Nebraska
State Statutes (as of
4/13/07)
Nebraska
Construction Lien Act
________________________________________________________________
Section 52-125
Act, how cited.
Sections
52-125 to 52-159 shall be known and may be cited as the Nebraska Construction
Lien Act.
Source:
Laws 1981, LB 512, ? 1
Annotations:
Trustees of a health, welfare, and pension fund may assert a
construction lien on behalf of union employees against the property owner. Omaha Constr. Indus. Pension Plan v. Children's Hosp., 11 Neb. App.
35, 642 N.W.2d 849 (2002).
Section 52-126
Sections, purpose.
Sections
52-125 to 52-159 creates, and provides for the attachment and enforceability
of, a lien against real estate in favor of a person furnishing services or
materials under a real estate improvement contract. Except as provided in
sections 52-125 to 52-159, no nonconsensual lien arises against real estate by
reason of improvements made thereon.
Source:
Laws 1981, LB 512, ? 2
Annotations:
The Nebraska Construction Lien Act does not take away a
construction lienholder's common-law right to sue for
breach of contract. Tilt-Up Concrete, Inc. v. Star
City/Federal, Inc., 261 Neb. 64, 621 N.W.2d 502 (2001).
Section 52-127
Terms, defined.
As used in
sections 52-125 to 52-159, unless the context otherwise requires:
(1)
Claimant shall mean a person having a right to a lien under sections 52-125 to
52-159 upon real estate and includes his or her successor in interest;
(2)
Contract price shall mean the amount agreed upon by the contracting parties for
performing services and furnishing materials covered by the contract, increased
or diminished by the price of change orders or extras, amounts attributable to
altered specifications, or breach of contract, including but not limited to
defects in workmanship or materials. Liquidation of damages between the owner
and a prime contractor does not diminish the contract price as to other
claimants. If no price is agreed upon by the contracting parties, contract
price shall mean the reasonable value of all services or materials covered by
the contract;
(3)
Contracting owner shall mean a person who owns real estate and who, personally
or through an agent, enters into a contract, express or implied, for the
improvement of the real estate;
(4)
Construction lien or lien shall mean a lien arising under sections 52-125 to
52-159, and shall not include a security interest;
(5) Notice
of commencement shall mean the notice specified in section 52-145, whether
recorded by an owner or by a claimant;
(6) Notice
of termination shall mean a notice terminating a notice of commencement;
(7) Prime
contract shall mean any real estate improvement contract made between the
contracting owner and a prime contractor;
(8) Prime
contractor shall mean any person who makes a real estate improvement contract
with a contracting owner;
(9)
Services shall not include financing or activities in connection with
financing;
(10)
Construction security interest shall mean a security interest created by a
security agreement that contains a legend on the first page clearly stating
that it is a Construction Security Agreement and that secures an obligation
which the debtor incurred for the purpose of making an improvement of the real
estate in which the security interest is given if the instrument recorded to
perfect the interest states that it is a construction security interest;
(11) Good
faith shall mean honesty in fact and the observance of reasonable standards of
fair dealing in the conduct or transaction involved;
(12)
Judicial proceeding shall mean action at law or suit in equity, and any other
proceeding in which rights are judicially determined;
(13) To
record shall mean to present to the register of deeds for the county where the
land is situated a document which he or she accepts and either enters in a
daily log or notes thereon an identifying number, regardless of whether under
applicable law the register of deeds is directed to file the document or
otherwise to maintain a record of it. Recorded and recording have corresponding
meanings;
(14)
Record location shall mean the location, whether book and page, document
number, electronic retrieval code, or other specific place, of a document in
the public records accessible in the same recording office where the document
containing the reference to the location is found; and
(15)
Security interest shall mean a consensual interest in real estate which secures
payment or performance of an obligation.
