2013 North Dakota Century Code Title 35 Liens Chapter 35-35 Nonconsensual Common-Law Liens
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CHAPTER 35-35
NONCONSENSUAL COMMON-LAW LIENS
35-35-01. Definitions.
1. "Filing officer" includes a county recorder, the secretary of state, and any other
government employee who is required in the course of the employee's duties to file or
record liens.
2. "Nonconsensual common-law lien" means a document that purports to assert a lien
against real or personal property of any person and:
a. Is not expressly provided for by a specific state or federal statute;
b. Does not depend upon the consent of the owner of the property affected; and
c. Is not an equitable or constructive lien imposed by a state or federal court of
competent jurisdiction.
35-35-02. Nonconsensual lien unlawful - Penalty.
1. Any person who submits for filing or recording a nonconsensual common-law lien as
defined in this chapter is guilty of a class B misdemeanor.
2. This section does not apply to a filing officer who acts in the course of the employee's
official duties in filing or recording an instrument submitted to the employee for filing or
recording.
35-35-03. (Effective through July 31, 2015, or see note) Filing officer may reject lien Filing officer to accept notice of invalid lien - Filing officer not liable.
1. Any filing officer may reject for filing or recording any nonconsensual common-law lien.
2. If a nonconsensual common-law lien has been accepted for filing or recording, the
filing officer shall accept for filing any sworn notice of invalid lien signed and submitted
by the person against whom such a lien was filed or that person's attorney. The notice
must be captioned "Notice of Invalid Lien" and must state the name and address of the
person on whose behalf the notice is filed, the name and address of the lien claimant,
and a clear reference to the document or documents the person believes constitute a
nonconsensual common-law lien. The notice must be filed in such a manner that any
search of the records which reveals the lien the notice refers to will also reveal the
notice of invalid lien. The filing officer shall mail a copy of the notice of invalid lien to
the lien claimant at the lien claimant's last-known address within one business day.
3. A filing officer, county, or the state may not be held liable for filing a nonconsensual
common-law lien, or for filing a sworn notice of invalid lien pursuant to this section.
(Effective after July 31, 2015, or see note) Filing officer may reject lien - Filing officer
to accept notice of invalid lien - Filing officer not liable.
1. Any filing officer may reject for filing or recording any nonconsensual common-law lien.
2. If a nonconsensual common-law lien has been accepted for filing or recording, the
filing officer shall accept for filing any notice of invalid lien submitted electronically by
the person against whom such a lien was filed or that person's attorney. The notice
must be captioned "Notice of Invalid Lien" and must state the name and address of the
person on whose behalf the notice is filed, the name and address of the lien claimant,
and a clear reference to the document or documents the person believes constitute a
nonconsensual common-law lien. The notice must be filed in such a manner that any
search of the records which reveals the lien the notice refers to will also reveal the
notice of invalid lien. The filing officer shall mail or deliver electronically a copy of the
notice of invalid lien to the lien claimant at the lien claimant's last-known address within
one business day.
3. A filing officer, county, or the state may not be held liable for filing a nonconsensual
common-law lien, or for filing a notice of invalid lien pursuant to this section.
4. A fee may not be charged for the filing of a notice of invalid lien against a filed
nonconsensual common-law lien.
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35-35-04. Lien claimant may petition court - Procedure - Order to show cause Remedies - Order to be filed.
1. Any person who submits for filing or recording a lien against real or personal property
which is rejected by the filing officer as a nonconsensual common-law lien may petition
the district court of the county in which the document was rejected for an order
directing the filing officer to file or record the document pending a hearing on whether
the document constitutes a nonconsensual common-law lien. The order may be
granted ex parte. The lien claimant, as petitioner, shall appear at a time scheduled by
the court and show cause why the document should not be declared a nonconsensual
common-law lien with no legal effect and relief as provided in section 35-35-06 granted
to the person against whom the document was attempted to be filed.
2. The petition must state the grounds upon which relief is sought and must be supported
by the affidavit of the petitioner or the petitioner's attorney setting forth a concise
statement of the facts upon which the claim for relief is based.
3. Any order rendered under this section must clearly state that if the lien claimant fails to
appear at the time and place noted in the order, the document must be declared a
nonconsensual common-law lien with no legal effect and the lien claimant must be
ordered to pay damages to the person against whom the document was attempted to
be filed in the amount of one thousand dollars or actual damages, whichever is
greater, and costs, including reasonable attorney's fees.
4. If, after a hearing on the matter, the court determines that the document is a
nonconsensual common-law lien, the court shall issue an order so declaring, and
declaring the document to have no legal effect and awarding damages as provided in
section 35-35-06 to the person against whom the document was attempted to be filed.
5. If the court determines that the document is not a nonconsensual common-law lien,
the court shall issue an order so stating and may award costs and reasonable
attorney's fees to the prevailing party.
6. The district court clerk shall file a copy of any order rendered pursuant to this section
in the office of the filing officer who rejected the document for filing.
35-35-05. Petition to declare lien invalid - Procedure - Order to show cause Remedies - Order to be filed.
1. Any person who has real or personal property or an interest therein, which is subject to
a filed or recorded nonconsensual common-law lien may petition the district court for
the county in which the lien is filed or recorded for an order directing the lien claimant
to appear before the court to show cause why the lien should not be declared void and
the relief provided for by section 35-35-06 granted to the petitioner. The order directing
the lien claimant to appear and show cause may be granted ex parte. The petitioner
shall serve the order and petition on the lien claimant by personal service or by mailing
copies of the petition and order to the lien claimant at the lien claimant's last-known
address.
2. The petition must state the grounds upon which relief is requested, and must be
supported by the affidavit of the petitioner, or the petitioner's attorney, setting forth a
concise statement of the facts upon which the claim for relief is based.
3. Any order rendered under this section must clearly state that if the lien claimant fails to
appear at the time and place noted in the order, the lien must be declared void ab initio
and released and removed from the filing officer's files or records, and the lien
claimant must be ordered to pay damages of one thousand dollars or actual damages,
whichever is greater, and the costs incurred by the petitioner, including reasonable
attorney's fees.
4. If, after a hearing on the matter, the court determines that the document is a
nonconsensual common-law lien, the court shall issue an order declaring the lien void
ab initio, directing the filing officer to release and remove the lien from the files and
records and awarding damages as provided in section 35-35-06 to the petitioner.
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5.
6.
If the court determines that the lien is not a nonconsensual common-law lien, the court
shall issue an order so stating and may award costs and reasonable attorney's fees to
the prevailing party.
The district court clerk shall file a copy of any order rendered pursuant to this section
in the office where the lien was filed.
35-35-06. Liability for submitting certain documents for filing - Penalty.
Any person who submits for filing or recording to the office of a filing officer any document
purporting to create a nonconsensual common-law lien against real or personal property is
liable to the person against whom the lien is claimed for actual damages or one thousand
dollars, whichever is greater, plus costs and reasonable attorney's fees. These damages and
costs may be awarded in any action brought under section 35-35-04 or 35-35-05 or in a
separate action for damages.
Page No. 3
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