S.B. 206
Senate Bill No. 206–Committee on Judiciary
February 25, 2003
____________
Referred to Committee on Judiciary
SUMMARY—Makes various changes to provisions relating to mechanics’ and materialmen’s liens. (BDR 9‑755)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State: No.
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EXPLANATION
– Matter in bolded italics is new; matter
between brackets [omitted material] is material to be omitted.
Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).
AN ACT relating to liens; prohibiting the waiver or modification of rights relating to mechanics’ and materialmen’s liens except under certain circumstances; prohibiting certain provisions in a contract for a work of improvement; making various changes to the provisions relating to mechanics’ and materialmen’s liens; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
1-1 Section 1. Chapter 108 of NRS is hereby amended by adding
1-2 thereto the provisions set forth as sections 2 to 26, inclusive, of this
1-3 act.
1-4 Sec. 2. “Agent of the owner” means every architect, builder,
1-5 contractor, engineer, geologist, land surveyor, lessee, miner,
1-6 subcontractor or other person having charge or control of the
1-7 property, improvement or work of improvement of the owner, or
1-8 any part thereof.
1-9 Sec. 3. “Building” means a primary building or other
1-10 superstructure, together with all garages, outbuildings and other
1-11 structures appurtenant thereto.
1-12 Sec. 4. “Commencement of construction” means the date on
1-13 which:
1-14 1. Work performed; or
2-1 2. Materials or equipment furnished in connection with a
2-2 work of improvement,
2-3 is visible from a reasonable inspection of the site.
2-4 Sec. 5. “Completion of the work of improvement” means:
2-5 1. The occupation or use by the owner, an agent of the owner
2-6 or a representative of the owner of the work of improvement,
2-7 accompanied by the cessation of all work on the work of
2-8 improvement;
2-9 2. The acceptance by the owner, an agent of the owner or a
2-10 representative of the owner of the work of improvement,
2-11 accompanied by the cessation of work on the work of
2-12 improvement; or
2-13 3. The cessation of all work on a work of improvement for 30
2-14 consecutive days, provided a notice of completion is timely
2-15 recorded and served and the work is not resumed under the same
2-16 contract.
2-17 Sec. 6. “Contract” means a written or oral agreement,
2-18 including all attachments and amendments thereto, for the
2-19 provision of work, materials or equipment for a work of
2-20 improvement.
2-21 Sec. 7. “Disinterested owner” means an owner who did not
2-22 personally or through his agent or representative, directly or
2-23 indirectly, request, require, authorize, consent to or cause a work
2-24 of improvement, or any portion thereof, to be constructed, altered
2-25 or repaired upon the property of the owner.
2-26 Sec. 8. “Equipment” means tools, machinery and vehicles,
2-27 furnished or rented, which are used or to be used in the
2-28 construction, alteration or repair of a work of improvement at the
2-29 request of the owner or an agent of the owner.
2-30 Sec. 9. “Improvement” means the development,
2-31 enhancement or addition to property, by the provision of work,
2-32 materials or equipment. The term includes, without limitation:
2-33 1. A building, railway, tramway, toll road, canal, water ditch,
2-34 flume, aqueduct, reservoir, bridge, fence, street, sidewalk, fixtures
2-35 or other structure or superstructure;
2-36 2. A mine or a shaft, tunnel, adit or other excavation,
2-37 designed or used to prospect, drain or work a mine;
2-38 3. A system for irrigation, plants, sod or other landscaping;
2-39 4. The demolition or removal of existing improvements, trees
2-40 or other vegetation;
2-41 5. The drilling of test holes;
2-42 6. Grading, grubbing, filling or excavating;
2-43 7. Constructing or installing sewers or other public utilities;
2-44 and
3-1 8. Constructing a vault, cellar or room under sidewalks or
3-2 making improvements to the sidewalks in front of or adjoining the
3-3 property.
3-4 Sec. 10. “Lien” means the statutory rights and security
3-5 interest in property or any improvements thereon provided to a
3-6 lien claimant by NRS 108.221 to 108.246, inclusive, and sections 2
3-7 to 26, inclusive, of this act.
3-8 Sec. 11. “Lienable amount” means the principal amount of a
3-9 lien to which a lien claimant is entitled pursuant to subsection 1 of
3-10 NRS 108.222.
3-11 Sec. 12. “Lien claimant” means any person who provides
3-12 work, material or equipment with a value of $500 or more to be
3-13 used in or for the construction, alteration or repair of any
3-14 improvement, property or work of improvement. The term
3-15 includes, without limitation, every artisan, builder, contractor,
3-16 laborer, lessor or renter of equipment, materialman, miner,
3-17 subcontractor or other person who provides work, material or
3-18 equipment, and any person who performs services as an architect,
3-19 engineer, land surveyor or geologist, in relation to the
3-20 improvement, property or work of improvement.
3-21 Sec. 13. “Material” means appliances, equipment,
3-22 machinery and substances affixed, used, consumed or
3-23 incorporated in the improvement of property or the construction,
3-24 alteration or repair of any improvement, property or work of
3-25 improvement.
3-26 Sec. 14. 1. “Owner” includes:
3-27 (a) The record owner or owners of the property or an
3-28 improvement to the property as evidenced by a conveyance or
3-29 other instrument which transfers that interest to him and is
3-30 recorded in the office of the county recorder in which the
3-31 improvement or the property is located;
3-32 (b) The reputed owner or owners of the property or an
3-33 improvement to the property;
3-34 (c) The owner or owners of the property or an improvement to
3-35 the property, as shown on the records of the county assessor for
3-36 the county where the property or improvement is located;
3-37 (d) The person or persons whose name appears as owner of
3-38 the property or an improvement to the property on the building
3-39 permit; or
3-40 (e) A person who claims an interest in or possesses less than a
3-41 fee simple estate in the property.
3-42 2. The term does not include:
3-43 (a) A mortgagee;
3-44 (b) A trustee or beneficiary of a deed of trust; or
4-1 (c) The owner or holder of a lien encumbering the property or
4-2 an improvement to the property.
4-3 Sec. 15. “Notice of lien” means a notice recorded pursuant
4-4 to NRS 108.226 to perfect a lien.
4-5 Sec. 16. “Prevailing lien claimant” means a lien claimant to
4-6 whom an amount is found due by a trier of fact on a notice of lien
4-7 or a claim against a surety bond.
4-8 Sec. 17. “Prime contract” means a contract between a prime
4-9 contractor and the owner of property about which the contract
4-10 relates.
4-11 Sec. 18. “Prime contractor” means a person who contracts
4-12 with an owner of property to provide work, materials or equipment
4-13 to be used for the improvement of the property or in the
4-14 construction, alteration or repair of a work of improvement.
4-15 Sec. 19. “Principal,” as pertaining to a surety bond, means
4-16 the debtor of the lien claimant or a party in interest in the property
4-17 subject to the lien whose name and signature appear as principal
4-18 on a surety bond.
4-19 Sec. 20. “Property” means the land, real property or mining
4-20 claim of an owner for which a work of improvement was provided,
4-21 including all buildings, improvements and fixtures thereon, and a
4-22 convenient space on, around and about the same, or so much as
4-23 may be required for the convenient use and occupation thereof.
4-24 Sec. 21. “Surety” means a corporation authorized to transact
4-25 surety business in this state pursuant to NRS 679A.030 that:
4-26 1. Is included in the United States Department of the
4-27 Treasury’s Listing of Approved Sureties; and
4-28 2. Issues a surety bond pursuant to NRS 108.2413 to
4-29 108.2425, inclusive, that does not exceed the underwriting
4-30 limitations established for that surety by the United States
4-31 Department of the Treasury.
4-32 Sec. 22. “Surety bond” means a bond issued by a surety for
4-33 the release of a lien pursuant to NRS 108.2413 to 108.2425,
4-34 inclusive.
4-35 Sec. 23. “Work” means the labor and services provided by a
4-36 lien claimant for the construction, alteration or repair of any
4-37 improvement, property or work of improvement whether the work
4-38 is completed or partially completed.
4-39 Sec. 24. “Work of improvement” means the entire structure
4-40 or scheme of improvement as a whole, including, without
4-41 limitation, all work, materials and equipment to be used in or for
4-42 the construction, alteration or repair of the property or any
4-43 improvement thereon, whether under multiple prime contracts or
4-44 a single prime contract except as follows:
5-1 1. If a scheme of improvement consists of the construction of
5-2 two or more separate buildings and each building is constructed
5-3 upon a separate legal parcel of land and pursuant to a separate
5-4 prime contract for only that building, then each building shall be
5-5 deemed a separate work of improvement; and
5-6 2. If the improvement of the site is provided for in a prime
5-7 contract that is separate from all prime contracts for the
5-8 construction of one or more buildings on the property, and if the
5-9 improvement of the site was contemplated by the contracts to be a
5-10 separate work of improvement to be completed before the
5-11 commencement of construction of the buildings, the improvement
5-12 of the site shall be deemed a separate work of improvement from
5-13 the construction of the buildings and the commencement of
5-14 construction of the improvement of the site does not constitute the
5-15 commencement of construction of the buildings. As used in this
5-16 subsection, “improvement of the site” means the development or
5-17 enhancement of the property, preparatory to the commencement
5-18 of construction of a building, and includes:
5-19 (a) The demolition or removal of improvements, trees or other
5-20 vegetation;
5-21 (b) The drilling of test holes;
5-22 (c) Grading, grubbing, filling or excavating;
5-23 (d) Constructing or installing sewers or other public utilities;
5-24 or
5-25 (e) Constructing a vault, cellar or room under sidewalks or
5-26 making improvements to the sidewalks in front of or adjoining the
5-27 property.
5-28 Sec. 25. 1. Except as otherwise provided in NRS 108.221 to
5-29 108.246, inclusive, and sections 2 to 26, inclusive, of this act, a
5-30 person may not waive or modify a right, obligation or liability set
5-31 forth in the provisions of NRS 108.221 to 108.246, inclusive, and
5-32 sections 2 to 26, inclusive, of this act.
5-33 2. A condition, stipulation or provision in a contract or other
5-34 agreement for the improvement of property or for the
5-35 construction, alteration or repair of a work of improvement in this
5-36 state that attempts to do any of the following is void:
5-37 (a) Require a lien claimant to waive rights provided by law to
5-38 lien claimants or to limit the rights provided to lien claimants,
5-39 other than as expressly provided in NRS 108.221 to 108.246,
5-40 inclusive, and sections 2 to 26, inclusive, of this act;
5-41 (b) Relieve a person of an obligation or liability imposed by the
5-42 provisions of NRS 108.221 to 108.246, inclusive, and sections 2 to
5-43 26, inclusive, of this act;
5-44 (c) Make the contract or other agreement subject to the laws of
5-45 a state other than this state;
6-1 (d) Require any litigation, arbitration or other process for
6-2 dispute resolution on disputes arising out of the contract or other
6-3 agreement to occur in a state other than this state; or
6-4 (e) Require a contractor or subcontractor to waive a claim the
6-5 contractor or subcontractor may otherwise possess for delay
6-6 damages or an extension of time for delays incurred, for any delay
6-7 which was unreasonable under the circumstances, not within the
6-8 contemplation of the parties at the time the contract was entered
6-9 into, and for which the contractor or subcontractor is not
6-10 responsible.
6-11 Sec. 26. 1. Any term of a contract that attempts to waive or
6-12 impair the lien rights of a contractor, subcontractor or supplier is
6-13 void. An owner, contractor or subcontractor by any term of a
6-14 contract, or otherwise, may not obtain the waiver of, or impair the
6-15 lien rights of, a contractor, subcontractor or supplier, except as
6-16 provided in this section. Any written consent given by a lien
6-17 claimant that waives or limits his lien rights is unenforceable
6-18 unless the lien claimant:
6-19 (a) Executes and delivers a waiver and release that is signed by
6-20 the lien claimant or his authorized agent in the form set forth in
6-21 this section; or
6-22 (b) In the case of a conditional waiver and release, receives
6-23 payment of the amount identified in the conditional waiver and
6-24 release.
