TITLE 34
Property

CHAPTER 34-28
Mechanics' Liens

SECTION 34-28-17


§ 34-28-17 Dismissal of complaint, notice of lien, and release of lien upon deposit in court.

(a) At any time after the recording of a notice of intention or after the filing of a complaint to enforce a lien under §§ 34-28-10 and 34-28-13, the owner or lessee or tenant of the land described in the notice or complaint may pay into the registry of the court in the county in which the land is located cash equal to the total amount of the notice of intention and the accounts and demands of all persons claiming liens therein under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7, including costs, interest at the statutory rate and reasonable attorney's fees of the lien holder, or may, in lieu of cash, deposit in the registry of the court the bond of a surety company licensed to do business in this state in the total amount including costs, interest at the statutory rate and reasonable attorney's fees running to all persons claiming liens under §§ 34-28-10 and 34-28-13, and on proper proof of payment or deposit and on motion of the owner or lessee or tenant, any justice of the superior court shall enter ex parte an order discharging the notice of intention and lis pendens and dismissing the cause as to the owner or lessee or tenant and as to all persons having any title, claim, lease, mortgage, attachment or other lien or encumbrance (other than under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7), and on the entry of the order, the building, canal, turnpike, railroad or other improvement and the land on which the improvement is being or has been constructed, erected, altered, or repaired shall be released and discharged from the notices of intentions and accounts and demands, but the rights of all persons having any title, claim, lease, mortgage, attachment or other lien or encumbrance (other than under § 34-28-1, 34-28-2, 34-28-3 or 34-28-7) shall be the same as if no notices of intention under § 34-28-4 had been mailed or filed and as if no complaint under §§ 34-28-10 and 34-28-13 had been filed. In the event that a payment is made into the registry of court in accordance with this section, any person, having a contract directly with the person making the payment, may be permitted, after notice to all parties under the complaint and after hearing in open court, to withdraw from the registry of court the sum of money due to him or her under the contract, provided that the person making the withdrawal first furnish a bond, payable to the clerk of court, with good and sufficient corporate surety, for the repayment of the amount, or as much thereof as may be necessary to satisfy claims thereinafter allowed by the court.

(b) Notwithstanding the foregoing provisions, after depositing cash or the bond of a surety company the following shall apply:

(1) In the event that a notice of intention has been recorded, but no complaint filed, the person or other entity claiming the lien shall file the complaint against the surety within the time limits as noted in § 34-28-10. In the event of a cash deposit as noted in § 34-28-17, the complaint shall be brought against the clerk of the respective superior court for any deposit that is posted in the registry within the time limits as noted in § 34-28-10.

(2) In the event that the complaint has been filed with the appropriate superior court, and after depositing cash or the bond of a surety company and discharging the notice of intention and lis pendens, and dismissing the cause as noted in this section, the lien plaintiff shall amend the complaint, to include the surety as defendant within sixty (60) days after the person or entity claiming the lien is given notice of the order in regard to the bond. In the event of a cash deposit as noted in § 34-28-17, the complaint shall be amended and brought against the clerk of the respective superior court for any cash deposit that is posted in the registry within sixty (60) days after the person or entity claiming the lien is given notice of this order in regard to the cash deposit.

(c) The complaint filed against a surety, or the clerk of any respective superior court, pursuant to subsection (b) of this section need not comply with any procedural requirements of §§ 34-28-10, 34-28-11, 34-28-12, 34-28-14, or 34-28-15.

History of Section.
(P.L. 1965, ch. 235, § 1; P.L. 1966, ch. 197, § 4; P.L. 1991, ch. 328, § 1; P.L. 2006, ch. 630, § 1; P.L. 2008, ch. 75, § 1; P.L. 2008, ch. 345, § 1.)