52-137. Attachment and enforcement of lien; recording required; time limitation; attachment, when.
509 words·~2 min read·
/ne/chapter-52/52-137A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
(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.
Attachment is a priority concept, and the time of attachment is the claimant's priority date against third parties, such as judgment creditors or holders of security interests. Nore Electric v. S & H Holdings, 316 Neb. 197, 3 N.W.3d 895 (2024).
Failing to obtain priority does not prevent a construction lien from attaching, nor does it automatically extinguish the lien. Nore Electric v. S & H Holdings, 316 Neb. 197, 3 N.W.3d 895 (2024).
The prime purpose of a notice of commencement is to eliminate as a controvertible question of fact the time of visible commencement of operations by providing a method to determine this time with certainty. Borrenpohl v. DaBeers Properties, 276 Neb. 426, 755 N.W.2d 39 (2008).