6-25 2. An oral or written statement purporting to waive, release or
6-26 otherwise adversely affect the rights of a lien claimant is not
6-27 enforceable and does not create any estoppel or impairment of a
6-28 lien unless:
6-29 (a) There is a written waiver and release in the form set forth
6-30 in this section;
6-31 (b) The lien claimant received payment for the lien claim and
6-32 then only to the extent of the payment; or
6-33 (c) Payment has been made to the lien claimant and another
6-34 joint payee by way of a two-party joint check which, upon
6-35 endorsement by the lien claimant and the joint check clearing the
6-36 bank upon which it is drawn, shall be deemed to be payment to the
6-37 lien claimant of:
6-38 (1) The amount of the joint check;
6-39 (2) The amount the owner intended to pay the lien claimant
6-40 out of the joint check; or
6-41 (3) The balance owed to the lien claimant for the work and
6-42 materials covered by the joint check, whichever is less.
6-43 3. This section does not affect the enforceability of either an
6-44 accord and satisfaction regarding a bona fide dispute or any
6-45 agreement made in settlement of an action pending in any court or
7-1 arbitration, provided the accord and satisfaction or settlement
7-2 make specific reference to the lien rights waived or impaired and
7-3 is in a writing signed by the lien claimant.
7-4 4. The waiver and release given by any lien claimant is
7-5 unenforceable unless it is in the following forms in the following
7-6 circumstances:
7-7 (a) Where the lien claimant is required to execute a waiver and
7-8 release in exchange for or to induce the payment of a progress
7-9 billing and the lien claimant is not in fact paid in exchange for the
7-10 waiver and release or a single payee check or joint payee check is
7-11 given in exchange for the waiver and release, the waiver and
7-12 release must be in the following form:
7-13 CONDITIONAL WAIVER AND RELEASE
7-14 UPON PROGRESS PAYMENT
7-15 Property Name:................................................
7-16 Property Location:...........................................
7-17 Undersigned’s Customer:...............................
7-18 Invoice/Payment Application Number:.........
7-19 Payment Amount:............................................
7-20 Payment Period:...............................................
7-21 Upon receipt by the undersigned of a check in the above
7-22 referenced Payment Amount payable to the undersigned, and
7-23 when the check has been properly endorsed and has been paid by
7-24 the bank on which it is drawn, this document becomes effective to
7-25 release and the undersigned shall be deemed to waive any notice
7-26 of lien, any private bond right, any claim for payment and any
7-27 rights under any similar ordinance, rule or statute related to
7-28 payment rights that the undersigned has on the above described
7-29 Property to the following extent:
7-30 This release covers a progress payment for all work, materials
7-31 or equipment furnished by the undersigned to the Property or to
7-32 the Undersigned’s Customer, for only the Payment Amount or
7-33 such portion of the Payment Amount as the undersigned is
7-34 actually paid, and does not cover any retention withheld, any
7-35 items, modifications or changes pending approval, disputed items
7-36 and claims, or items furnished or invoiced after the Payment
7-37 Period. Before any recipient of this document relies on it, he
7-38 should verify evidence of payment to the undersigned. The
7-39 undersigned warrants that he either has already paid or will use
7-40 the money he receives from this progress payment promptly to pay
7-41 in full all his laborers, subcontractors, materialmen and suppliers
7-42 for all work, materials or equipment that are the subject of this
7-43 waiver and release.
8-1 Dated:..................
8-2 ...........................
8-3 (Company Name)
8-4 By:.....................
8-5 Its:.....................
8-6 (b) Where the lien claimant has been paid in full or a part of
8-7 the amount provided for in the progress billing, the waiver and
8-8 release of the amount paid must be in the following form:
8-9 UNCONDITIONAL WAIVER AND RELEASE
8-10 UPON PROGRESS PAYMENT
8-11 Property Name:................................................
8-12 Property Location:...........................................
8-13 Undersigned’s Customer:...............................
8-14 Invoice/Payment Application Number:.........
8-15 Payment Amount:............................................
8-16 Payment Period:...............................................
8-17 The undersigned has been paid and has received a progress
8-18 payment in the above referenced Payment Amount for all work,
8-19 materials and equipment the undersigned furnished to his
8-20 Customer for all the above described Property and does hereby
8-21 waive and release any notice of lien, any private bond right, any
8-22 claim for payment and any rights under any similar ordinance,
8-23 rule or statute related to payment rights that the undersigned has
8-24 on the above described Property to the following extent:
8-25 This release covers a progress payment for all work, materials
8-26 and equipment furnished by the undersigned to the Property or to
8-27 the Undersigned’s Customer, for only the Payment Amount or
8-28 such portion of the Payment Amount as the undersigned is
8-29 actually paid, and does not cover any retention withheld, any
8-30 items, modifications or changes pending approval, disputed items
8-31 and claims, or items furnished or invoiced after the Payment
8-32 Period. The undersigned warrants that he either has already paid
8-33 or will use the money he receives from this progress payment
8-34 promptly to pay in full all his laborers, subcontractors,
8-35 materialmen and suppliers for all work, materials or equipment
8-36 that are the subject of this waiver and release.
8-37 Dated:.................
9-1 ...........................
9-2 (Company Name)
9-3 By:.....................
9-4 Its:.....................
9-5 (Each unconditional waiver and release must contain the
9-6 following language, in type at least as large as the largest type
9-7 otherwise on the document:)
9-8 Notice: This document waives rights unconditionally and states
9-9 that you have been paid for giving up those rights. This document
9-10 is enforceable against you if you sign it to the extent of the
9-11 Payment Amount or the amount received. If you have not been
9-12 paid, use a conditional release form.
9-13 (c) Where the lien claimant is required to execute a waiver and
9-14 release in exchange for or to induce payment of a final billing
9-15 and the lien claimant is not paid in exchange for the waiver and
9-16 release or a single payee check or joint payee check is given in
9-17 exchange for the waiver and release, the waiver and release must
9-18 be in the following form:
9-19 CONDITIONAL WAIVER AND RELEASE
9-20 UPON FINAL PAYMENT
9-21 Property Name:................................................
9-22 Property Location:...........................................
9-23 Undersigned’s Customer:...............................
9-24 Invoice/Payment Application Number:.........
9-25 Payment Amount:............................................
9-26 Payment Period:...............................................
9-27 Amount of Disputed Claims:..........................
9-28 Upon receipt by the undersigned of a check in the above
9-29 referenced Payment Amount payable to the undersigned, and
9-30 when the check has been properly endorsed and has been paid by
9-31 the bank on which it is drawn, this document becomes effective to
9-32 release and the undersigned shall be deemed to waive any notice
9-33 of lien, any private bond right, any claim for payment and any
9-34 rights under any similar ordinance, rule or statute related to
9-35 payment rights that the undersigned has on the above described
9-36 Property to the following extent:
9-37 This release covers the final payment to the undersigned for all
9-38 work, materials or equipment furnished by the undersigned to the
10-1 Property or to the Undersigned’s Customer and does not cover
10-2 payment for Disputed Claims, if any. Before any recipient of this
10-3 document relies on it, he should verify evidence of payment to the
10-4 undersigned. The undersigned warrants that he either has already
10-5 paid or will use the money he receives from the final payment
10-6 promptly to pay in full all his laborers, subcontractors,
10-7 materialmen and suppliers for all work, materials or equipment
10-8 that are the subject of this waiver and release.
10-9 Dated:.................
10-10 ...........................
10-11 (Company Name)
10-12 By:.....................
10-13 Its:.....................
10-14 (d) Where the lien claimant has been paid the final billing, the
10-15 waiver and release must be in the following form:
10-16 UNCONDITIONAL WAIVER AND RELEASE
10-17 UPON FINAL PAYMENT
10-18 Property Name:...............................................
10-19 Property Location:..........................................
10-20 Undersigned’s Customer:..............................
10-21 Invoice/Payment Application Number:........
10-22 Payment Amount:...........................................
10-23 Amount of Disputed Claims:.........................
10-24 The undersigned has been paid in full for all work, materials
10-25 and equipment furnished to his Customer for the above described
10-26 Property and does hereby waive and release any notice of lien, any
10-27 private bond right, any claim for payment and any rights under
10-28 any similar ordinance, rule or statute related to payment rights
10-29 that the undersigned has on the above described Property, except
10-30 for the payment of Disputed Claims, if any, noted above. The
10-31 undersigned warrants that he either has already paid or will use
10-32 the money he receives from this final payment promptly to pay in
10-33 full all his laborers, subcontractors, materialmen and suppliers for
10-34 all work, materials and equipment that are the subject of this
10-35 waiver and release.
10-36 Dated:................
11-1 ...........................
11-2 (Company Name)
11-3 By:.....................
11-4 Its:.....................
11-5 (Each unconditional waiver and release must contain the
11-6 following language, in type at least as large as the largest type
11-7 otherwise on the document:)
11-8 Notice: This document waives rights unconditionally and states
11-9 that you have been paid for giving up those rights. This document
11-10 is enforceable against you if you sign it, even if you have not been
11-11 paid. If you have not been paid, use a conditional release form.
11-12 (e) Notwithstanding any language in any waiver and release
11-13 form set forth in this section, if the payment given in exchange for
11-14 any waiver and release of lien is made by check, draft or other
11-15 such negotiable instrument, and the same fails to clear the bank
11-16 on which it is drawn for any reason, then the waiver and release
11-17 shall be deemed null, void and of no legal effect whatsoever and
11-18 all liens, lien rights, bond rights, contract rights or any other right
11-19 to recover payment afforded to the lien claimant in law or equity
11-20 will not be affected by the lien claimant’s execution of the waiver
11-21 and release.
11-22 Sec. 27. NRS 108.221 is hereby amended to read as follows:
11-23 108.221 As used in NRS 108.221 to 108.246, inclusive, and
11-24 sections 2 to 26, inclusive, of this act, unless the context otherwise
11-25 requires, [“work of improvement” or “improvement” means the
11-26 entire structure or scheme of improvement as a whole.] the words
11-27 and terms defined in sections 2 to 24, inclusive, of this act have the
11-28 meanings ascribed to them in those sections.
11-29 Sec. 28. NRS 108.222 is hereby amended to read as follows:
11-30 108.222 1. Except as otherwise provided in subsection 2, a
11-31 [person who performs labor upon or furnishes material of the value
11-32 of $500 or more, to be used in the construction, alteration or repair
11-33 of any building, or other superstructure, railway, tramway, toll road,
11-34 canal, water ditch, flume, aqueduct or reservoir, bridge, fence or any
11-35 other structure,] lien claimant has a lien upon the [premises and any
11-36 building, structure and improvement thereon] property and any
11-37 improvements for which the work and materials were furnished
11-38 for:
11-39 (a) If the parties entered into a contract, the unpaid balance of
11-40 the price agreed upon for[; or
12-1 (b) In absence of] the work performed and the material and
12-2 equipment furnished or rented, as the case may be, whether
12-3 performed or furnished at the instance of the owner or his agent;
12-4 or
12-5 (b) If a specific price for some or all the work, material or
12-6 equipment is not set forth in a contract, an amount equal to the fair
12-7 market value of,
12-8 the [labor performed or] work performed and the material and
12-9 equipment furnished or rented, as the case may be, by [each
12-10 respectively,] the lien claimant, including a reasonable allowance
12-11 for overhead and a profit, whether performed or furnished at the
12-12 instance of the owner [of the building or other improvement,] or at
12-13 the instance of his agent.
12-14 2. If a [license is required for the work, only a contractor
12-15 licensed pursuant to chapter 624 of NRS, an employee of such a
12-16 contractor or a person who furnishes material to be used in the
12-17 project may have a lien as described in subsection 1.
12-18 3. All miners, laborers and others who perform labor to the
12-19 amount of $500 or more in or upon any mine, or upon any shaft,
12-20 tunnel, adit or other excavation, designed or used to prospect, drain
12-21 or work the mine, and all persons who furnish any timber or other
12-22 material, of the value of $500 or more, to be used in or about a
12-23 mine, whether performed or furnished at the instance of the owner
12-24 of the mine or his agent, have, and may each respectively claim and
12-25 hold, a lien upon that mine for:
12-26 (a) If the parties entered into a contract, the unpaid balance of
12-27 the price agreed upon for; or
12-28 (b) In absence of a contract, an amount equal to the fair market
12-29 value of,
12-30 the labor so performed or material furnished, including a reasonable
12-31 allowance for overhead and a profit.
