Nebraska State Statutes (as of 4/13/07)

Nebraska Construction Lien Act

Liens recorded with County Registers of Deeds

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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;

(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;

(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;

(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.