Source:
Laws 1981, LB 512, ? 3
Annotations:
A potential purchaser's interest in a property does not
satisfy the requirements of "contracting owner" under subsection (3)
of this section, and, therefore, potential purchasers cannot limit their
liability under subsection (5) of section 52-136 for construction liens
properly recorded before the filing of their own title document. Lincoln Lumber Co. v. Lancaster, 260 Neb. 585, 618 N.W.2d 676
(2000).
Vendor of real estate held not to be "contracting owner," where the executory contract did not require construction of
improvements ordered by purchaser necessary to subject the vendor's interest in
the property to a construction lien filed by supplier. Tuttle
& Assoc. v. Gendler, 237 Neb. 825, 467 N.W.2d 881
(1991).
Section 52-128
Contracting owner; presumption of agency.
For the purpose
of determining whether an owner is a contracting owner, agency is presumed, in
the absence of clear and convincing evidence to the contrary, between employer
and employee, between spouses, between joint tenants, and among tenants in
common.
Source:
Laws 1981, LB 512, ? 4
Section 52-129
Protected party, residential real estate,
defined.
(1)
Protected party shall mean:
(a) An
individual who contracts to give a real estate security interest in, or to buy
or to have improved, residential real estate all or a part of which he or she
occupies or intends to occupy as a residence;
(b) A
person obligated primarily or secondarily on a contract to buy or have improved
residential real estate or on an obligation secured by residential real estate
if, at the time he or she becomes obligated, he or she is related to an
individual who occupies or intends to occupy all or a part of the real estate
as a residence; or
(c) With
respect to a security agreement, a person who acquires residential real estate
and assumes or takes subject to the obligation of a prior protected party under
the real estate security agreement.
(2)
Residential real estate shall mean, in relation to a protected party, real
estate, improved or to be improved, containing not more than four dwelling
units and no nonresidential uses for which the protected party is a lessor. A condominium unit that is otherwise residential
real estate remains so even though the condominium development contains more
than four dwelling units or units used for nonresidential purposes.
Source:
Laws 1981, LB 512, ? 5
Annotations:
One must intend to occupy the real estate as a residence to
be considered a protected party. Midlands Rental & Mach.,
Inc. v. Christensen Ltd., 252 Neb. 806, 566 N.W.2d 115 (1997).
Section 52-130
Real estate improvement contract, defined.
(1) Except
as provided in subsection (2) of this section, real estate improvement contract
shall mean an agreement to perform services, including labor, or to furnish
materials for the purpose of producing a change in the physical condition of
land or of a structure including:
(a)
Alteration of the surface by excavation, fill, change in grade, or change in a
shore, bank, or flood plain of a stream, swamp, or body of water;
(b)
Construction or installation on, above, or below the surface of land;
(c)
Demolition, repair, remodeling, or removal of a structure previously
constructed or installed;
(d)
Seeding, sodding, or other landscaping operation;
(e)
Surface or subsurface testing, boring, or analyzing; and
(f) Preparation of plans, surveys, or architectural or
engineering plans or drawings for any change in the physical condition of land
or structures whether or not used incident to producing a change in physical
condition of the real estate.
(2) A
contract for the mining or removal of timber, minerals, gravel, soil, sod, or
things growing on land, or other similar contracts in which the activity is
primarily for the purpose of realizing upon the disposal or removal of the
objects removed, or a contract for the planting, cultivation, or harvesting of
crops or for the preparation of the soil for planting of crops, is not a real
estate improvement contract.
Source:
Laws 1981, LB 512, ? 6
Section 52-131
Construction lien; existence; amount; priority; enforcement.
(1) A
person who furnishes services or materials pursuant to a real estate
improvement contract has a construction lien, only to the extent provided in
the Nebraska Construction Lien Act, to secure the payment of his or her contract
price.
(2) A lien
arises under the act only if the claimant records a lien within the time
specified by section 52-137.
(3) Real
estate to which a construction lien attaches is specified by section 52-133,
and limitations on the existence of a lien for materials are specified by
section 52-134.