12-32 4. Every contractor, subcontractor, engineer, land surveyor,
12-33 geologist, architect, builder or other person having charge or control
12-34 of any mining claim, or any part thereof, or of the construction,
12-35 alteration or repair, either in whole or in part, of any building or
12-36 other improvement, as these terms are used in subsection 1, shall be
12-37 held to be the agent of the owner, for the purposes of NRS 108.221
12-38 to 108.246, inclusive.] contractor or a professional is required to
12-39 be licensed pursuant the provisions of NRS to perform his work,
12-40 the contractor or professional will only have a lien pursuant to
12-41 subsection 1 if he is licensed to perform the work.
12-42 Sec. 29. NRS 108.225 is hereby amended to read as follows:
12-43 108.225 1. The liens provided for in NRS 108.221 to
12-44 108.246, inclusive, and sections 2 to 26, inclusive, of this act are
12-45 preferred to:
13-1 (a) Any lien, mortgage or other encumbrance which may have
13-2 attached to the property after the [time when the building,
13-3 improvement or structure was commenced, work done, or materials
13-4 were commenced to be furnished.] commencement of construction
13-5 of a work of improvement.
13-6 (b) Any lien, mortgage or other encumbrance of which the
13-7 [lienholder] lien claimant had no notice and which was unrecorded
13-8 against the property at the [time the building, improvement or
13-9 structure was commenced, work done, or the materials were
13-10 commenced to be furnished.
13-11 For the purposes of this subsection, “work done” does not include
13-12 any work commenced before on-site construction has started.
13-13 2. Except as otherwise provided in subsection 3, every]
13-14 commencement of construction of a work of improvement.
13-15 2. Every mortgage or encumbrance imposed upon, or
13-16 conveyance made of, property affected by the liens provided for in
13-17 NRS 108.221 to 108.246, inclusive, [between the time when the
13-18 building, improvement, structure or work thereon was commenced,
13-19 or the materials thereof were commenced to be furnished, and the
13-20 expiration of the time fixed in NRS 108.221 to 108.246, inclusive,
13-21 in which liens therefor may be recorded, whatever the terms of
13-22 payment may be,] and sections 2 to 26, inclusive, of this act after
13-23 the commencement of construction of a work of improvement are
13-24 subordinate and subject to the liens [in full authorized] provided for
13-25 in NRS 108.221 to 108.246, inclusive, and sections 2 to 26,
13-26 inclusive, of this act regardless of the date of recording the notices
13-27 of liens.
13-28 [3. If any improvement at the site is provided for in a contract
13-29 that is separate from any contract for the construction of a building
13-30 or other structure, the improvement at the site shall be deemed a
13-31 separate work of improvement and the commencement thereof does
13-32 not constitute the commencement of the construction of the building
13-33 or other structure. As used in this subsection, “improvement at the
13-34 site” means:
13-35 (a) The demolition or removal of improvements, trees or other
13-36 vegetation from;
13-37 (b) The drilling of test holes in;
13-38 (c) Grading, filling or otherwise improving; or
13-39 (d) Constructing or installing sewers or other public utilities
13-40 on,
13-41 any lot or tract of land or the street, highway or sidewalk in front of
13-42 or adjoining any lot or tract of land. The term includes the
13-43 construction of any vaults, cellars or rooms under the sidewalks or
13-44 making improvements to the sidewalks in front of or adjoining any
13-45 tract of land.]
14-1 Sec. 30. NRS 108.226 is hereby amended to read as follows:
14-2 108.226 1. [Every person claiming the benefit of NRS
14-3 108.221 to 108.246, inclusive,] To perfect his lien, a lien claimant
14-4 must record his notice of lien in the office of the county recorder of
14-5 the county where the property or some part thereof is located in
14-6 the form provided in subsection 5:
14-7 (a) Within 90 days after the date on which the latest of the
14-8 following occurs:
14-9 (1) The completion of the work of improvement;
14-10 [(b) Within 90 days after the]
14-11 (2) The last delivery of material or furnishing of equipment
14-12 by the lien claimant[; or
14-13 (c) Within 90 days after the] for the work of improvement; or
14-14 (3) The last performance of [labor] work by the lien
14-15 claimant[,
14-16 whichever is later.
14-17 2. The time within which to perfect the lien by recording the
14-18 notice of lien is shortened if a] for the work of improvement; or
14-19 (b) Within 40 days after the recording of a valid notice of
14-20 completion, if the notice of completion is recorded [in a timely] and
14-21 served in the manner required pursuant to NRS 108.228 . [, in
14-22 which event the notice of lien must be recorded within 40 days after
14-23 the recording of the notice of completion.
14-24 3. Any one of the following acts or events is equivalent to
14-25 “completion of the work of improvement” for all purposes of NRS
14-26 108.221 to 108.246, inclusive:
14-27 (a) The occupation or use of a building, improvement or
14-28 structure by the owner, his agent or his representative and
14-29 accompanied by cessation of labor thereon.
14-30 (b) The acceptance by the owner, his agent or his representative
14-31 of the building, improvement or structure.
14-32 (c) The cessation from labor for 30 days upon any building,
14-33 improvement or structure, or the alteration, addition to or repair
14-34 thereof.
14-35 (d) The recording of the notice of completion provided in
14-36 NRS 108.228.
14-37 4. For the purposes of this section, if a work of improvement
14-38 consists of the construction of more than one separate building and
14-39 each building is constructed pursuant to:
14-40 (a) A separate contract, each building shall be deemed a separate
14-41 work of improvement. The time within which to perfect the lien by
14-42 recording the notice of lien pursuant to subsection 1 commences to
14-43 run upon the completion of each separate building; or
14-44 (b) A single contract, the time within which to perfect the lien
14-45 by recording the notice of lien pursuant to subsection 1 commences
15-1 to run upon the completion of all the buildings constructed pursuant
15-2 to that contract.
15-3 As used in this subsection, “separate building” means one structure
15-4 of a work of improvement and any garages or other outbuildings
15-5 appurtenant thereto.
15-6 5.] 2. The notice of [mechanic’s lien must be recorded in the
15-7 office of the county recorder of the county where the property or
15-8 some part thereof is situated and] lien must contain:
15-9 (a) A statement of [his demand] the lienable amount after
15-10 deducting all just credits and offsets.
15-11 (b) The name of the owner [or reputed owner] if known.
15-12 (c) The name of the person by whom he was employed or to
15-13 whom he furnished the material.
15-14 (d) A brief statement of the terms[, time given and conditions]
15-15 of payment of his contract.
15-16 (e) A description of the property to be charged with the notice of
15-17 lien sufficient for identification.
15-18 [6. The claim]
15-19 3. The notice of lien must be verified by the oath of the
15-20 claimant or some other person. The [claim] notice of lien need not
15-21 be acknowledged to be recorded.
15-22 [7.] 4. It is unlawful for a person knowingly to make a false
15-23 statement in or relating to the recording of a notice of lien pursuant
15-24 to the provisions of this section. A person who violates this
15-25 subsection is guilty of a gross misdemeanor and shall be punished
15-26 by a fine of not less than $5,000 nor more than $10,000.
15-27 5. A notice of lien must be substantially in the following
15-28 form:
15-29 NOTICE OF LIEN
15-30 The undersigned claims a lien upon the property described in this
15-31 notice for work, materials or equipment furnished for the
15-32 improvement of the property:
15-33 1. The amount of the original contract is: $..
15-34 2. The total amount of all change orders, if any, is: $
15-35 3. The total amount of all payments received to date is: $
15-36 4. The amount of the lien, after deducting all just credits and
15-37 offsets, is: $......................................................
15-38 5. The name of the owner, if known, of the property is:
15-39 6. The name of the person by whom the lien claimant was
15-40 employed or to whom the lien claimant furnished work, materials
15-41 or equipment is: ..............................................
16-1 7. A brief statement of the terms of payment of the lien
16-2 claimant’s contract is: ....................................
16-3 ............................................................................
16-4 8. A description of the property to be charged with the lien is:
16-5 ........................................
16-6 (Print Name of Lien Claimant)
16-7 By:....................................
16-8 (Authorized Signature)
16-9 State of ................... )
16-10 ) ss.
16-11 County of ............... )
16-12 ....................... (print name), being first duly sworn on
16-13 oath according to law, deposes and says:
16-14 I have read the foregoing Notice of Lien, know the contents
16-15 thereof and state that the same is true of my own personal
16-16 knowledge, except those matters stated upon information and
16-17 belief, and, as to those matters, I believe them to be true.
16-18 .................................................
16-19 (Authorized Signature of Lien Claimant)
16-20 Subscribed and sworn to before me
16-21 this . day of the month of .... of the year ....
16-22 ........................................................
16-23 Notary Public in and for
16-24 the County and State
16-25 6. If a work of improvement involves the construction,
16-26 alteration or repair of multifamily or single-family residences, a
16-27 lien claimant, except laborers, must serve a 15-day notice of intent
16-28 to lien incorporating substantially the same information required
16-29 in a notice of lien upon both the owner and the prime contractor
16-30 before recording a notice of lien. Service of the notice of intent to
16-31 lien must be by personal delivery or certified mail and will extend
16-32 the time for recording the notice of lien described in subsection 1
16-33 by 15 days. A notice of lien for materials or equipment furnished
16-34 or for work or services performed, except labor, for a work of
16-35 improvement involving the construction, alteration or repair of
16-36 multifamily or single-family residences may not be perfected or
16-37 enforced pursuant to NRS 108.221 to 108.246, inclusive, and
16-38 sections 2 to 26, inclusive, of this act, unless the 15-day notice of
16-39 intent to lien has been given.
17-1 Sec. 31. NRS 108.227 is hereby amended to read as follows:
17-2 108.227 1. In addition to the requirements of NRS 108.226, a
17-3 copy of the [claim] notice of lien must be served upon the [record]
17-4 owner of the property within 30 days after recording the notice of
17-5 lien, in one of the following ways:
17-6 (a) By personally delivering a copy of the notice of lien to the
17-7 [record owner personally;
17-8 (b) If he is absent from his place of residence, or from his usual
17-9 place of business, by leaving a copy with some person of suitable
17-10 age and discretion at either place and mailing a copy addressed to
17-11 the record owner at his place of residence or place of business; or
17-12 (c) If his] owner or resident agent of the owner;
17-13 (b) By mailing a copy of the notice of lien by certified mail
17-14 return receipt requested to the owner at his place of resident or his
17-15 usual place of business or to the resident agent of the owner at the
17-16 address of the resident agent; or
17-17 (c) If the place of residence or business of the owner and the
17-18 address of the resident agent of the owner, if applicable, cannot be
17-19 [ascertained, or a person of suitable age or discretion cannot be
17-20 found there,] determined, by:
17-21 (1) Fixing a copy of the notice of lien in a conspicuous place
17-22 on the property;
17-23 (2) Delivering a copy of the notice of lien to a person there
17-24 residing, if such a person can be found; and
17-25 (3) Mailing a copy of the notice of lien addressed to the
17-26 [record] owner at [the] :
17-27 (I) The place where the property is [situated.
17-28 2. Failure] located;
17-29 (II) The address of the owner as identified in the deed;
17-30 (III) The address identified in the records of the office
17-31 of the county assessor; or
17-32 (IV) The address identified in the records of the county
17-33 recorder of the county in which the property is located.
17-34 2. If there is more than one owner, failure to serve a copy of
17-35 the [claim] notice of lien upon a particular [record] owner does not
17-36 invalidate a [claim based on a valid service] notice of lien if
17-37 properly served upon another [record] owner.
17-38 3. [As used in this section, “record owner” means any person
17-39 who holds an interest in real property or any improvement thereon
17-40 evidenced by a conveyance or other instrument which transfers that
17-41 interest to him and is recorded in the office of the county recorder of
17-42 the county in which the real property is located, but does not
17-43 include:
17-44 (a) A mortgagee;
17-45 (b) A trustee under, or a beneficiary of, a deed of trust; or
18-1 (c) The owner or holder of a lien encumbering real property or
18-2 any improvement thereon.] Each subcontractor who participates in
18-3 the construction, improvement, alteration or repair of a work of
18-4 improvement shall deliver a copy of each notice of lien required by
18-5 NRS 108.226 to the prime contractor. The failure of a
18-6 subcontractor to deliver the notice to the prime contractor is a
18-7 ground for disciplinary proceedings pursuant to chapter 624 of
18-8 NRS.
