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18-44-118. Filing of bond in contest of lien.
Arkansas Code — all titles (historical 2020) · legal_authorities
18-44-118. Filing of bond in contest of lien.
(a)(1) In the event any person claiming a lien for labor or materials upon any property shall file such a lien within the time and in the manner required by law with the circuit clerk or other officer provided by law for the filing of such a lien, and if the owner of the property, any mortgagee or other person having an interest in the property, or any contractor, subcontractor, or other person liable for the payment of such a lien shall desire to contest the lien, then the person so desiring to contest the lien may file:
(A) With the circuit clerk or other officer with whom the lien is filed as required by law a bond with surety, to be approved by the officer in the amount of the lien claimed; or
(B) An action under subsection (f) of this section to protest the filing of the lien.
(2) The bond shall be conditioned for the payment of the amount of the lien, or so much of the lien as may be established by suit, together with interest and the costs of the action, if upon trial it shall be found that the property was subject to the lien.
(b)(1)(A) Upon the filing of the bond, if the circuit clerk or other officer before whom it is filed approves the surety, he or she shall give to the person claiming the lien, at his or her last known address, three (3) days' notice of the filing of the bond.
(B) The notice shall be in writing and served by any:
(i) Officer authorized by law to serve process in a civil action; or
(ii) Form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee.
(2)(A) Within the three (3) days' notice, the person claiming the lien may appear and question the sufficiency of the surety or form of the bon
Source: Arkansas Code — historical release 78 (November 6, 2020) · 18-44-118
Stored review status: Historical 2020-11-06 source release; later amendments not reconciled; machine-extracted, not independently legally reviewed; source heading status: text_in_historical_source. A text match is a research starting point; applicability is not established.
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Stable record: arkansas_code:legal_authorities:18-44-118
Source file: gov.ar.code.title.18.odt
Pages: Not recorded – Not recorded
Passage SHA-256: 50b550d704228284d081a99267fd9344590552e5d32206ddc490a636d68ebd34
Source location: content.xml paragraph 8886
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18-44-118. Filing of bond in contest of lien.
(a)(1) In the event any person claiming a lien for labor or materials upon any property shall file such a lien within the time and in the manner required by law with the circuit clerk or other officer provided by law for the filing of such a lien, and if the owner of the property, any mortgagee or other person having an interest in the property, or any contractor, subcontractor, or other person liable for the payment of such a lien shall desire to contest the lien, then the person so desiring to contest the lien may file:
(A) With the circuit clerk or other officer with whom the lien is filed as required by law a bond with surety, to be approved by the officer in the amount of the lien claimed; or
(B) An action under subsection (f) of this section to protest the filing of the lien.
(2) The bond shall be conditioned for the payment of the amount of the lien, or so much of the lien as may be established by suit, together with interest and the costs of the action, if upon trial it shall be found that the property was subject to the lien.
(b)(1)(A) Upon the filing of the bond, if the circuit clerk or other officer before whom it is filed approves the surety, he or she shall give to the person claiming the lien, at his or her last known address, three (3) days' notice of the filing of the bond.
(B) The notice shall be in writing and served by any:
(i) Officer authorized by law to serve process in a civil action; or
(ii) Form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee.
(2)(A) Within the three (3) days' notice, the person claiming the lien may appear and question the sufficiency of the surety or form of the bond.
(B) At the expiration of three (3) days, if the person claiming the lien shall not have questioned the sufficiency of the bond or surety or if the circuit clerk finds the bond to be sufficient, the circuit clerk shall note the filing of the bond upon the margin of the lien record and the lien shall then be discharged and the claimant shall have recourse only against the principal and surety upon the bond.
(c)(1) If no action to enforce the lien shall be filed within the time prescribed by law for the enforcement of a lien against the surety, the bond shall be null and void.
(2) However, if any action shall be timely commenced, the surety shall be liable in like manner as the principal.
(d) If the circuit clerk shall determine that the bond tendered is insufficient, the person tendering the bond shall have twenty-four (24) hours within which to tender a sufficient bond, and unless a sufficient bond shall be so tendered, the lien shall remain in full force and effect.
(e)(1) Any party aggrieved by the acceptance or rejection of the bond may apply to any court of competent jurisdiction by an action which is appropriate.