(4) The
amount of a claimant's lien is specified by section 52-136. The content of the
notice of the right to assert a lien to be given to the owner under section
52-136 is specified by section 52-135.
(5) The priority
of a claimant's lien as against other construction-lien claimants is specified
in section 52-138, and priority as against claimants other than
construction-lien claimants is specified in section 52-139.
(6)
Foreclosure of a lien under the act is governed by section 52-155, and the time
within which an action to foreclose must be brought by section 52-140.
Source:
Laws 1981, LB 512, ? 7
Laws 2003, LB 655, ? 5
Cross References:
Nebraska Construction Lien Act,see section 52-125.
Annotations:
A construction lien is not valid absent a contract between
the parties. Mid-America Maintenance v. Bill Morris Ford, 232
Neb. 920, 442 N.W.2d 869 (1989).
The Nebraska Construction Lien Act does not prevent employees of a
subcontractor from filing a construction lien against the property owner. Omaha Constr. Indus. Pension Plan v. Children's Hosp., 11 Neb. App.
35, 642 N.W.2d 849 (2002).
A construction lien is not valid absent a contract between the parties. Sorenson v. Dager, 8 Neb. App. 729, 601
N.W.2d 564 (1999).
Section 52-132
Public property; exempt from lien.
Notwithstanding
the provisions on existence of a construction lien of section 52-131, no lien
attaches under sections 52-125 to 52-159 to real estate owned by the state, a
county, a municipality, or other governmental agency or political subdivision.
Source:
Laws 1981, LB 512, ? 8
Section 52-133
Real estate subject to construction lien.
(1) If at
the time a construction lien is recorded there is a recorded notice of
commencement covering the improvement pursuant to which the lien arises, the
lien is on the contracting owner's real estate described in the notice of
commencement.
(2) Except
as provided in subsection (3) of this section, if at the time a construction
lien is recorded there is no recorded notice of commencement covering the
improvement pursuant to which the lien arises, the lien is on the contracting
owner's real estate being improved or directly benefited.
(3) If a
claimant who recorded a lien while there was no recorded notice of commencement
covering the real estate later records a notice of commencement, his or her
lien is on the contracting owner's real estate described in the notice of
commencement.
(4) If as
a part of an improvement on his or her real estate or for the purpose of
directly benefiting his or her real estate an owner contracts for improvements
on real estate not owned by him or her, persons who furnish services or
materials in connection with that improvement have a lien against the
contracting owner's real estate being improved or directly benefited to the
same extent as if the improvement had been on the contracting owner's real
estate.
(5) If a
recorded notice of commencement covers more than one lot in a platted
subdivision of record, a claimant may apportion his or her lien to the various
lots covered by the notice of commencement in any proportion he or she chooses
and states in his or her recorded lien, including assigning all his or her lien
to a particular lot.
(6) If a
recorded lien does not contain an apportionment as provided in subsection (5)
of this section, the owner may make demand on the claimant to make an
apportionment and, if the claimant does not, within thirty days after the
demand, make an apportionment by recording an amendment of the recorded lien,
the owner may make a good faith apportionment by recording an owner's statement
of apportionment. Notwithstanding the fact that the owner did not in fact give
the notice to apportion referred to in this subsection or for any other reason
was not entitled to record a statement of apportionment, or did not make a good
faith apportionment, the apportionment is conclusive in favor of persons
acquiring interests in the real estate after the statement of apportionment is
recorded.
Source:
Laws 1981, LB 512, ? 9
Section 52-134
Lien for materials; conditions; limitations.