18-9 Sec. 32. NRS 108.2275 is hereby amended to read as follows:
18-10 108.2275 1. The debtor of the lien claimant or a party in
18-11 interest in the [premises] property subject to the notice of lien who
18-12 believes the notice of lien is frivolous and was made without
18-13 reasonable cause, or that the amount of the lien is excessive, may
18-14 apply by motion to the district court for the county where the
18-15 property or some part thereof is [situated] located for an order
18-16 directing the lien claimant to appear before the court to show cause
18-17 why the relief requested should not be granted.
18-18 2. The motion must [set] :
18-19 (a) Set forth in detail the legal and factual grounds upon which
18-20 relief is requested ; and [must be]
18-21 (b) Be supported by [the affidavit of] :
18-22 (1) A notarized affidavit signed by the applicant [or his
18-23 attorney] setting forth a concise statement of the facts upon which
18-24 the motion is based[.] ; and
18-25 (2) Documentary evidence in support of the affidavit, if
18-26 any.
18-27 3. If the court issues an order for a hearing, the applicant shall
18-28 serve notice of the application and order of the court on the lien
18-29 claimant within 3 days after the court issues the order. The court
18-30 shall conduct the hearing within not less than [10] 15 days or more
18-31 than [20] 30 days after the court issues the order[.
18-32 2.] for a hearing.
18-33 4. The order for a hearing must include a statement that if the
18-34 lien claimant fails to appear at the time and place noted, the notice
18-35 of lien will be released with prejudice and the lien claimant will be
18-36 ordered to pay the reasonable costs [requested by] the applicant[,
18-37 including reasonable attorney’s fees.
18-38 3.] incurs in bringing the motion, including reasonable
18-39 attorney’s fees.
18-40 5. If, at the time the application is filed, an action to foreclose
18-41 the notice of lien has not been filed, the clerk of the court shall
18-42 assign a number to the application and obtain from the applicant a
18-43 filing fee of $85. If an action has been filed to foreclose the notice
18-44 of lien before the application was filed pursuant to this section, the
19-1 application must be made a part of the action to foreclose the notice
19-2 of lien.
19-3 [4.] 6. If, after a hearing on the matter, the court determines
19-4 that:
19-5 (a) The notice of lien is frivolous and was made without
19-6 reasonable cause, the court [may] shall make an order releasing the
19-7 lien and awarding costs and reasonable attorney’s fees to the
19-8 applicant[.] for bringing the motion.
19-9 (b) The amount of the notice of lien is excessive, the court may
19-10 make an order reducing the notice of lien to an amount deemed
19-11 appropriate by the court and awarding costs and reasonable
19-12 attorney’s fees to the applicant[.] for bringing the motion.
19-13 (c) The notice of lien is not frivolous and was made with
19-14 reasonable cause [and] or that the amount of the notice of lien is not
19-15 excessive, the court [may] shall make an order awarding costs and
19-16 reasonable attorney’s fees to the lien claimant[.
19-17 5.] for defending the motion.
19-18 7. Proceedings conducted pursuant to this section do not affect
19-19 any other rights and remedies otherwise available to the parties.
19-20 [6.] 8. An appeal may be taken [by either party] from an order
19-21 made pursuant to subsection [4.] 6.
19-22 [7.] 9. If an order releasing or reducing a notice of lien is
19-23 entered by the court, and the order is not stayed, the [lien claimant
19-24 shall, within 2] applicant may, within 5 days after the order is
19-25 entered, record a certified copy of the order in the office of the
19-26 county recorder of the county where the property or some part
19-27 thereof is [situated.] located. The recording of a certified copy of the
19-28 order releasing or reducing a notice of lien is notice to any
19-29 interested party that the notice of lien has been released or reduced.
19-30 Sec. 33. NRS 108.228 is hereby amended to read as follows:
19-31 108.228 1. The owner may record a notice of completion
19-32 after[:
19-33 (a) The] the completion of [any] the work of improvement . [; or
19-34 (b) There has been a cessation from labor thereon for a period of
19-35 30 days.]
19-36 2. The notice of completion must be recorded in the office of
19-37 the county recorder of the county where the property is [situated]
19-38 located and must set forth:
19-39 (a) The date [when the work of improvement was completed, or
19-40 the date on which cessation from labor occurred first and the period
19-41 of its duration.] of completion of the work of improvement.
19-42 (b) The owner’s name or owners’ names, as the case may be, the
19-43 address of the owner or addresses of the owners, as the case may be,
19-44 and the nature of the title, if any, of the person signing the notice.
19-45 (c) A description of the property sufficient for identification.
20-1 (d) The name of the prime contractor[,] or names of the prime
20-2 contractors, if any.
20-3 3. The notice must be verified by the owner or by some other
20-4 person on his behalf. The notice need not be acknowledged to be
20-5 recorded.
20-6 4. Upon recording the notice pursuant to this section, the owner
20-7 shall, within 10 days after the notice is recorded, deliver a copy of
20-8 the notice by certified mail, to:
20-9 (a) [Any general] Each prime contractor with whom the owner
20-10 contracted for all or part of the work of improvement.
20-11 (b) [Any person] Each potential lien claimant who, before the
20-12 notice was recorded pursuant to this section, either submitted a
20-13 request to the owner to receive the notice[.] or delivered a
20-14 preliminary notice of right to lien pursuant to NRS 108.245.
20-15 5. The failure of the owner to deliver a copy of the notice of
20-16 completion in the time and manner provided in this section
20-17 renders the notice of completion ineffective with respect to each
20-18 prime contractor and lien claimant to whom a copy was required
20-19 to be delivered pursuant to subsection 4.
20-20 Sec. 34. NRS 108.229 is hereby amended to read as follows:
20-21 108.229 1. At any time before or during the trial of any
20-22 action to foreclose a lien, a lien claimant may record an amended
20-23 notice of lien to correct or clarify his notice of lien. The lien
20-24 claimant shall serve the owner of the property with an amended
20-25 notice of lien in the same manner as required for serving a notice
20-26 of lien pursuant to NRS 108.227 and within 30 days after
20-27 recording the amended notice of lien. A variance between a notice
20-28 of lien and an amended notice of lien does not defeat the lien and
20-29 shall not be deemed material unless the variance:
20-30 (a) Results from fraud or is made intentionally; or
20-31 (b) Misleads an adverse party to his prejudice, but then only
20-32 with respect to the adverse party who was prejudiced.
20-33 2. Upon the trial of any action or suit to foreclose [such lien
20-34 no] a lien, a variance between the lien and the proof [shall] does not
20-35 defeat the lien [or] and shall not be deemed material unless the
20-36 [same results] variance:
20-37 (a) Results from fraud or is made intentionally[, or has misled]
20-38 ; or
20-39 (b) Misleads the adverse party to his prejudice, but [in] then
20-40 only with respect to the adverse party who was prejudiced.
20-41 In all cases of immaterial variance the [claim] notice of lien may be
20-42 amended, by amendment duly recorded, to conform to the proof.
20-43 [2. No]
20-44 3. An error or mistake in the name of the owner [or reputed
20-45 owner] contained in any [claim] notice of lien [shall be held to] does
21-1 not defeat the lien, unless a correction of the notice of lien in [this] a
21-2 particular instance would prejudice the rights of an innocent bona
21-3 fide purchaser or encumbrancer for value[.
21-4 3.] , but then only with respect to the bona fide purchaser or
21-5 encumbrancer for value who was prejudiced.
21-6 4. Upon the trial, [however,] if it [shall appear] appears that an
21-7 error or mistake has been made in the name of the owner [or reputed
21-8 owner,] or that the wrong person has been named as owner [or
21-9 reputed owner] in any [such claim] notice of lien, the court shall
21-10 order an amended [claim] notice of lien to be recorded with the
21-11 county recorder where the original [claim] notice of lien was
21-12 recorded[,] and shall issue to the person who is so made to appear
21-13 to be the original [or reputed] owner a notice directing [such] the
21-14 person or persons to be and appear before the court within the same
21-15 time as is provided by Nevada Rules of Civil Procedure for the
21-16 appearance in other actions after the service of summons, which
21-17 notice [shall] must be served in all respects as a summons is
21-18 required to be served, and to show cause why:
21-19 (a) He should not be substituted[,] as the correct owner in the
21-20 [claim] notice of lien and in the suit, in lieu of the person so made
21-21 defendant and alleged to be owner [or reputed owner] by mistake.
21-22 (b) He should not be bound by the judgment or decree of the
21-23 court. Such proceedings [shall] must be had therein as though
21-24 the party so cited to appear had been an original party defendant in
21-25 the action or suit, and originally named in the [claim] notice of lien
21-26 as owner , [or reputed owner,] and the rights of all parties [shall]
21-27 must thereupon be fully adjudicated.
21-28 [4.] 5. A notice of lien which contains therein the description
21-29 of the [real] property supplied by and set forth in the notice of
21-30 completion recorded pursuant to NRS 108.228 [shall,] must, for all
21-31 purposes, be sufficient as a description of the actual [real] property
21-32 upon which the work [or labor] was performed or materials or
21-33 equipment were supplied , [;] and amendment of the notice of lien
21-34 [claim] or amendment of the pleading filed by the lien claimant in a
21-35 foreclosure action, or both, may be made to state the correct
21-36 description, and [such] the corrected description [shall relate]
21-37 relates back to the time of recording [such] the notice of lien ,
21-38 [claim,] unless a correction of the notice of lien in [this] a particular
21-39 instance would prejudice the rights of an innocent bona fide
21-40 purchaser or encumbrancer for value[.] , but then only with respect
21-41 to the bona fide purchaser or encumbrancer for value who was
21-42 prejudiced.
21-43 Sec. 35. NRS 108.231 is hereby amended to read as follows:
21-44 108.231 1. In every case in which [one claim] a notice of
21-45 lien is recorded against two or more separate buildings[,] or mining
22-1 claims [or other improvements owned by the same person, the
22-2 person recording such claim must at the same time designate] that
22-3 are owned by the same person and that are located on separate
22-4 legal parcels that existed at the commencement of construction,
22-5 the lien claimant must, at the time of recording the notice of lien,
22-6 designate the lienable amount due to him on each [of such
22-7 buildings, mining claims or other improvements; otherwise the lien
22-8 of such claim is postponed to other liens.] building or mining
22-9 claim.
22-10 2. The lien of [such claimant does not extend beyond] a lien
22-11 claimant only applies to the lienable amount designated[,] in the
22-12 notice of lien, plus all amounts that may be awarded by the court
22-13 pursuant to NRS 108.237, as against other creditors having liens by
22-14 judgment or otherwise, upon [either of such buildings or other
22-15 improvements, or upon the land upon which the same are
22-16 constructed.] the buildings or mining claims. However, the
22-17 lienable amount chargeable to the interest of the owner in each
22-18 building must be the total amount of the lien claimant’s notice of
22-19 lien, without regard to the proportionate amount designated to
22-20 each separate building in the lien claimant’s notice of lien, plus all
22-21 amounts that may be awarded by the court pursuant to NRS
22-22 108.237, but upon the trial thereof, the court may, where it deems
22-23 it equitable to do so, distribute the lien equitably as among the
22-24 several buildings involved.
22-25 3. If a lien claimant fails to designate in his notice of lien the
22-26 amount due to him on each separate building as provided in
22-27 subsection 1, the lien claimant’s notice of lien must be postponed
22-28 to the notices of lien of other lien claimants and other
22-29 encumbrancers for value who have designated the amount due on
22-30 each building or mining claim but must not be inferior to any
22-31 rights or interests of the owner. For purposes of this subsection, a
22-32 lien claimant’s lien must not be postponed to other liens or
22-33 encumbrances if the lien claimant’s designation among the
22-34 parcels was estimated by the lien claimant in good faith or was
22-35 based upon a pro rata division of the total lienable amount.
22-36 Sec. 36. NRS 108.232 is hereby amended to read as follows:
22-37 108.232 The county recorder of the county in which property
22-38 that is subject to a lien is located must record the [claim] notice of
22-39 lien in a book kept by him for that purpose, which record must be
22-40 indexed as deeds and other conveyances are required by law to be
22-41 indexed, and for which he may receive the same fees as are allowed
22-42 by law for recording deeds and other instruments.