(2) Upon notice as required by law, the court shall have jurisdiction to enter an interlocutory order as may be necessary for the protection of the parties by:
(A) Requiring additional security for the bond;
(B) Reinstating the lien in default of the bond, pending trial and hearing; or
(C) Requiring acceptance of the bond as may be necessary for the protection of the parties.
(f)(1) A protest under subdivision (a)(1)(B) of this section shall be filed as a civil action in the circuit court of the county where the lien is filed.
(2) The issues in the action shall be limited to whether:
(A) The lien was filed in the form required by § 18-44-117; and
(B) All of the applicable requirements of §§ 18-44-114 and 18-44-115 were satisfied.
(3)(A) The summons shall be in customary form directed to the sheriff of the county in which the action is filed, with directions for service of the summons on the named defendants. In addition, the clerk of the circuit court shall issue and direct the sheriff to serve upon the named defendants a notice in the following form:
“NOTICE OF INTENTION TO DISCHARGE LIEN You are hereby notified that the attached complaint in the above-styled cause claims that you have not satisfied the requirements for claiming a lien upon the property described in the complaint and seeks to have the lien discharged by the court. If, within five (5) days, excluding Sundays and legal holidays, from the date of service of this notice, you have not filed in the office of the clerk of this court a written objection to the claims made against you by the plaintiff, then an order discharging the lien shall be issued immediately by the court. If you should file a written objection to the allegations of the complaint of the plaintiff within five (5) days, excluding Sundays and legal holidays, from the date of service of this notice, a hearing will be scheduled by the court to determine whether or not the lien should be discharged.”
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(B) If within five (5) days, excluding Sundays and legal holidays, following service of the summons, complaint, and notice the defendant or defendants have not filed a written objection to the claim of the plaintiff, the court shall immediately issue an order discharging the lien upon the property described in the complaint.
(C) If a written objection to the claim of the plaintiff is filed by the defendant or defendants within five (5) days from the date of service of the notice, summons, and complaint, the plaintiff shall obtain a date for the hearing of the plaintiff's complaint and shall give notice of the date, time, and place of the hearing to all defendants.
(4)(A) The action shall be heard as expeditiously as the business of the circuit court permits.
(B) Evidence may be presented by affidavit, subject to Rule 56(e),(f), and (g) of the Arkansas Rules of Civil Procedure.
(5) If the circuit court finds that the lien was not in the form required by § 18-44-117 or that the applicable requirements of §§ 18-44-114 and 18-44-115 were not satisfied, then the circuit court shall enter an order discharging the lien.
(6) The prevailing party shall be entitled to a reasonable attorney's fee and the costs of the protest.
(g) Nothing in this section shall be construed to limit the right of an owner, mortgagee, or any other person with an interest in the property to contest the lien by declaratory judgment proceedings under § 16-111-101 et seq.
Cross-references
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Arkansas Code — all titles (historical 2020) · legal_authorities
16-111-101. Scope.
Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.
Source: Arkansas Code — historical release 78 (November 6, 2020) · 16-111-101
Stored review status: Historical 2020-11-06 source release; later amendments not reconciled; machine-extracted, not independently legally reviewed; source heading status: text_in_historical_source. The source passage cites 16-111-101. This identifies an authority to review, not proof of applicability.
Arkansas Code — all titles (historical 2020) · legal_authorities
18-44-114. Notice and service generally.
(a) Every person who may wish to avail himself or herself of the benefit of the provisions of this subchapter shall give ten (10) days' notice before the filing of the lien, as required in § 18-44-117(a), to the owner of a building or improvement that he or she holds a claim against the building or improvement, setting forth the amount and from whom it is due.
(b)(1) The notice may be served by any:
(A) Officer authorized by law to serve process in a civil action;
(B) Person who would be a competent witness;
(C) Form of mail addressed to the person to be served, with a return receipt requested and delivery restricted to the addressee or the agent of the addressee; or
(D) Means that provides written, third-party verification of delivery at any place where the owner of the building or improvement maintains an office, conducts business, or resides.
(2)(A)(i) When served by an officer, his or her official return endorsed on the notice shall be proof of the service.
(ii) When served by any other person, the fact of the service shall be verified by affidavit of the person serving the notice.
(B)(i) When served by mail, the service shall be:
(a) Complete when mailed; and
(b) Verified by a return receipt signed by the addressee or the agent of the addressee, or a returned envelope, postal document, or affidavit by a postal employee reciting or showing refusal of the notice by the addressee or that the item was unclaimed.