(1) A lien
for furnishing materials arises only if:
(a) They
are supplied with the intent, shown by the contract of sale, the delivery
order, delivery to the site by the claimant or at his or her direction, or by
other evidence, that they be used in the course of construction of, or
incorporated into, the improvement in connection with which the lien arises;
and
(b) They
are either:
(i) Incorporated in the improvement or consumed as normal
wastage in construction operations;
(ii)
Specially fabricated for incorporation in the improvements and not readily
resalable in the ordinary course of the fabricator's business even though not
actually incorporated in the improvement;
(iii) Used
for the construction or for the operation of machinery or equipment used in the
course of construction and not remaining in the improvement, subject to
diminution by the salvage value of those materials; or
(iv)
Tools, appliances, or machinery used on
the particular improvement, but a lien for supplying tools, appliances, or
machinery used on the improvement is limited as provided by subsection (3) of
this section.
(2) The
delivery of materials to the site of the improvement, whether or not by the claimant,
creates a presumption that they were used in the course of construction or were
incorporated into the improvement.
(3) A lien
arising for the supplying of tools, appliances, or machinery under subdivision
(1)(b)(iv) of this section is limited as follows:
(a) If
they are rented, the lien is for the reasonable rental value for the period of
actual use and any reasonable periods of nonuse taken into account in the
rental contract; and
(b) If
they are purchased, the lien is for the price but arises only if they were
purchased for use in the course of the particular improvement and have no
substantial value to the purchaser after the completion of the improvement on
which they were used.
Source:
Laws 1981, LB 512, ? 10
Annotations:
Subsection (3)(a) of this section requires that the
reasonable rental value of equipment be determined in setting the amount of a
lien, regardless of the monetary amount by which the value of the real estate
is actually increased by the use of the rented equipment. Midlands
Rental & Mach., Inc. v. Christensen Ltd., 252 Neb. 806, 566 N.W.2d 115
(1997).
Testimony of a witness with personal knowledge is sufficient evidence to
demonstrate that items listed on a construction lien were actually used. Mid-America Maintenance v. Bill Morris Ford, 232 Neb. 920, 442
N.W.2d 869 (1989).
Section 52-135
Notice of right to assert lien; contents; optional notice to contracting
owner; notice, when effective; applicability of section.
(1) At any
time after a claimant has entered into the contract under which he or she may
claim a lien under the Nebraska Construction Lien Act, he or she may give
notice of the right to assert a lien to the contracting owner. The notice of
the right to assert a lien must be in writing, state that it is a notice of a
right to assert a lien against real estate for services or materials furnished
in connection with improvement of the real estate, and contain:
(a) The
name of the claimant and the address to which the owner or others may send
communications to the claimant;
(b) The
name and address of the person with whom the claimant contracted;
(c) The
name of the owner against whom a lien is or may be claimed;
(d) A
general description of the services or materials provided or to be provided;
(e) A
description sufficient to identify the real estate against which the lien is or
may be claimed;
(f) A
statement that the claimant is entitled to record a lien;
(g) The
amount unpaid to the claimant for services or materials, whether or not due, or
if no amount is fixed by the contract, a good faith estimate of the amount
designated as an estimate; and
(h) The
following statement in type no smaller than that used in providing the
information required by subdivisions (1)(a) through
(1)(g) of this subsection:
Warning. If you did not contract with the person giving this notice,
any future payments you make in connection with this project may subject you to
double liability.
(2) A
claimant may notify the contracting owner, either in the notice of the right to
assert a lien or separately, that the claimant must be notified of the
recording of any termination of the notice of commencement. The notice to the
owner must be in writing and, if not part of the notice of the right to assert
a lien, shall contain the information specified in subdivisions (1)(a) through (1)(e) of this section. In addition, the notice
shall state that a written notice of the recording of any notice of termination
must be given to the claimant at least three weeks before the effective date of
the notice of termination.
(3) The
claimant shall send a copy of a recorded lien to the contracting owner within
ten days after recording, and the recording shall be within the time specified
for the filing of liens under section 52-137.
(4) If the
contracting owner has held out another person as contracting owner, either by
naming that person in the notice of commencement or otherwise, a notice
directed to and received by that person is effective against the contracting
owner.
