35-35 Nonconsensual Common-Law Liens
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<![CDATA[CHAPTER 35-35NONCONSENSUAL COMMON-LAW LIENS35-35-01. Definitions.1."Filing officer" includes a county recorder, the secretary of state, and any other<br>government employee who is required in the course of the employee's duties to file<br>or record liens.2."Nonconsensual common-law lien" means a document that purports to assert a lien<br>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; andc.Is not an equitable or constructive lien imposed by a state or federal court of<br>competent jurisdiction.35-35-02. Nonconsensual lien unlawful - Penalty.1.Any person who submits for filing or recording a nonconsensual common-law lien as<br>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<br>employee's official duties in filing or recording an instrument submitted to the<br>employee for filing or recording.35-35-03. 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<br>lien.2.If a nonconsensual common-law lien has been accepted for filing or recording, the<br>filing officer shall accept for filing any sworn notice of invalid lien signed and<br>submitted by the person against whom such a lien was filed or that person's<br>attorney. The notice must be captioned "Notice of Invalid Lien" and must state the<br>name and address of the person on whose behalf the notice is filed, the name and<br>address of the lien claimant, and a clear reference to the document or documents<br>the person believes constitute a nonconsensual common-law lien. The notice must<br>be filed in such a manner that any search of the records which reveals the lien the<br>notice refers to will also reveal the notice of invalid lien. The filing officer shall mail a<br>copy of the notice of invalid lien to the lien claimant at the lien claimant's last-known<br>address within one business day.3.A filing officer, county, or the state may not be held liable for filing a nonconsensual<br>common-law lien, or for filing a sworn notice of invalid lien pursuant to this section.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<br>property which is rejected by the filing officer as a nonconsensual common-law lien<br>may petition the district court of the county in which the document was rejected for<br>an order directing the filing officer to file or record the document pending a hearing<br>on whether the document constitutes a nonconsensual common-law lien. The order<br>may be granted ex parte. The lien claimant, as petitioner, shall appear at a timePage No. 1scheduled by the court and show cause why the document should not be declared a<br>nonconsensual common-law lien with no legal effect and relief as provided in section<br>35-35-06 granted to the person against whom the document was attempted to be<br>filed.2.The petition must state the grounds upon which relief is sought and must be<br>supported by the affidavit of the petitioner or the petitioner's attorney setting forth a<br>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<br>to appear at the time and place noted in the order, the document must be declared a<br>nonconsensual common-law lien with no legal effect and the lien claimant must be<br>ordered to pay damages to the person against whom the document was attempted<br>to be filed in the amount of one thousand dollars or actual damages, whichever is<br>greater, and costs, including reasonable attorney's fees.4.If, after a hearing on the matter, the court determines that the document is a<br>nonconsensual common-law lien, the court shall issue an order so declaring, and<br>declaring the document to have no legal effect and awarding damages as provided<br>in section 35-35-06 to the person against whom the document was attempted to be<br>filed.5.If the court determines that the document is not a nonconsensual common-law lien,<br>the court shall issue an order so stating and may award costs and reasonable<br>attorney's fees to the prevailing party.6.The district court clerk shall file a copy of any order rendered pursuant to this section<br>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<br>to a filed or recorded nonconsensual common-law lien may petition the district court<br>for the county in which the lien is filed or recorded for an order directing the lien<br>claimant to appear before the court to show cause why the lien should not be<br>declared void and the relief provided for by section 35-35-06 granted to the<br>petitioner. The order directing the lien claimant to appear and show cause may be<br>granted ex parte.The petitioner shall serve the order and petition on the lienclaimant by personal service or by mailing copies of the petition and order to the lien<br>claimant at the lien claimant's last-known address.2.The petition must state the grounds upon which relief is requested, and must be<br>supported by the affidavit of the petitioner, or the petitioner's attorney, setting forth a<br>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<br>to appear at the time and place noted in the order, the lien must be declared void ab<br>initio and released and removed from the filing officer's files or records, and the lien<br>claimant must be ordered to pay damages of one thousand dollars or actual<br>damages, whichever is greater, and the costs incurred by the petitioner, including<br>reasonable attorney's fees.4.If, after a hearing on the matter, the court determines that the document is a<br>nonconsensual common-law lien, the court shall issue an order declaring the lien<br>void ab initio, directing the filing officer to release and remove the lien from the files<br>and records and awarding damages as provided in section 35-35-06 to the<br>petitioner.Page No. 25.If the court determines that the lien is not a nonconsensual common-law lien, the<br>court shall issue an order so stating and may award costs and reasonable attorney's<br>fees to the prevailing party.6.The district court clerk shall file a copy of any order rendered pursuant to this section<br>in the office where the lien was filed.35-35-06. Liability for submitting certain documents for filing - Penalty. Any personwho submits for filing or recording to the office of a filing officer any document purporting to<br>create a nonconsensual common-law lien against real or personal property is liable to the person<br>against whom the lien is claimed for actual damages or one thousand dollars, whichever is<br>greater, plus costs and reasonable attorney's fees. These damages and costs may be awarded<br>in any action brought under section 35-35-04 or 35-35-05 or in a separate action for damages.Page No. 3Document Outlinechapter 35-35 nonconsensual common-law liens]]>