(as
published in the Western Business Journal)
Several steps must be taken to insure that the construction lien, once created, can be enforced. Under Montana law, a construction lien does not "attach" and may not be enforced unless the party claiming the lien (the "lien claimant") has filed the lien with the local county clerk and recorder, no later than 90-days after either: (a) the final furnishing of services or materials; or (b) the owner of the property files a "notice of completion" pursuant to Montana law. There is an exception to this 90 day rule. If the lien claimant is performing additional work, which is done to enhance the property, not merely additional insubstantial work, then the 90-day limit for filing a lien may begin at that point.
The lien claimant must certify to the county clerk and recorder that a copy of the lien has been served on the owners of record of the property named in the lien. The law further provides that a lien notice that is filed before the person claiming the lien has substantially furnished services or materials is not effective to create a construction lien, unless the lien claimant is prevented from fulfilling his obligation because of the fault of another person.
Generally, a lien attaches at the commencement of work, which is defined as "the date of the first visible change in the physical condition of the real estate caused by the first person furnishing services or materials pursuant to a particular real estate improvement contract."
If the lien claimant has fulfilled the statutory requirements and the lien attaches, one way to remove the lien is to substitute a bond for the lien. The contracting owner may, at any time before the lien claimant has commenced an action to foreclose the lien, file a bond with the clerk of district court. The lien claimant can still bring an action upon the bond, but it must be commenced in the time allowed for commencement of an action upon foreclosure of a lien, and the statute of limitations for a lien foreclosure still apply (two years from the date of filing the action).
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