Statutory Liens

ORS 87.035
Perfecting lien

  • filing claim of lien
  • contents of claim


(1)

Every person claiming a lien created under ORS 87.010 (Construction liens) (1) or (2) shall perfect the lien not later than 75 days after the person has ceased to provide labor, rent equipment or furnish materials or 75 days after completion of construction, whichever is earlier. Every other person claiming a lien created under ORS 87.010 (Construction liens) shall perfect the lien not later than 75 days after the completion of construction. All liens claimed shall be perfected as provided by subsections (2) to (4) of this section.

(2)

A lien created under ORS 87.010 (Construction liens) shall be perfected by filing a claim of lien with the recording officer of the county or counties in which the improvement, or some part thereof, is situated.

(3)

A claim of lien shall contain:

(a)

A true statement of demand, after deducting all just credits and offsets;

(b)

The name of the owner, or reputed owner, if known;

(c)

The name of the person by whom the claimant was employed or to whom the claimant furnished the materials or rented the equipment or by whom contributions are owed; and

(d)

A description of the property to be charged with the lien sufficient for identification, including the address if known.

(4)

The claim of lien shall be verified by the oath of the person filing or of some other person having knowledge of the facts, subject to the criminal penalties for false swearing provided under ORS 162.075 (False swearing). [Amended by 1961 c.609 §1; 1973 c.671 §3; 1975 c.466 §10; 1983 c.517 §1; 1985 c.596 §1; 1987 c.662 §6]

Notes of Decisions

In General

"Credits and offsets" include only amounts between subcontractor and general or prime contractor and do not include amounts between lienor and third party. Jersey & Son Inc. v. Bailey Const. Co., 262 Or 491, 499 P2d 817 (1972)

Property owners were not entitled to rely on labeling of items in lien claim where item description did not mislead property owners as to amount of valid lien. Myers v. Oregon Shores Associates, 69 Or App 624, 687 P2d 159 (1984), Sup Ct review denied

Time for Filing Generally

When builder, after substantial completion of structure, at request of owner, makes additions to it which are useful or necessary to its enjoyment, the final completion dates from time such additions are made. Farrell v. Lacey, 264 Or 505, 507 P2d 31 (1973)

Even though owner in fee of property may be subject to a lien unless he posts notice of nonliability under ORS 87.030, the lien, to be valid, must still be filed within time required by this section. Maddox v. Balboa Raceways, Inc., 267 Or 321, 516 P2d 1293 (1973)

Where improvements must necessarily be used as a unit and all are intended to be immediately constructed, temporary interruptions beyond the control of the owner or builder, will not interrupt or terminate the time within which to file mechanic's liens. Tri-City Bldg. Center, Inc. v. Wagner, 274 Or 581, 548 P2d 961 (1976)

Where evidence showed construction project was abandoned, the 60-day time period for filing a lien under this section would start to run 60 days after work ceased. D.E.C. Eng. and Surveying v. G & J Invest., 57 Or App 742, 646 P2d 643 (1982)

Performance of repair work under warranty did not extend time for filing lien claim. Central Coast Electric v. Mendell, 66 Or App 42, 672 P2d 1224 (1983)

If owner or mortgagee elects to post and record notice of completion as provided in ORS 87.045, date of notice is determinative of completion date within the meaning of this section. Star Rentals, Inc. v. Seeberg Construction Co., 66 Or App 822, 677 P2d 708 (1984), Sup Ct review denied

Construction was completed when pump was repaired and reinstalled because of laborer's contention that continuing malfunctions of pump were due to problems with well itself and not with pump and time for filing lien began at that point. Austin v. Carver, 85 Or App 529, 737 P2d 639 (1987)

Limitation period for filing began running on date contractor ceased working on project without regard to whether or not project was abandoned. Emmert Industrial Corp. v. Sanders, 131 Or App 113, 883 P2d 1304 (1994), Sup Ct review denied

Who Are Original Contractors

"An original contractor" is one who furnishes labor or material and labor on contract direct with owner. Maddox v. Balboa Raceways, Inc., 267 Or 321, 516 P2d 1293 (1973)

One who furnishes labor and materials on contract direct with a lessee from owner, but not direct with owner, may be "original contractor" with respect to validity of its lien against the lessee from owner, but is not an "original contractor" with respect to validity of its lien against owner. Maddox v. Balboa Raceways, Inc., 267 Or 321, 516 P2d 1293 (1973)

Description of Property

Where description of property in lien notice incorrectly stated address and tax lot number and referred to business establishment on property by incorrect name, but contained sufficient information to enable interested parties to identify property and no prejudice was shown, there was substantial compliance with this section and lien was valid. C-3 Builders, Inc. v. Krueger, 56 Or App 502, 642 P2d 344 (1982), Sup Ct review denied

Use of word "description" by this section does not mean lien claim must contain legal description of property covered by lien. C-3 Builders, Inc. v. Krueger, 56 Or App 502, 642 P2d 344 (1982), Sup Ct review denied

Description requirement of general recordation statute does not apply to construction lien. Bell Hardware v. Ed Szoyka Woodworking Co., 129 Or App 332, 879 P2d 208 (1994), Sup Ct review denied

Whether there has been substantial compliance with statutory requirement depends on degree of noncompliance, underlying policy of requirement and prejudice that property owner or third party may have suffered as result of noncompliance. C-3 Builders, Inc. v. Krueger, 56 Or App 502, 642 P2d 344 (1982), Sup Ct review denied; Tigard Sand & Gravel Co. v. LBH Construction, 149 Or App 131, 941 P2d 1075 (1997)

Atty. Gen. Opinions

Enforcement by subcontractor of lien rights against of residence owner where prime contractor has failed to give proper notice or has been paid in full but failed to pay subcontractor, (1981) Vol 42, p 149

Law Review Citations

41 WLR 95 (2005)

§§ 87.001 to 87.060

Notes of Decisions

In absence of express waiver by contractor of right to file construction lien, agreement to arbitrate disputes did not prevent filing of lien and thereafter foreclosing to recover unpaid amounts and costs and attorney fees incurred in preparation, filing and foreclosure of lien claim. Harris v. Dyer, 50 Or App 223, 623 P2d 662 (1981), as modified by 292 Or 233, 637 P2d 918 (1981)


Source

Last accessed
Jun. 26, 2021