22-43 Sec. 37. NRS 108.233 is hereby amended to read as follows:
22-44 108.233 1. [No] A lien provided for in NRS 108.221 to
22-45 108.246, inclusive, [binds any building, mining claim, improvement
23-1 or structure] and sections 2 to 26, inclusive, of this act must not
23-2 bind the property subject to the lien for a [longer] period longer
23-3 than 6 months after [such lien has been] the date on which the
23-4 notice of lien was recorded, unless:
23-5 (a) Proceedings are commenced in a proper court within that
23-6 time to enforce the same; or
23-7 (b) The time to commence the action is extended by a written
23-8 instrument signed by the [lienor] lien claimant and by a person or
23-9 persons in interest in the property subject to the lien, in which event,
23-10 and as to only that person or those persons in interest signing the
23-11 agreement, the time is extended , [;] but no extension [shall be] is
23-12 valid unless in writing and recorded in the county recorder’s office
23-13 in which the notice of lien is recorded and unless the extension
23-14 agreement is recorded within [such] the 6-month period . [; and
23-15 such] The extension agreement, to be recorded, must be
23-16 acknowledged as required by law for the acknowledgment of deeds.
23-17 An action may be commenced within [such] the extended time only
23-18 [as to] against the persons signing the extension agreement and only
23-19 as to their interests in the property are affected, and upon the lapse
23-20 of the time specified in the extension agreement, an action may not
23-21 thereafter be commenced, nor may a second extension be given.
23-22 2. For all purposes, a [mechanic’s lien of record] notice of lien
23-23 shall be deemed to have expired as a lien against the property after
23-24 the lapse of the 6-month period provided in subsection 1, and [such
23-25 recording shall] the recording of a notice of lien does not provide
23-26 actual or constructive notice after the lapse of [such] the 6-month
23-27 period and as a lien on the [real] property referred to in the
23-28 [recorded] notice of lien, unless, [prior to] before the lapse of [such]
23-29 the 6-month period [the] an extension agreement has been recorded,
23-30 in which event, the lien [shall] will only continue as a lien on the
23-31 interests of those persons signing the extension for the period
23-32 specified in the extension . [and for no longer period.] An extension
23-33 must not be given for a period in excess of 1 year beyond the date
23-34 on which the notice of lien is recorded.
23-35 3. If there are other [claims] notices of lien outstanding against
23-36 the property, [no extension shall] an extension must not be given
23-37 upon [the] a notice of lien which will tend to delay or postpone the
23-38 collection of other [claims] liens evidenced by a notice of lien or
23-39 encumbrances against the property . [; and no extension shall be
23-40 given for a period in excess of 1 year beyond the recording of the
23-41 lien.]
23-42 Sec. 38. NRS 108.234 is hereby amended to read as follows:
23-43 108.234 [Every building or other improvement mentioned in
23-44 NRS 108.222,]
24-1 1. Except as otherwise provided in subsection 2, every
24-2 improvement constructed , altered or repaired upon [any lands with
24-3 the knowledge of the owner or the person having or claiming any
24-4 interest therein,] property shall be [held] deemed to have been
24-5 constructed , altered or repaired at the instance of [the owner or
24-6 person] each owner having or claiming any interest therein, and the
24-7 interest owned or claimed [is] must be subject to [any] each notice
24-8 of lien recorded in accordance with the provisions of NRS 108.221
24-9 to 108.246, inclusive, [unless the owner or person having or
24-10 claiming an interest therein shall,] and sections 2 to 26, inclusive, of
24-11 this act.
24-12 2. The interest of a disinterested owner in any improvement
24-13 and the property upon which an improvement is constructed,
24-14 altered or repaired is not subject to a notice of lien if the
24-15 disinterested owner, within 3 days after he [has obtained] first
24-16 obtains knowledge of the construction, alteration or repair, or the
24-17 intended construction, alteration or repair, [give] gives notice that he
24-18 will not be responsible for the improvement by recording a notice in
24-19 writing to that effect with the county recorder of the county where
24-20 the [land or building is situated] property is located and, in the
24-21 instance of[:
24-22 1.] a disinterested owner who is:
24-23 (a) A lessor, the notice of [lien] nonresponsibility shall be
24-24 deemed timely recorded if the notice is recorded within 3 days
24-25 immediately following the [execution] effective date of the lease [by
24-26 all parties as to that construction, alteration or repair, or intended
24-27 construction, alteration or repair, known to the lessor at] or by the
24-28 time of the execution of the lease by all parties[.
24-29 2.] , whichever occurs first; or
24-30 (b) An optionor, the notice of [lien] nonresponsibility shall be
24-31 deemed timely recorded if the notice is recorded within 3 days
24-32 immediately following the [execution of the agreement permitting
24-33 entry upon the real property by all parties as to that construction,
24-34 alteration, repair, or intended construction, alteration, repair or other
24-35 work known to the optionor at the time of the execution of the
24-36 agreement by all parties.] date on which the option is exercised in
24-37 writing.
24-38 3. Each notice of nonresponsibility recorded pursuant to this
24-39 section must identify:
24-40 (a) The name and address of the owner;
24-41 (b) The location of the improvement and the property upon
24-42 which the improvement is or will be constructed, altered or
24-43 repaired;
25-1 (c) The nature and extent of the disinterested owner’s interest
25-2 in the improvement and the property upon which the improvement
25-3 is or will be constructed, altered or repaired; and
25-4 (d) The date on which the disinterested owner first learned of
25-5 the construction, alteration or repair of the improvement that is
25-6 the subject of the notice of nonresponsibility.
25-7 Sec. 39. NRS 108.235 is hereby amended to read as follows:
25-8 108.235 1. [The contractor shall be entitled to recover, upon
25-9 a lien recorded by him, only such] A prime contractor:
25-10 (a) Upon a notice of lien, may recover the lienable amount as
25-11 may be due to him [according to the terms of his contract, after
25-12 deducting all claims of other parties] , plus all amounts that may be
25-13 awarded to him by the court pursuant to NRS 108.237; and
25-14 (b) Upon receipt of the amount described in paragraph (a),
25-15 shall pay all liens for the work [done and material furnished,] ,
25-16 equipment or materials which were furnished to him as provided
25-17 in NRS 108.221 to 108.246, inclusive[.] , and sections 2 to 26,
25-18 inclusive, of this act.
25-19 2. In all cases where a prime contractor has been paid for the
25-20 work, materials or equipment which are the subject of a notice of
25-21 lien [is] recorded under NRS 108.221 to 108.246, inclusive, [for
25-22 work done or materials furnished to any contractor, he] and sections
25-23 2 to 26, inclusive, of this act, the prime contractor shall defend the
25-24 owner in any action brought thereupon at his own expense. [During
25-25 the pendency of the action,]
25-26 3. Except as otherwise provided in this subsection, if a lien
25-27 claimant records a notice of lien for the work, equipment or
25-28 materials furnished to the prime contractor, the owner may
25-29 withhold from the prime contractor the amount of money for which
25-30 [such] the lien claimant’s notice of lien is [filed.] recorded. If the
25-31 lien claimant’s notice of lien resulted from the owner’s failure to
25-32 pay the prime contractor for the lien claimant’s work, materials or
25-33 equipment, the owner shall not withhold the amount set forth in
25-34 the notice of lien from the prime contractor if the prime contractor
25-35 tenders a release of the lien claimant’s lien to the owner. In case of
25-36 judgment against the owner or his property [upon] which is the
25-37 subject of the lien, the owner [shall be entitled to] may deduct, from
25-38 any amount due or to become due by him to the prime contractor,
25-39 the amount [of the judgment and costs. If the amount of the
25-40 judgment and costs exceeds the amount due by him to the
25-41 contractor, or if the owner has settled with the contractor, the owner
25-42 shall be entitled to] paid by the owner to the lien claimant for
25-43 which the prime contractor was liable and recover back from the
25-44 prime contractor any amount so paid by the owner in excess of the
25-45 [contract price, and for which the contractor was originally the party
26-1 liable.] amount the court has found that the owner owes to the
26-2 prime contractor.
26-3 Sec. 40. NRS 108.236 is hereby amended to read as follows:
26-4 108.236 1. In every case in which different liens are asserted
26-5 against any property, the court, in the judgment, must declare the
26-6 rank of each lien[,] claimant or class of [liens, which must be] lien
26-7 claimants in the following order:
26-8 (a) First: All labor whether performed at the instance or
26-9 direction of the owner, the subcontractor or the [original] prime
26-10 contractor.
26-11 (b) Second: Material suppliers[.
26-12 Third: The subcontractors, architects, land surveyors, geologists
26-13 and engineers, if such architects, land surveyors, geologists and
26-14 engineers] and lessors of equipment.
26-15 (c) Third: All other lien claimants who have performed their
26-16 [services,] work, in whole or in part, under contract with the
26-17 [general contractor.
26-18 Fourth: The original contractors, architects, land surveyors,
26-19 geologists and engineers, if such architects, land surveyors,
26-20 geologists and engineers have not performed their services, in whole
26-21 or in part, under contract with the general contractor, and all persons
26-22 other than original contractors, subcontractors, architects, land
26-23 surveyors, geologists and engineers.] prime contractor or any
26-24 subcontractor.
26-25 (d) Fourth: All other lien claimants.
26-26 2. The proceeds of the sale of the property must be applied to
26-27 each lien[,] claimant or class of [liens,] lien claimants in the order
26-28 of its rank.
26-29 Sec. 41. NRS 108.237 is hereby amended to read as follows:
26-30 108.237 1. [Any number of persons claiming liens may join
26-31 in the same action. When separate actions are commenced the court
26-32 may consolidate them.] The court shall award to a prevailing lien
26-33 claimant, whether on its lien or on a surety bond, the lienable
26-34 amount found due to the lien claimant by the court and the cost of
26-35 preparing and filing the lien claim, including, without limitation,
26-36 attorney’s fees, if any, and interest. The court shall also award to
26-37 the prevailing lien claimant, whether on its lien or on a surety
26-38 bond, the costs of the proceedings, including, without limitation,
26-39 reasonable attorney’s fees, the costs for representation of the lien
26-40 claimant in the proceedings, and any other amounts as the court
26-41 may find to be justly due and owing to the lien claimant.
26-42 2. The court [may also allow] shall calculate interest for
26-43 purposes of subsection 1 based upon:
26-44 (a) The rate of interest agreed upon in the lien claimant’s
26-45 contract; or
27-1 (b) If a rate of interest is not provided in the lien claimant’s
27-2 contract, interest at a rate equal to the prime rate at the largest bank
27-3 in Nevada, as ascertained by the Commissioner of Financial
27-4 Institutions, on January 1 or July 1, as the case may be, immediately
27-5 preceding the date of judgment, plus 2 percent, on the amount of the
27-6 lien found payable. [The interest is payable from the date that the
27-7 payment is found to have been due, and the court may allow, as part
27-8 of the costs, the money paid for recording the lien.] The rate of
27-9 interest must be adjusted accordingly on each January 1 and July 1
27-10 thereafter until the amount of the lien is paid.
27-11 [3. The court shall also allow to the prevailing party reasonable
27-12 attorney’s fees for the preparation of the lien and for representation
27-13 of the lien claimant in the action.]
27-14 Interest is payable from the date on which the payment is found to
27-15 have been due, as determined by the court.
27-16 3. If the lien claim is not upheld, the court may award costs
27-17 and reasonable attorney’s fees to the owner.
27-18 Sec. 42. NRS 108.238 is hereby amended to read as follows:
27-19 108.238 [Nothing contained in] The provisions of NRS
27-20 108.221 to 108.246, inclusive, [shall] and sections 2 to 26,
27-21 inclusive, of this act must not be construed to impair or affect the
27-22 right of [any person] a lien claimant to whom any debt may be due
27-23 for work [done or material] , materials or equipment furnished to
27-24 maintain a [personal] civil action to recover [such] that debt against
27-25 the person liable therefor[.] or to submit any controversy arising
27-26 under a contract to arbitration to recover that amount.
27-27 Sec. 43. NRS 108.239 is hereby amended to read as follows:
27-28 108.239 1. [Liens] A notice of lien may be enforced by an
27-29 action in any court of competent jurisdiction, on setting out in the
27-30 complaint the particulars of the demand, with a description of the
27-31 [premises] property to be charged with the lien.