(5) If the
contracting owner has held out a fictitious or nonexisting
person as contracting owner either by naming that person in the notice of
commencement or otherwise, a notice to that fictitious or nonexisting
person delivered at an address held out by the contracting owner as the address
of the fictitious or nonexisting person is effective
against the contracting owner.
(6) This
section shall apply to a lien claimant only when the contracting owner is a
protected party.
Source:
Laws 1981, LB 512, ? 11
Laws 2003, LB 655, ? 6
Cross References:
Nebraska Construction Lien Act,see section 52-125.
Annotations:
This section applies only to protected parties, and although
a party that may eventually claim a lien may, if it so desires, give notice of
lien liability to the contracting owner, such notice is not required. Midlands Rental & Mach., Inc. v. Christensen Ltd., 252 Neb.
806, 566 N.W.2d 115 (1997).
Section 52-136
Amount of lien.
(1)
Subject to subsection (3) of this section:
(a) The
lien of a prime contractor is for the unpaid part of his or her contract price;
and
(b) Except
as against a protected party contracting owner, the lien of a claimant other
than a prime contractor is for the amount unpaid under the claimant's contract.
(2) Except
as modified by subsections (4) and (5) of this section, as against a protected
party contracting owner, the lien of a claimant other than a prime contractor
is for the lesser of:
(a) The
amount unpaid under the claimant's contract; or
(b) The
amount unpaid under the prime contract through which the claimant claims at the
time the contracting owner receives the claimant's notice of the right to
assert a lien.
(3) The
lien of a claimant is reduced by the sum of the liens of claimants who claim
through him or her.
(4) If a protected
party contracting owner's lien liability under a particular prime contract as
provided in subsection (5) of this section is less than the sum of claims of
all claimants claiming through that particular prime contractor:
(a) Lien
claimants whose liens attach at different times have liens in the order of
attachment until the owner's lien liability is exhausted; and
(b) Among
claimants whose liens attach, or may attach, at the same time, each claimant's
lien is for his or her pro rata portion of the amount of the contracting
owner's lien liability to claimants whose liens attach at that time.
(5) A
protected party contracting owner's lien liability under a particular prime
contract is the prime contract price less payments
properly made thereon. A payment is properly made on a prime contract to the
extent that the payment:
(a) Is
made in good faith before the receipt by the contracting owner of a copy of a
recorded lien or of a notice of the right to assert a lien; or
(b) If
made after receipt by the contracting owner of a copy of a recorded lien or of
a notice of the right to assert a lien, is made in good faith and leaves unpaid
a part of the prime contract price sufficient to satisfy the unpaid claims of
all claimants who have provided a copy of a recorded lien or who have given
notice of the right to assert a lien and whose claims are not being satisfied
by the payment.
Source:
Laws 1981, LB 512, ? 12
Laws 2003, LB 655, ? 7
Annotations:
A potential purchaser's interest in a property does not satisfy
the requirements of "contracting owner" under subsection (3) of
section 52-127, and, therefore, potential purchasers cannot limit their
liability under subsection (5) of this section for construction liens properly
recorded before the filing of their own title document. Lincoln
Lumber Co. v. Lancaster, 260 Neb. 585, 618 N.W.2d 676 (2000).
The provisions of this section make it clear that a prime contractor is not
entitled to payment from the owner until the liens of the subcontractors are
satisfied. Action Heating & Air Cond. v. Petersen, 229
Neb. 796, 429 N.W.2d 1 (1988).
Under this section, regardless of whether a claimant other than a prime
contractor has substantially performed his or her contract, the claimant is
entitled to a lien for the reasonable value of the labor he or she has
performed and the material he or she has furnished. Sorenson
v. Dager, 8 Neb. App. 729, 601 N.W.2d 564 (1999).
Section 52-137
Attachment and enforcement of lien; recording required; time limitation;
attachment, when.
(1) A
claimant's lien does not attach and may not be enforced unless, after entering
into the contract under which the lien arises and not later than one hundred
twenty days after his or her final furnishing of services or materials, he or
she has recorded a lien.
