]
Received within 90 days after completion of contract and acceptance of work. [18-2-204]
-Filed with county clerk and recorder. NOTE that the clerk and recorder may allow the notice to be filed electronically.
-Personal service or certified mail, return receipt requested, to owner. Consequences of refusal of mail are not clear; strongly recommend ensuring delivery. [71-3-534, 71-3-535]
Filed with contracting body. [18-2-204]
(a) The name and address of claimant;
(b) Description of the real property sufficient to identify it;
(c) Name of the contracting owner and the name of the person who entered into the contract to improve the real property;
(d) Name and address of the party with whom claimant contracted;
(e) Description of the services or materials provided;
(f) The amount unpaid for services or materials or, if no amount is fixed by the contract, a good faith estimate of the amount unpaid, designated as an estimate;
(g) First and last dates on which the services or materials were furnished (estimate the last date if it has not yet occurred); and
(h) A declaration that a notice of a right to claim a lien was given and the date on which it was given to the contracting owner, or an explanation of why the notice was not required.
Please contact Levy von Beck and Associates for form information.
-Lien filed must also have attached a certification stating that each owner of record has been served and the manner of service. It is not required that owner has already received copy at time of filing. [71-3-534, 71-3-535]
Please contact Levy von Beck and Associates for form information. Note that the notice is to be signed by the person or corporation making the claim or giving the notice, thus the claimant itself should sign the document. [18-2-204]
Within two years after filing lien. [71-3-562] If the owner files a bond before the claimant serves its complaint or within 30 days thereafter, then the claimant may bring his or her suit against the bond. All time deadlines remain the same as they would if no bond was filed. [71-553]
Note that a contractor is entitled to interest on a payment where it is more than 30 days late, and must pass on the appropriate share of the interest to a subcontractor, if the subcontractor’s payment is also delayed. Note, however, that acceptance of the final payment releases any claim for interest. [28-2-2104]
Note that, starting 10/1/13, before or after a lien is created, the parties can agree to enter into arbitration. A lien release bond can still be filed, and the parties can still go to arbitration after a bond is filed, if they agree to do so. [71-3-564]
No specific provision, therefore obtain a copy of the bond, because the bond itself can set a time limit, often within one year after final payment. [Schor at §27.02[D]]