27-32 2. At the time of filing the complaint and issuing the summons,
27-33 the [plaintiff] lien claimant shall:
27-34 (a) File a notice of pendency of the action in the manner
27-35 provided in NRS 14.010; and
27-36 (b) Cause a notice of foreclosure to be published at least once a
27-37 week for 3 successive weeks, in one newspaper published in the
27-38 county, and if there is no newspaper published in the county, then in
27-39 such mode as the court may determine, notifying all persons holding
27-40 or claiming [liens] a notice of lien pursuant to the provisions of
27-41 NRS 108.221 to 108.246, inclusive, and sections 2 to 26, inclusive,
27-42 of this act on the [premises] property to file with the clerk and serve
27-43 on the [plaintiff] lien claimant and also on the defendant, if the
27-44 defendant is within the State or is represented by counsel, written
28-1 statements of the facts constituting their liens, together with the
28-2 dates and amounts thereof. [The statements must be filed]
28-3 3. All persons holding or claiming a notice of lien may join a
28-4 lien claimant’s action by filing a statement of facts within 10 days
28-5 after the last publication of the notice[. The plaintiff] of
28-6 foreclosure. Any number of persons claiming liens may join in the
28-7 same action if they timely file a statement of facts in the lien
28-8 claimant’s action. The lien claimant and other parties adversely
28-9 interested must be allowed [5] 20 days to answer the statements.
28-10 [3.] 4. If it appears from the records of the county recorder that
28-11 there are other notices of lien [claims] recorded against the same
28-12 [premises] property at the time of the commencement of the action,
28-13 the [plaintiff] lien claimant shall, in addition to and after the initial
28-14 publication of the notice of foreclosure as provided in paragraph (b)
28-15 of subsection 2, mail to those other lien claimants, by registered or
28-16 certified mail, or deliver in person a copy of the notice of
28-17 foreclosure as published.
28-18 [4.] 5. At the time of any change in the venue of the action, the
28-19 [plaintiff] lien claimant shall file a notice of pendency of the action,
28-20 in the manner provided in NRS 14.010, and include in the notice the
28-21 court and county to which the action is changed.
28-22 [5.] 6. When separate actions are commenced by lien
28-23 claimants to foreclose on their respective notices of lien, the court
28-24 may consolidate all the actions. The consolidation does not affect
28-25 or change the priority of lien claims.
28-26 7. The court shall enter judgment according to the right of the
28-27 parties, and shall, by decree, proceed to hear and determine
28-28 the claims in a summary way, or may, if it be the district court, refer
28-29 the claims to a special master to ascertain and report upon the liens
28-30 and the amount justly due thereon. No consequential damages may
28-31 be recovered in an action pursuant to this section. All liens not so
28-32 exhibited shall be deemed to be waived in favor of those which are
28-33 so exhibited.
28-34 [6.] 8. Upon petition by a lien claimant for a preferential trial
28-35 setting:
28-36 (a) The court shall give preference in setting a date for the
28-37 trial of an action brought pursuant to this section; and
28-38 (b) If a lien action is designated as complex by the court, the
28-39 court may take into account the rights and claims of all lien
28-40 claimants in setting a date for the preferential trial.
28-41 9. If the lienable amount of a lien claimant’s lien is the
28-42 subject of binding arbitration:
28-43 (a) The court may, at the request of a party to the arbitration,
28-44 stay the lien claimant’s action to foreclose the lien pending the
28-45 outcome of the binding arbitration. If the foreclosure on the lien
29-1 involves the rights of other lien claimants or persons whose claims
29-2 are not the subject of the binding arbitration, the court may stay
29-3 the lien claimant’s foreclosure proceeding only upon terms which
29-4 are just and which afford the lien claimant a fair opportunity to
29-5 protect his lien rights and priorities with respect to other lien
29-6 claimants and persons.
29-7 (b) Upon the granting of an award by the arbitrator, any party
29-8 to the arbitration may seek an order from the court in the action to
29-9 foreclose on the lien confirming or adopting the award and
29-10 determining the lienable amount of the lien claimant’s lien in
29-11 accordance with the order, if any. Upon determining the lienable
29-12 amount, the court shall enter a judgment or decree for the lienable
29-13 amount, plus all amounts that may be awarded by the court to the
29-14 lien claimant pursuant to NRS 108.237, and the court may include
29-15 as part of the lien all costs and attorney’s fees awarded to the lien
29-16 claimant by the arbitrator and all costs and attorney’s fees
29-17 incurred by the lien claimant pertaining to any application or
29-18 motion to confirm, adopt, modify or correct the award of the
29-19 arbitrator. A judgment or decree entered by the court pursuant to
29-20 this subsection may be enforced against the property as provided
29-21 in subsections 10, 11 and 12.
29-22 10. On ascertaining the whole amount of the liens with which
29-23 the [premises are] property is justly chargeable, as provided in NRS
29-24 108.221 to 108.246, inclusive, and sections 2 to 26, inclusive, of
29-25 this act, the court shall cause the [premises] property to be sold in
29-26 satisfaction of [the] all liens and the costs[, including costs of suit,]
29-27 of sale, including all amounts awarded to all lien claimants
29-28 pursuant to NRS 108.237, and any party in whose favor judgment
29-29 may be rendered may cause the [premises] property to be sold
29-30 within the time and in the manner provided for sales on execution,
29-31 issued out of any district court, for the sale of real property.
29-32 [7.] 11. If the proceeds of sale, after [the] payment of the costs
29-33 [,] of sale, are not sufficient to satisfy [the whole amount of the] all
29-34 liens to be included in the decree of sale, including all amounts
29-35 awarded to all lien claimants pursuant to NRS 108.237, the
29-36 proceeds must be apportioned according to the right of the [several
29-37 parties.] various lien claimants. If the proceeds of the sale amount
29-38 to more than the sum of [the] all liens and the cost of sale, the
29-39 remainder must be paid over to the owner of the property.
29-40 [8.] 12. Each party whose claim is not satisfied in the manner
29-41 provided in this section is entitled to personal judgment for the
29-42 residue against the party legally liable for it if that person has been
29-43 personally summoned or has appeared in the action.
30-1 Sec. 44. NRS 108.2413 is hereby amended to read as follows:
30-2 108.2413 A [mechanic’s lien of record upon real property] lien
30-3 claimant’s lien rights or notice of lien may be released upon the
30-4 posting of a surety bond in the manner provided in NRS 108.2415 to
30-5 108.2425, inclusive.
30-6 Sec. 45. NRS 108.2415 is hereby amended to read as follows:
30-7 108.2415 [The debtor of the lien claimant or a party in interest
30-8 in the premises subject to the lien must obtain a surety bond
30-9 executed by the debtor of the lien claimant or a party in interest in
30-10 the premises subject to the lien, as principal, and executed by a
30-11 corporation authorized to transact surety business in this state, as
30-12 surety, in substantially]
30-13 1. To obtain the release of a notice of lien, a principal and a
30-14 surety must execute a surety bond which must be in the following
30-15 form:
30-16 (Assessor’s Parcel Numbers)
30-17 (Title of court and cause, if action has been commenced)
30-18 WHEREAS, ................................ (name of [owner, contractor, or
30-19 other person disputing lien)] principal), located at
30-20 ........................................................ (address of principal), desires to
30-21 give a bond for releasing the following described [real] property
30-22 owned by ......................................... (name of owners) from that
30-23 certain [claim of mechanic’s] notice of lien in the sum of
30-24 $................ recorded ..... (month) ..... (day) ..... (year) in the office of
30-25 the recorder in ................................ (name of county where the [real]
30-26 property is [situated):] located):
30-27 (Legal Description)
30-28 NOW, THEREFORE, the undersigned principal and surety do
30-29 hereby obligate themselves to the lien claimant named in the
30-30 [mechanic’s] notice of lien, ................................, (name of lien
30-31 claimant) under the conditions prescribed by NRS 108.2413 to
30-32 108.2425, inclusive, in the sum of $................ (1 1/2 x [claim),]
30-33 lienable amount), from which sum they will pay the lien claimant
30-34 [such] that amount as a court of competent jurisdiction may adjudge
30-35 to have been secured by his lien, [with interest, costs and attorney’s
30-36 fees.] including the total amount awarded pursuant to
30-37 NRS 108.237.
30-38 IN TESTIMONY WHEREOF, the principal and surety have
30-39 executed this bond at ................................, Nevada, on the ....... day
30-40 of the month of ....... of the year .......
31-1 ......……….....................
31-2 (Signature of Principal)
31-3 (Surety Corporation)
31-4 By........………....................
31-5 (Its Attorney in Fact)
31-6 State of Nevada }
31-7 }ss.
31-8 County of.................. }
31-9 On ..... (month) ..... (day) ..... (year) before me, the undersigned,
31-10 a notary public of this county and state, personally appeared
31-11 ................................. who acknowledged that he executed the
31-12 foregoing instrument as principal for the purposes therein mentioned
31-13 and also personally appeared ................................ known (or
31-14 satisfactorily proved) to me to be the attorney in fact of the
31-15 [corporation] surety that executed the foregoing instrument, known
31-16 to me to be the person who executed that instrument on behalf of the
31-17 [corporation] surety therein named, and he acknowledged to me that
31-18 [that corporation] the surety executed the foregoing instrument.
31-19 ............................................
31-20 (Notary Public in and for
31-21 the County and State)
31-22 2. The principal must record the surety bond in the office of
31-23 the county recorder in which the notice of lien was recorded,
31-24 either before or after the commencement of an action to enforce
31-25 the lien. A certified copy of the recorded surety bond shall be
31-26 deemed an original for purposes of this section.
31-27 3. Upon the recording of the surety bond, the principal must
31-28 serve a file-stamped copy of the recorded surety bond in the
31-29 following manner:
31-30 (a) If an action is pending to enforce the lien, service must be
31-31 made by certified or registered mail, return receipt requested,
31-32 upon the lien claimant at the address set forth in the lien and the
31-33 lien claimant’s counsel of record at his place of business; or
31-34 (b) If no action is pending to enforce the lien, personal service
31-35 must be made upon the lien claimant pursuant to Rule 4 of the
31-36 Nevada Rules of Civil Procedure.
31-37 4. Failure to serve the surety bond as provided in subsection 3
31-38 does not affect the validity of the surety bond, but the statute of
32-1 limitations on any action on the surety bond, including a motion
32-2 excepting to the sufficiency of the surety pursuant to NRS
32-3 108.2425, is tolled until notice is given.
32-4 5. Subject to the provisions of NRS 108.2425, the recording
32-5 and service of the surety bond pursuant to this section releases the
32-6 property described in the surety bond from the lien and the surety
32-7 bond shall be deemed to replace the property as security for the
32-8 lien.
32-9 Sec. 46. NRS 108.2421 is hereby amended to read as follows:
32-10 108.2421 1. The lien claimant is entitled to [bring] :
32-11 (a) Bring an action against [the lien claimant’s debtor and to
32-12 join therein] ; or
32-13 (b) If an action has been commenced, join in the pending
32-14 action against,
32-15 the principal and surety on the surety bond[. A judgment for the
32-16 claimant on the bond may not be made against the property. The
32-17 rights of the lien claimant include and the court may award to him in
32-18 that action:
32-19 (a) The amount found due to the lien claimant by the court;
32-20 (b) The cost of preparing and filing the lien claim, including
32-21 attorney’s fees, if any;
32-22 (c) The costs of the proceedings;
32-23 (d) Attorney’s fees for representation of the lien claimant in the
32-24 proceedings; and
32-25 (e) Interest at a rate established pursuant to NRS 99.040 from
32-26 the date found by the court that the sum was due.
32-27 2. Proceedings pursuant to subsection 1 are entitled to priority
32-28 of hearing second only to criminal hearings. The plaintiff] and the
32-29 lien claimant’s debtor.
32-30 2. At any time after the filing of a joint case conference
32-31 report pursuant to Rule 16.1 of the Nevada Rules of Civil
32-32 Procedure or, if the case is designated by the court as complex
32-33 litigation, after the approval of the initial case management order
32-34 by the court, each lien claimant in the action may serve upon the
32-35 adverse party a “demand for [30-day setting,” in the proper form,]
32-36 preferential trial setting” and file the demand with the clerk of the
32-37 court. Upon filing, the clerk of the court shall, before the Friday
32-38 after the demand is filed, vacate a case or cases in a department of
32-39 the court and set the lien claimant’s case for hearing, on a day or
32-40 days certain, to be heard within [30] 60 days after the filing of the
32-41 “demand for [30-day] preferential trial setting.” Only one such
32-42 preferential trial setting need be given by the court, unless the
32-43 hearing date is vacated without stipulation of counsel for the
32-44 [plaintiff] lien claimant in writing. If the hearing date is vacated
33-1 without that stipulation, upon service and filing, a new preferential
33-2 trial setting must be given.
