TITLE 45

LIENS, MORTGAGES AND PLEDGES

CHAPTER 8

MISCELLANEOUS LIENS

45-811.  nonconsensual common law liens prohibited. (1) For purposes of this section, "nonconsensual common law lien" means a lien that:

(a)  Is not provided for by a specific state or federal statute;

(b)  Does not depend upon the consent of the owner of the property affected for its existence;

(c)  Is not a court-imposed equitable, judgment or constructive lien; and

(d)  Is not of a kind commonly used in legitimate commercial transactions.

(2)  Nonconsensual common law liens are hereby prohibited. The state of Idaho shall not recognize or enforce nonconsensual common law liens. Provided however, that if a county clerk or other recording officer accepts for filing or recording a claim of a nonconsensual common law lien, the clerk or officer shall not be penalized or be liable for such filing or recording.

(3)  Petition to release and complaint for penalties.

(a)  A person whose real or personal property is subject to a recorded claim of a nonconsensual common law lien may at any time petition the district court of the county in which the claim has been recorded for an order releasing the claim. The petition, which may be heard ex parte, shall be heard as soon as practicable by the court. If it appears from the content of the lien that the lien is a nonconsensual common law lien, the court shall issue an order to the lienor to appear at a date not sooner than fifteen (15) days after the order is made, nor later than thirty (30) days, at which time the lienor must show cause why the claim of lien should not be released. If the lienor does not appear or if the showing of cause is insufficient, the court shall issue an order releasing the claim of lien. If good cause is shown by the lienor that the lien is not a nonconsensual common law lien and has a valid basis, the matter shall be set for further proceedings to determine the validity of the lien.

(b)  A complaint for penalties and other relief awarded pursuant to subsection (4) of this section may be filed separately or in conjunction with a petition filed under paragraph (a) of this subsection, but such complaint may not be filed any later than ninety (90) days after the hearing on the court’s order to show cause as provided in paragraph (a) of this subsection.

(c)  The filing fee for a petition filed pursuant to paragraph (a) of this subsection shall be thirty-five dollars ($35.00). The filing fee for a complaint filed pursuant to paragraph (b) of this subsection shall be prescribed by court rule.

(4)  Penalties.

(a)  Any person who files or records in the office of a county clerk or recorder, or with the secretary of state, any document attempting to create a nonconsensual common law lien against real or personal property, and who has refused or failed to withdraw such document upon written request by the owner of the property, shall be liable to the owner for the sum of not less than five thousand dollars ($5,000) or for actual damage caused thereby, whichever is greater, together with any court costs and reasonable attorney’s fees.

(b)  Any lienor or other person claiming interest in property under a recorded nonconsensual common law lien against real or personal property who has refused or failed to record a release or disclaimer of interest in such property upon written request by the owner of the property shall be liable to the owner for the damages, court costs and attorney’s fees provided in paragraph (a) of this subsection.

History:

[45-811, added 2016, ch. 170, sec. 2, p. 471.]