(2) If a
lien is recorded while a notice of commencement is effective as to the
improvement in connection with which the lien arises, the lien attaches as of
the time the notice is recorded, even though visible commencement occurred
before the notice is recorded. A notice of commencement is not effective until
recording and, after recording, is effective until its lapse. A notice of
commencement lapses at the earlier of its expiration as provided in subsection
(2) of section 52-145 or the date it is terminated by a notice of termination
as provided in section 52-146.
(3) If a
lien is recorded while there is no recorded notice of commencement covering the
improvement in connection with which the lien arises, the lien attaches at the
earlier of visible commencement of the improvement or the recording of the
lien, but if visible commencement has occurred before or within thirty days
after the lapse of the last notice of commencement covering the improvement:
(a) The
lien attaches at the time the lien is recorded if the lien is recorded within
thirty days after lapse of the last effective notice of commencement; or
(b) The
lien relates back to and attaches thirty-one days after the termination date if
the lien is recorded more than thirty days after lapse of the last effective
notice of commencement.
(4) If new
construction is the principal improvement involved and the materials,
excavation, preparation of an existing structure, or other preparation are
readily visible on a reasonable inspection of the real estate, visible
commencement occurs when:
(a)
Materials are delivered to the real estate to which the lien attaches
preparatory to construction;
(b) Excavation on the real estate to which the lien attaches
is begun; or
(c)
Preparation of an existing structure to receive the new construction, or other
preparation of the real estate to which the lien attaches, is begun.
(5) In all
cases not covered by subsection (4) of this section the time visible
commencement occurs is to be determined by the circumstances of the case.
Source:
Laws 1981, LB 512, ? 13
Section 52-138
Priority among lien claimants.
(1) All
liens attaching at the same time have equal priority and share the amount
received upon foreclosure of the liens and available for distribution to
construction lien claimants in the same ratio as the ratio of the particular
lien bears to the total of all liens attaching at the same time.
(2) Except
as provided by subsection (3) of this section, liens attaching at different
times have priority in the order of attachment.
(3) A
claimant who records a notice of commencement after he or she has recorded a
lien has only equal priority with claimants who record a lien while the notice
of commencement is effective. Any priority which the claimant gained over third
parties by recording his or her notice of lien is preserved for the benefit of
all claimants having equal priority under this subsection.
Source:
Laws 1981, LB 512, ? 14
Section 52-139
Priority of construction liens as against claims other than construction
lien claims.
(1) Except
as provided in this section, a construction lien has priority over adverse
claims against the real estate as if the construction-lien claimant were a
purchaser for value without knowledge who had recorded at the time his or her
lien attached.
(2) Except
as provided in subsection (3) of this section, a construction lien has priority
over subsequent advances made under a prior recorded security interest if the
subsequent advances are made with knowledge that the lien has attached.
(3)
Notwithstanding knowledge that the construction lien has attached, or the
advance exceeds the maximum amount stated in the recorded security agreement
and whether or not the advance is made pursuant to a commitment, a subsequent
advance made under a security agreement recorded before the construction lien
attached has priority over the lien if:
(a) The
subsequent advance is made under a construction security agreement and is made
in payment of the price of the agreed improvements;
(b) The
subsequent advance is made or incurred for the reasonable protection of the
security interest in the real estate, such as payment for real property taxes,
hazard insurance premiums, or maintenance charges imposed under a condominium
declaration or other covenant; or
(c) The
subsequent advance was applied to the payment of any lien or encumbrance which
was prior to the construction lien.
(4) To the
extent that a subsequent security interest is given to secure funds used to pay
a debt secured by a security interest having priority over a construction lien
under this section, the subsequent security interest is also prior to the
construction lien.
(5) Even
though notice of commencement has been recorded, a buyer who is a protected
party takes free of all construction liens that are not of record at the time
his or her title document is recorded.