33-3 3. A lien claimant shall, at the time of making his demand for
33-4 a preferential trial setting, and each other party to the preferential
33-5 trial shall, within 20 days after the lien claimant’s service of the
33-6 demand, serve upon all parties to the preferential trial the
33-7 following documents and information:
33-8 (a) A copy of all documents that the party intends to rely upon
33-9 at the time of the trial;
33-10 (b) A list of witnesses whom the party intends to call at the
33-11 time of the trial, which must include for each witness:
33-12 (1) The name of the witness;
33-13 (2) The company for whom the witness works and title of
33-14 the witness; and
33-15 (3) A brief summary of the expected testimony of the
33-16 witness;
33-17 (c) Any supplemental discovery responses as required by the
33-18 Nevada Rules of Civil Procedure;
33-19 (d) The identity of each person whom the party expects to call
33-20 as an expert witness at the trial, together with a statement of the
33-21 substance of the facts and opinions to which the expert witness is
33-22 expected to testify and a summary of the grounds for each
33-23 opinion;
33-24 (e) Any expert reports not previously disclosed; and
33-25 (f) A detailed summary of all claims, offsets and defenses that
33-26 the party intends to rely upon at the trial.
33-27 4. Within 20 days after receipt of an opposing party’s
33-28 identification of an expert witness, a party who desires to call a
33-29 rebuttal expert witness at the trial must identify each person whom
33-30 the party expects to call as a rebuttal expert witness, and must
33-31 provide a statement of the substance of the facts and opinions to
33-32 which the rebuttal expert witness is expected to testify and a
33-33 summary of the grounds for each opinion.
33-34 5. A prevailing lien claimant on a claim against a surety bond
33-35 must be awarded the lienable amount plus the total amount that
33-36 may be awarded by the court pursuant to NRS 108.237.
33-37 Sec. 47. NRS 108.2423 is hereby amended to read as follows:
33-38 108.2423 1. By entering into a surety bond given pursuant to
33-39 NRS 108.2415, the principal and surety [submits himself] submit
33-40 themselves to the jurisdiction of the court in which [the bond is filed
33-41 in the proceeding or release of the lien,] an action or suit is pending
33-42 on a notice of lien on the property described in the surety bond,
33-43 and the principal and surety irrevocably [appoints] appoint the
33-44 clerk of that court as [its] their agent upon whom any papers
33-45 affecting [its] the liability on the surety bond may be served. [Its]
34-1 The liability of the principal may be established by the court in the
34-2 pending action. The liability of the surety may be enforced on
34-3 motion without necessity of an independent action. The motion and
34-4 such notice of motion as the court prescribes may be served on the
34-5 clerk of the court, who shall forthwith mail copies to the principal
34-6 and surety if [his address is] their addresses are known.
34-7 2. The motion described in subsection 1 must not be instituted
34-8 until [the lapse of] 30 days [following] after:
34-9 (a) If a notice of appeal from the judgment is not filed, the
34-10 giving of notice of entry of judgment in the action against the lien
34-11 claimant’s debtor, [if no notice of appeal from the judgment is filed,
34-12 nor may the motion be instituted until the lapse of 30 days
34-13 following] as the case may be, or the giving of notice of entry of
34-14 judgment in an action against the principal or the lien claimant’s
34-15 debtor, as the case may be; or
34-16 (b) If an appeal has been taken from the judgment, the filing
34-17 of the remittitur from the Supreme Court . [, if an appeal has been
34-18 taken from the judgment.]
34-19 Sec. 48. NRS 108.2425 is hereby amended to read as follows:
34-20 108.2425 1. The lien claimant may, within [2] 15 days after
34-21 the service of a copy of the [petition and a copy of the bond attached
34-22 thereto,] surety bond pursuant to subsection 3 of NRS 108.2415,
34-23 file a motion with the clerk of the court in [the action a notice] a
34-24 pending action excepting to the sufficiency of the surety [on] or the
34-25 surety bond, and shall, at the same time and together with that
34-26 [notice,] motion, file an affidavit setting forth the grounds and basis
34-27 of the exceptions to the surety[,] or the surety bond, and shall serve
34-28 a copy of the [notice] motion and a copy of the affidavit upon the
34-29 [attorney or the petitioner on the same date as] principal at the
34-30 address set forth in the surety bond within 5 business days after
34-31 the date of filing. A hearing must be had upon the justification of the
34-32 surety [at the same time as that set for the hearing on the petition for
34-33 the order to release the lien.
34-34 2. If the lien claimant fails to file and serve the notice and
34-35 affidavit within 2 days after the service of the petition for release of
34-36 the lien, he shall be deemed to have waived all objection to the
34-37 justification and sufficiency of the surety.] or the surety bond not
34-38 less than 10 days and not more than 20 days after the filing of the
34-39 motion. If the court determines that the surety or surety bond is
34-40 insufficient, the lien claimant’s lien will remain against the
34-41 property or the court may allow the substitution of a sufficient
34-42 surety and surety bond.
34-43 2. If, at any time after the recording of a surety bond
34-44 pursuant to NRS 108.2415, the surety becomes unauthorized to
34-45 transact surety business in this state pursuant to NRS 679A.030 or
35-1 is dropped from the United States Department of the Treasury’s
35-2 Listing of Approved Sureties or there exists any other good cause,
35-3 a lien claimant or other person having an interest in the surety
35-4 bond may apply to the district court in a pending action, or
35-5 commence an action if none is pending, for an order to require
35-6 additional security or to change, substitute or add securities, or to
35-7 enforce or change any other matter affecting the security provided
35-8 by the surety bond.
35-9 3. If a court finds that the amount of a surety bond recorded
35-10 pursuant to NRS 108.2415 is insufficient to pay the total amount
35-11 that may be awarded by the court pursuant to NRS 108.237, the
35-12 court shall increase the amount of the surety bond to 1.5 times the
35-13 total amount that may be awarded. Any surety that records or
35-14 consents to the recording of a surety bond pursuant to NRS
35-15 108.2415 will:
35-16 (a) Remain fully liable on the surety bond regardless of the
35-17 payment or nonpayment of any surety bond premium; and
35-18 (b) Be liable for any increase in the amount of the surety bond
35-19 as ordered by the court pursuant to this subsection.
35-20 Sec. 49. NRS 108.243 is hereby amended to read as follows:
35-21 108.243 1. Any notice of lien may be assigned in the same
35-22 manner as any other chose in action after it has been perfected by
35-23 recording.
35-24 2. [No] An assignment of a lien [prior to recording shall]
35-25 before recording will not be effective until written notice of the
35-26 assignment has been given to the owner by the assignee. [Any such
35-27 notice shall] The notice will be sufficient if delivered in person or
35-28 mailed by certified mail to the [person named as owner in the
35-29 building permit.] owner. After such notice the assignee may perfect
35-30 the lien in his own name.
35-31 3. [Two] One or more lien claimants of [the same] any class
35-32 may assign their notices of lien [claims] by written assignment,
35-33 signed by each assignor, to any other person or lien claimant of [the
35-34 same] any class, and the assignee may commence and prosecute the
35-35 action upon all of the notices of lien [claims] in his own name[.] or
35-36 in the name of the original lien claimant.
35-37 4. In the event that a claim for which a lien may be filed is
35-38 assigned before it is perfected, such assignment [shall] does not
35-39 discharge or defeat the right to perfect [such] the lien, if [such] the
35-40 claim is reassigned to the lien claimant, and thereafter [such lien
35-41 claim] the lien is timely perfected.
35-42 Sec. 50. NRS 108.2433 is hereby amended to read as follows:
35-43 108.2433 1. Except as otherwise provided in subsection 2, a
35-44 notice of lien [of record upon real] upon the property provided for
35-45 in NRS 108.221 to 108.246, inclusive, and sections 2 to 26,
36-1 inclusive, of this act may be discharged by an entry on the margin
36-2 of the record thereof, signed by the [lienor] lien claimant or his
36-3 personal representative or assignee in the presence of the recorder or
36-4 his deputy, acknowledging the satisfaction of or value received for
36-5 the notice of lien and the debt secured thereby. The recorder or his
36-6 deputy shall subscribe the entry as witness. The entry has the same
36-7 effect as a discharge or release of the notice of lien acknowledged
36-8 and recorded as provided by law. The recorder shall properly index
36-9 each marginal discharge.
36-10 2. If the notice of lien has been recorded by a microfilm or
36-11 other photographic process, a marginal release may not be used and
36-12 an acknowledged discharge or release of the notice of lien must be
36-13 recorded.
36-14 3. If the recorder or his deputy is presented with a certificate
36-15 executed by the [lienor] lien claimant or his personal representative
36-16 or assignee, specifying that the notice of lien has been paid or
36-17 otherwise satisfied or discharged, the recorder or his deputy shall
36-18 discharge the notice of lien upon the record.
36-19 Sec. 51. NRS 108.2437 is hereby amended to read as follows:
36-20 108.2437 1. As soon as practicable, but not later than 10 days
36-21 after a notice of lien [of record upon real] upon the property
36-22 pursuant to NRS 108.221 to 108.246, inclusive, and sections 2 to
36-23 26, inclusive, of this act is fully satisfied or discharged, the [lienor]
36-24 lien claimant shall cause to be recorded a discharge or release of the
36-25 notice of lien in substantially the following form:
36-26 DISCHARGE OR RELEASE OF NOTICE OF LIEN
36-27 NOTICE IS HEREBY GIVEN THAT:
36-28 The undersigned did, on the ....... day of the month of ....... of
36-29 the year ......., record in Book ............, as Document No. ............, in
36-30 the office of the county recorder of ............. County, Nevada, its
36-31 Notice of Lien, or has otherwise given notice of his intention to hold
36-32 [and claim] a lien upon the following described property[,] or
36-33 improvements, owned or purportedly owned by ..............., [situated]
36-34 located in the County of ............, State of Nevada, to wit:
36-35 (Legal Description or Address of the Property[)] or Improvements)
36-36 NOW, THEREFORE, for valuable consideration the
36-37 undersigned does release, satisfy and discharge [the claim or] his
36-38 notice of lien on the property or improvements described above by
36-39 reason of [such] this Notice of Lien . [, or by reason of the work and
36-40 labor on, or materials furnished for, that property.]
37-1 ...................................................
37-2 (Signature of [Lienor)] Lien Claimant)
37-3 2. If the [lienor] lien claimant fails to comply with the
37-4 provisions of subsection 1, he is liable in a civil action to the owner
37-5 of the [real] property, his heirs or assigns for any actual damages
37-6 caused by his failure to comply with those provisions or $100,
37-7 whichever is greater, and for a reasonable attorney’s fee and the
37-8 costs of bringing the action.
37-9 Sec. 52. NRS 108.244 is hereby amended to read as follows:
37-10 108.244 A lien claimant or assignee of a lien claimant or
37-11 claimants may not file a complaint for foreclosure of his
37-12 [mechanic’s] notice of lien or the assigned [mechanic’s] notice of
37-13 lien or [mechanics’ liens] notices of lien until 30 days have expired
37-14 immediately following the filing of his [mechanic’s] notice of lien
37-15 or following the filing of the assigned [mechanic’s] notice of lien or
37-16 the last of the assigned [mechanics’ liens.] notices of lien. This
37-17 provision [shall] does not apply to [nor] or prohibit the filing of any
37-18 statement of fact constituting a lien or statements of fact
37-19 constituting a lien [in an already filed] :
37-20 1. In an action already filed for foreclosure of [mechanic’s
37-21 lien and] a notice of lien; or
37-22 2. In order to comply with the provisions of NRS 108.239.