(ii) If delivery of the mailed notice is refused by the addressee or the item is unclaimed:
(a) The lien claimant shall immediately send the owner of the building or improvement a copy of the notice by first class mail and may proceed to file his or her lien; and
(b) The unopened original of t
Source: Arkansas Code — historical release 78 (November 6, 2020) · 18-44-114
Stored review status: Historical 2020-11-06 source release; later amendments not reconciled; machine-extracted, not independently legally reviewed; source heading status: text_in_historical_source. The source passage cites 18-44-114. This identifies an authority to review, not proof of applicability.
Arkansas Code — all titles (historical 2020) · legal_authorities
18-44-115. Notice to owner by contractor — Definitions.
(a)(1) No lien upon residential real estate containing four (4) or fewer units may be acquired by virtue of this subchapter unless the owner of the residential real estate, the owner's authorized agent, or the owner's registered agent has received, by personal delivery or by certified mail, a copy of the notice set out in this subsection.
(2) The notice required by this subsection shall not require the signature of the owner of the residential real estate, the owner's authorized agent, or the owner's registered agent in an instance when the notice is delivered by certified mail.
(3) It shall be the duty of the residential contractor to give the owner, the owner's authorized agent, or the owner's registered agent the notice set out in this subsection on behalf of all potential lien claimants before the commencement of work.
(4) If a residential contractor fails to give the notice required under this subsection, then the residential contractor is barred from bringing an action either at law or in equity, including without limitation quantum meruit, to enforce any provision of a residential contract.
(5)(A) Any potential lien claimant may also give notice.
(B)(i) If before commencing work or supplying goods a subcontractor, material supplier, laborer, or other lien claimant gives notice under this section, the notice shall be effective for all subcontractors, material suppliers, laborers, and other lien claimants not withstanding that the notice was given after the project commences as defined under § 18-44-110(a)(2).
(ii) If the notice relied upon by a lien claimant to establish a lien under this subchapter is given by another lien claimant under subdivision (a)(5)(B)(i) of this section after the projec
Source: Arkansas Code — historical release 78 (November 6, 2020) · 18-44-115
Stored review status: Historical 2020-11-06 source release; later amendments not reconciled; machine-extracted, not independently legally reviewed; source heading status: text_in_historical_source. The source passage cites 18-44-115. This identifies an authority to review, not proof of applicability.
Arkansas Code — all titles (historical 2020) · legal_authorities
18-44-117. Filing of lien.
(a)(1) A person who wishes to avail himself or herself of the provisions of this subchapter has a duty to file with the clerk of the circuit court of the county in which the building, erection, or other improvement to be charged with the lien is situated and within one hundred twenty (120) days after the things specified in this subchapter have been furnished or the work or labor done or performed:
(A) A just and true account of the demand due or owing to him or her after allowing all credits; and
(B) An affidavit of notice attached to the lien account.
(2)(A) The lien account shall contain a correct description of the property to be charged with the lien, verified by affidavit.
(B) For real property, a street address is not a correct description of the property under subdivision (a)(2)(A) of this section.
(3) The affidavit of notice shall contain:
(A) A sworn statement evidencing compliance with the applicable notice provisions of §§ 18-44-114 — 18-44-116;
(B) A copy of each applicable notice given under §§ 18-44-114 — 18-44-116; and
(C) A copy of the proof of service required under § 18-44-114.
(b)(1)(A) The clerk of the circuit court has a duty to endorse upon every account the date of its filing and to make an abstract of the account in a book kept by him or her for that purpose, properly indexed.
(B) This abstract shall contain:
(i) The date of the filing;
(ii) The name of the person laying or imposing the lien;
(iii) The amount of the lien;
(iv) The name of the person against whose property the lien is filed; and
(v) A description of the property to be charged with the lien.
(C) For real property, a street address is not a sufficient description under subdivision (b)(1)(B) of this section.
(2) For this
Source: Arkansas Code — historical release 78 (November 6, 2020) · 18-44-117
Stored review status: Historical 2020-11-06 source release; later amendments not reconciled; machine-extracted, not independently legally reviewed; source heading status: text_in_historical_source. The source passage cites 18-44-117. This identifies an authority to review, not proof of applicability.