Question 1

When does the Montana notice of right to claim lien clock start?

Accepted Answer

At first furnishing. Section 71-3-531(3) provides that the notice may not be given later than 20 days after the date on which the services or materials are first furnished to the contracting owner. That is your own first delivery or first day of work on the job, not your contract date, not the owner's permit date and not an unpaid invoice, so fix the date from delivery tickets or timesheets before anything else. The same event starts the longer period in subsection (4), which runs 45 days from first furnishing where the contracting owner is paying from funds provided by a regulated lender and secured by an interest, lien, mortgage or encumbrance for the purpose of paying for that particular improvement, excluding a contract on an owner-occupied residence.

Question 2

Who must give a Montana notice of right to claim lien, and who is excused?

Accepted Answer

Section 71-3-531(2) puts the duty on any person who may claim a construction lien under Part 5 and wants to claim one, which in practice means subcontractors, sub-subcontractors and material suppliers on qualifying work. Subsection (1) then lists four classes who are not required to give it. An original contractor who furnishes services or materials directly to the owner at the owner's request is excused, so a general contractor hired by the homeowner has nothing to serve. A wage earner or laborer who performs personal labor services for a person furnishing service or material under a real estate improvement contract is excused. The remaining two exceptions are about the project rather than the person, and they are the ones that catch people out.

Question 3

Does a Montana commercial or apartment project need this notice?

Accepted Answer

No, and this is the single most important scoping point in Montana. Section 71-3-531(1)(d) excuses a person who furnishes services or materials under a real estate improvement contract that relates to an improvement that is partly or wholly commercial in character, and subsection (1)(c) excuses a person furnishing under a contract that relates to a dwelling for five or more families. So a store fit-out, an office remodel and a twelve unit apartment building all sit outside the requirement, and a mixed-use improvement falls outside it on the strength of its commercial component, because the statute says partly as well as wholly. What is left inside is small residential work on dwellings of four or fewer families. Read the exception against your own contract, since the statute keys it to what the contract relates to.

Question 4

How must a Montana notice of right to claim lien be delivered?

Accepted Answer

Section 71-3-531(5) allows exactly two methods and makes compliance with that subsection a precondition to claiming a lien at all. The notice must be sent to the contracting owner by certified mail, or delivered personally to the owner. Certified mail is effective on the date on which the notice is mailed, which is unusually helpful, because it means a notice mailed on day 20 is on time even if it arrives later. If you deliver personally instead, written acknowledgment of receipt must be obtained from the contracting owner, so a hand delivery with nobody signing for it does not satisfy the section. Ordinary first class mail, fax and email are not among the permitted methods.

Question 5

Why does Montana make me file the notice with the county clerk?

Accepted Answer

Because in Montana the notice does double duty, as a warning to the owner and as a public record. Section 71-3-531(6)(a) requires a person who may claim a lien also to file a copy of the notice, in the form section 71-3-532 requires, with the clerk and recorder of the county in which the improved real estate is located, no later than 5 business days after the notice is given to the contracting owner. The filed copy must be signed by the person filing it or by someone authorized to sign for them, and the clerk and recorder may allow electronic filing with an electronic signature. Miss this step and section 71-3-531(6)(e) bites: a person may not claim a construction lien unless there is an unexpired notice or an unexpired continuation notice on file at the time the lien is filed.

Question 6

Which seven items does Montana require the notice to carry?

Accepted Answer

Yes, at length. Section 71-3-532 requires the notice to be in writing, to state that it is a notice of a right to claim a lien against real estate for services or materials furnished in connection with improvement of the real estate, and to carry a description sufficient to identify the real estate. It then lists seven items: date of mailing, owner's name, owner's address, name of the person filing the notice, that person's address, a description sufficient to identify the property being improved, and the prescribed notice itself. The prescribed text opens WARNING: READ THIS NOTICE. PROTECT YOURSELF FROM PAYING ANY CONTRACTOR OR SUPPLIER TWICE FOR THE SAME SERVICE, states THIS IS NOT A LIEN, and closes with five numbered ways for the owner to protect itself, including making checks payable jointly to the contractor and the firm that sent the notice.

Question 7

What happens if a Montana notice goes out late?

Accepted Answer

Your claim is cut back to recent work rather than wiped out. Section 71-3-531(3) says that if notice is not given within the 20 day period, a lien is enforceable only for the services or materials furnished within the 20-day period before the date on which notice is given. Subsection (4) applies the same rule with a 45 day lookback on the lender-funded track. On a job you have been supplying for four months, that converts a large claim into whatever you delivered in the last few weeks, so sending a late notice today is still worth doing because it fixes the lookback window from today. What it cannot do is reach back over the months you let pass.

Question 8

Can a Montana owner make me release the filed notice?

Accepted Answer

Yes, once you have been paid. Section 71-3-538 requires a person who has filed a notice of the right to claim a lien to file a release when paid for the services and materials that were the subject of the notice, and to do so within 5 business days of the contracting owner's request. The release goes to the same county clerk and recorder and must include the clerk and recorder's file number of the notice, the date the notice was filed, and the name of the person to whom it was given, signed by whoever filed the original notice or by a person authorized to sign for them. Keep the file number from your original filing, because the release cannot be completed without it.

Montana Notice of the Right to Claim a Lien

Find out where you stand in Montana

Introduction

Key Things to Know

Key decisions before you file

Customize your Preliminary Notice Template with DocDraft

Montana Requirements for Preliminary Notice

Twenty Days From First Furnishing to the Contracting Owner

Forty Five Days Where a Regulated Lender Funds the Payments

Commercial and Five-or-More-Family Work Is Outside It

Certified Mail or Personal Delivery With a Signed Acknowledgment

File a Copy With the County Clerk Within 5 Business Days

The Prescribed WARNING and THIS IS NOT A LIEN Text

Late Notice Cuts the Claim to a Rolling Lookback

One Year Lapse, Continuations, and the Release Once Paid

Frequently Asked Questions