37-23 Sec. 53. NRS 108.245 is hereby amended to read as follows:
37-24 108.245 1. Except as otherwise provided in subsection 5,
37-25 every [person, firm, partnership, corporation or other legal entity,]
37-26 lien claimant, other than one who performs only labor, who claims
37-27 the benefit of NRS 108.221 to 108.246, inclusive, and sections 2 to
37-28 26, inclusive, of this act shall, [within 31 days] at any time after the
37-29 first delivery of material or performance of work or services under
37-30 his contract, deliver in person or by certified mail to the owner [or
37-31 reputed owner of the property or to the person whose name appears
37-32 as owner on the building permit, if any, for the improvement] of the
37-33 property a preliminary notice of right to lien in substantially the
37-34 following form:
37-35 Notice [to Owner of Materials Supplied
37-36 or Work or Services Performed] of Right to Lien
37-37 To: .....................
37-38 (Owner’s name and address)
37-39 The undersigned notifies you that he has supplied materials or
37-40 equipment or performed work or services as follows:
38-1 ...............................................................................
38-2 (General description of materials, equipment, work or services
38-3 [and anticipated total value)] )
38-4 for improvement of [real] property identified as (property
38-5 description or street address) under contract with (general contractor
38-6 or subcontractor). This is not a notice that the undersigned has not
38-7 been or does not expect to be paid, but a notice required by law that
38-8 the undersigned may, at a future date, [claim] record a notice of lien
38-9 as provided by law against the property if the undersigned is not
38-10 paid.
38-11 .........................................
38-12 (Claimant)
38-13 A subcontractor or [materialman under a subcontract] equipment or
38-14 material supplier who gives such a notice must also deliver in
38-15 person or send by certified mail a copy of the notice to the [general]
38-16 prime contractor for information only. The failure by a
38-17 subcontractor to deliver [such notices] the notice to the [general]
38-18 prime contractor is a ground for disciplinary proceedings against the
38-19 subcontractor under chapter 624 of NRS[.] but does not invalidate
38-20 the notice to the owner.
38-21 2. Such a notice does not constitute a lien or give actual or
38-22 constructive notice of a lien for any purpose.
38-23 3. No lien for materials or equipment furnished or for work or
38-24 services performed, except labor, may be perfected or enforced
38-25 pursuant to NRS 108.221 to 108.246, inclusive, and sections 2 to
38-26 26, inclusive, of this act unless the notice has been given.
38-27 4. The notice need not be verified, sworn to or acknowledged.
38-28 5. A [general] prime contractor or other person who contracts
38-29 directly with an owner or sells materials directly to an owner is not
38-30 required to give notice pursuant to this section.
38-31 6. [As used in this section, “owner” does not include any
38-32 person, firm or corporation whose only interest in the real property
38-33 is under a mortgage, deed of trust or other security arrangement.]
38-34 Any lien subsequently filed relates back not more than 30 days
38-35 before the date of filing of the notice of right to lien.
38-36 Sec. 54. NRS 108.246 is hereby amended to read as follows:
38-37 108.246 1. Each [general] prime contractor shall, before
38-38 execution of a contract for construction, inform the [record] owner
38-39 with whom he intends to contract of the provisions of NRS 108.245
38-40 in substantially the following form:
38-41 To:.....................................
38-42 (Owner’s name and address)
39-1 [Section 108.245 of Nevada Revised Statutes,] The provisions of
39-2 NRS 108.245, a part of the mechanics’ and materialmen’s lien law
39-3 of the State of Nevada, [requires,] require, for your information and
39-4 protection from hidden liens, that each person or other legal entity
39-5 [which] who supplies materials to or performs work [or services] on
39-6 a construction project, other than one who performs only labor,
39-7 [shall] deliver to the owner a notice of the materials and equipment
39-8 supplied or the work [or services] performed. You may receive
39-9 [such] these notices in connection with the construction project
39-10 which you propose to undertake.
39-11 2. Each [general] prime contractor shall deliver a copy of the
39-12 information required by subsection 1 to each subcontractor who
39-13 participates in the construction project.
39-14 3. The failure of a [general contractor so] prime contractor to
39-15 inform pursuant to this section owners and subcontractors with
39-16 whom he contracts is a ground for disciplinary proceedings under
39-17 chapter 624 of NRS.
39-18 [4. Each subcontractor who participates in the construction
39-19 project shall deliver a copy of each notice required by NRS 108.226
39-20 to the general contractor. The failure of the subcontractor to deliver
39-21 such notice to the general contractor is a ground for disciplinary
39-22 proceedings under chapter 624 of NRS.]
39-23 Sec. 55. NRS 116.4111 is hereby amended to read as follows:
39-24 116.4111 1. In the case of a sale of a unit where delivery of a
39-25 public offering statement is required pursuant to subsection 3 of
39-26 NRS 116.4102, a seller:
39-27 (a) Before conveying a unit, shall record or furnish to the
39-28 purchaser releases of all liens, except liens on real estate that a
39-29 declarant has the right to withdraw from the common-interest
39-30 community, that the purchaser does not expressly agree to take
39-31 subject to or assume and that encumber:
39-32 (1) In a condominium, that unit and its interest in the
39-33 common elements; and
39-34 (2) In a cooperative or planned community, that unit and any
39-35 limited common elements assigned thereto; or
39-36 (b) Shall provide a surety bond against the lien as provided for
39-37 liens on real estate in NRS 108.2413 to [108.2419,] 108.2425,
39-38 inclusive.
39-39 2. Before conveying real estate to the association, the declarant
39-40 shall have that real estate released from:
39-41 (a) All liens the foreclosure of which would deprive units’
39-42 owners of any right of access to or easement of support of their
39-43 units; and
40-1 (b) All other liens on that real estate unless the public offering
40-2 statement describes certain real estate that may be conveyed subject
40-3 to liens in specified amounts.
40-4 Sec. 56. NRS 624.3016 is hereby amended to read as follows:
40-5 624.3016 The following acts or omissions, among others,
40-6 constitute cause for disciplinary action under NRS 624.300:
40-7 1. Any fraudulent or deceitful act committed in the capacity of
40-8 a contractor.
40-9 2. A conviction of a violation of NRS 624.730 or a felony or a
40-10 crime involving moral turpitude.
40-11 3. Knowingly making a false statement in or relating to the
40-12 recording of a notice of lien pursuant to the provisions of
40-13 NRS 108.226.
40-14 4. Failure to give a notice required by NRS 108.227, 108.245
40-15 or 108.246.
40-16 5. Failure to comply with NRS 597.713, 597.716 or 597.719 or
40-17 any regulations of the Board governing contracts for the
40-18 construction of residential pools and spas.
40-19 6. Failure to comply with NRS 624.600.
40-20 7. Misrepresentation or the omission of a material fact, or the
40-21 commission of any other fraudulent or deceitful act, to obtain a
40-22 license.
40-23 8. Failure to pay an assessment required pursuant to
40-24 NRS 624.470.
40-25 Sec. 57. NRS 624.620 is hereby amended to read as follows:
40-26 624.620 1. Except as otherwise provided in this section, any
40-27 money remaining unpaid for the construction of a work of
40-28 improvement is payable to the contractor within 30 days after:
40-29 (a) Occupancy or use of the work of improvement by the owner
40-30 or by a person acting with the authority of the owner; or
40-31 (b) The availability of a work of improvement for its intended
40-32 use. The contractor must have given a written notice of availability
40-33 to the owner on or before the day on which he claims that the work
40-34 of improvement became available for use or occupancy.
40-35 2. If the owner has complied with subsection 3, the owner
40-36 may:
40-37 (a) Withhold payment for the amount of:
40-38 (1) Any work or labor that has not been performed or
40-39 materials or equipment that has not been furnished for which
40-40 payment is sought;
40-41 (2) The costs and expenses reasonably necessary to correct or
40-42 repair any work that is not materially in compliance with the
40-43 contract to the extent that such costs and expenses exceed 50 percent
40-44 of the amount of retention being withheld pursuant to the terms of
40-45 the contract; and
41-1 (3) Money the owner has paid or is required to pay pursuant
41-2 to an official notice from a state agency, or employee benefit trust
41-3 fund, for which the owner is liable for the contractor or his
41-4 subcontractors in accordance with chapter 608, 612, 616A to 616D,
41-5 inclusive, or 617 of NRS.
41-6 (b) Require, as a condition precedent to the payment of any
41-7 unpaid amount under the construction contract, that lien releases be
41-8 furnished by the contractor’s subcontractors, suppliers or
41-9 employees. For purposes of this paragraph:
41-10 (1) If the amount due is paid with a check or is not paid
41-11 concurrently with the owner’s receipt of the lien releases, the lien
41-12 releases must be conditioned upon the check clearing the bank upon
41-13 which it is drawn and the receipt of payment and shall be deemed to
41-14 become unconditional upon the receipt of payment; and
41-15 (2) The lien releases must be limited to the amount of the
41-16 payment received.
41-17 3. If, pursuant to paragraph (a) of subsection 2, an owner
41-18 intends to withhold any amount from a payment to be made to a
41-19 contractor, the owner must, on or before the date the payment is due,
41-20 give written notice to the contractor of any amount that will be
41-21 withheld. The written notice must:
41-22 (a) Identify the amount that will be withheld from the
41-23 contractor;
41-24 (b) Give a reasonably detailed explanation of the reason the
41-25 owner will withhold that amount, including, without limitation, a
41-26 specific reference to the provision or section of the contract, and any
41-27 documents relating thereto, and the applicable building code, law or
41-28 regulation with which the contractor has failed to comply; and
41-29 (c) Be signed by an authorized agent of the owner.
41-30 4. A contractor who receives a notice pursuant to subsection 3
41-31 may provide written notice to the owner of the correction of a
41-32 condition described in the notice received pursuant to subsection 3.
41-33 The notice of correction must be sufficient to identify the scope and
41-34 manner of the correction of the condition and be signed by an
41-35 authorized representative of the contractor. If an owner receives a
41-36 written notice from the contractor of the correction of a condition
41-37 described in an owner’s notice of withholding pursuant to
41-38 subsection 3, the owner must, within 10 days after receipt of such
41-39 notice:
41-40 (a) Pay the amount withheld by the owner for that condition; or
41-41 (b) Object to the scope and manner of the correction of the
41-42 condition in a written statement that sets forth the reason for
41-43 the objection and complies with subsection 3. If the owner objects to
41-44 the scope and manner of the correction of a condition, he shall
41-45 nevertheless pay to the contractor, along with payment made
42-1 pursuant to the contractor’s next payment request, the amount
42-2 withheld for the correction of conditions to which the owner no
42-3 longer objects.
42-4 5. The partial occupancy or availability of a building requires
42-5 payment in direct proportion to the value of the part of the building
42-6 which is partially occupied or partially available. For projects which
42-7 involve more than one building, each building must be considered
42-8 separately in determining the amount of money which is payable to
42-9 the contractor.
42-10 6. Unless otherwise provided in the construction contract, any
42-11 money which is payable to a contractor pursuant to this section
42-12 accrues interest at a rate equal to the lowest daily prime rate at the
42-13 largest bank in this state, as determined by the Commissioner of
42-14 Financial Institutions on January 1 or July 1, as the case may be,
42-15 immediately preceding:
42-16 (a) The time the contract was signed; or
42-17 (b) If the contract was oral, the time the terms of the contract
42-18 were agreed to by the parties,
42-19 plus 2 percent.
42-20 7. This section does not apply to:
42-21 (a) Any residential building; or
42-22 (b) Public works.
42-23 8. As used in this section, unless the context otherwise
42-24 requires, “work of improvement” has the meaning ascribed to it in
42-25 [NRS 108.221.] section 24 of this act.
42-26 Sec. 58. NRS 108.223, 108.2231, 108.224, 108.2417 and
42-27 108.2419 are hereby repealed.
42-28 Sec. 59. Sections 25 and 26 of this act apply only to
42-29 agreements entered into on or after October 1, 2003.
42-30 LEADLINES OF REPEALED SECTIONS
42-31 108.223 Lien on lot or tract of land for improvements made
42-32 at request of owner.
42-33 108.2231 Lien on real property, building, structure or
42-34 improvement thereon for services rendered at request of owner.
42-35 108.224 Land subject to lien.
42-36 108.2417 Release of lien on real property by posting surety
42-37 bond: Petition for release; service of copy of petition.
43-1 108.2419 Release of lien on real property by posting surety
43-2 bond: Hearing on petition; contents and effect of order releasing
43-3 lien.
43-4 H