Source:
Laws 1981, LB 512, ? 15
Section 52-140
Duration of lien; demand to institute judicial proceedings; continuation of
lien during pendency of proceeding.
(1) Except
as provided in subsections (2) and (3) of this section, a lien that has become
enforceable as provided in sections 52-125 to 52-159 continues enforceable for
two years after recording of the lien.
(2) Except
as provided in subsection (3) of this section, if an owner, holder of a
security interest, or other person having an interest in the real estate gives
the claimant written demand to institute a judicial proceeding within thirty
days, the lien lapses unless within thirty days after receipt of the written
demand, the claimant institutes judicial proceedings or records an affidavit that
the total contract price is not yet due under the contract for which he or she
recorded the lien.
(3) If a
judicial proceeding to enforce a lien is instituted while a lien is effective
under subsection (1) or (2) of this section, the lien continues during the
pendency of the proceeding.
Source:
Laws 1981, LB 512, ? 16
Section 52-141
Surety bond; notice recorded; no lien attaches to real estate; bond,
requirements; copy to claimant; action against surety.
(1) A lien
does not attach to the real estate on behalf of any claimant claiming through a
particular prime contractor if the owner or the prime contractor has procured
from a surety company authorized to do business in this state a bond meeting
the requirements of this section and has recorded a notice of surety bond.
(2) The
bond must obligate the surety company, to the extent of the penal sum of the
bond, to pay all sums due to construction lien claimants other than the prime
contractor for services and materials supplied pursuant to the contract under
which the lien would otherwise arise.
(3) The
penal sum of the bond shall be not less than:
(a) Fifty
percent of the contract price, if the prime contract price is not more than one
million dollars;
(b) Forty
percent of the contract price, if the prime contract price is more than one
million dollars and not more than five million dollars;
(c)
Two million, five hundred thousand dollars, if the prime contract price is more
than five million dollars.
(4) The
person procuring the bond shall furnish on request a true copy at cost of
reproduction to any claimant and is liable to the requesting claimant for any
damages caused by failure, without justification, to furnish a copy.
(5) A claimant
may not recover under the bond provided for in this section unless he or she:
(a)
Institutes suit against the surety within one year after the completion of his
or her performance or within any longer period of time permitted by the terms
of the bond; and
(b) If he
or she is a claimant not having a direct contract relationship with the prime
contractor, within ninety days after completion of his or her performance gives
the prime contractor written notice of the amount due.
(6) A
claimant having a claim under the bond may proceed directly against the surety.
A judicial proceeding on the bond may be maintained separately from and without
bringing a judicial proceeding against the prime contractor and without
complying with the notice and recording procedures of sections 52-125 to
52-159. In any judicial proceeding brought on the bond the court shall award to
the prevailing party reasonable attorney's fees and court costs.
(7) The
obligation of a surety under this section is not affected by any change or
modification of the contract between the prime contractor and the contracting
owner, but the total liability of the surety may not exceed the penal sum of
the bond.
Source:
Laws 1981, LB 512, ? 17
Section 52-142
Substitution of collateral; release of lien; procedure.
(1) Any
person having an interest in real estate may release the real estate from liens
which have attached to it by:
(a)
Depositing in the office of the clerk of the district court of the county in
which the lien is recorded a sum of money in cash, certified check, or other
bank obligation, or a surety bond issued by a surety company authorized to do
business in this state, in an amount sufficient to pay the total of the amounts
claimed in the liens being released plus fifteen percent of such total; and
(b)
Recording, as provided in section 52-151, a certificate of the clerk of the
district court showing that the deposit has been made.
(2) The
clerk of the district court has an obligation to accept the deposit and issue
the certificate.
(3) Upon
release of the real estate from a lien under this section, the claimant's
rights are transferred from the real estate to the deposit or surety bond and
the claimant may establish his or her claim under sections 52-125 to 52-159,
and upon determination of the claim the court shall order the clerk of the
district court to pay the sums due or render judgment against the surety company
on the bond, as the case may be.