SB 195: "An Act relating to common law liens, to remedies, costs, and fees imposed for the registration, filing, or recording of certain nonconsensual common law liens, and to penalties for recording common law liens."
00SENATE BILL NO. 195 01 "An Act relating to common law liens, to remedies, costs, and fees imposed for 02 the registration, filing, or recording of certain nonconsensual common law liens, 03 and to penalties for recording common law liens." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 09.38.500(9) is amended to read: 06 (9) "lien" means 07 (A) a security interest; 08 (B) [, OR] a judicial or [,] statutory [, OR COMMON-LAW] 09 lien; 10 (C) a common law lien on property 11 (i) only if the lien was consented to by the owner of 12 the property affected; or 13 (ii) if not consented to by the owner of the property 14 affected as provided in (i) of this subparagraph, only when the lien
01 is accompanied by a specific order authorizing the recording or 02 filing of the lien issued by a court of competent jurisdiction 03 recognized under state or federal law, which order shall be 04 recorded or filed with the lien; [,] or 05 (D) any [OTHER] interest in property other than one 06 described in (A) - (C) of this paragraph securing payment of a debt or 07 performance of an obligation; 08 * Sec. 2. AS 09.45 is amended by adding new sections to read: 09 Article 2A. Actions Relating to Nonconsensual Common Law Liens. 10 Sec. 09.45.161. Lien against public servant. If a nonconsensual common law 11 lien is recorded or filed against the property of a public servant based upon the 12 performance or nonperformance of the public servant's duties or having no stated basis 13 and the nonconsensual common law lien was not accompanied by a specific order from 14 a court of competent jurisdiction recognized under state or federal law authorizing the 15 filing of the lien and recorded or filed with the lien, an attorney representing the public 16 servant 17 (1) may sign, submit for recording or filing, and record or file a notice 18 of invalid lien; and 19 (2) shall mail a copy of the notice of invalid lien submitted for 20 recording or filing under (1) of this section to the person who recorded or filed the lien 21 at the person's last known address. 22 Sec. 09.45.164. Request for release of nonconsensual common law lien. (a) 23 A person whose real or personal property is subject to a claim of nonconsensual 24 common law lien that has been recorded or filed may submit to a court of competent 25 jurisdiction a request that the court order the release of the claim of the nonconsensual 26 common law lien. The request must state the grounds upon which relief is sought and 27 must be supported by the affidavit of the person making the request or that person's 28 attorney setting out a concise statement of the facts upon which the request is based. 29 (b) If facts alleging the need for an expedited decision are averred, the request 30 may ask the court to order the person claiming the nonconsensual common law lien 31 to appear at a hearing within 20 days of the service of the request and order on the
01 lien claimant. The order may be granted ex parte and shall state that, if the lien 02 claimant fails to appear at the time and place specified, the claim of nonconsensual 03 common law lien shall be released, and the lien claimant shall be ordered to pay the 04 costs and actual reasonable attorney fees incurred by the party making the request. 05 (c) If the court determines that the claim of nonconsensual common law lien 06 is invalid, the court shall issue an order releasing the claim of lien and awarding costs 07 and actual reasonable attorney fees to the party making the request. If the court 08 determines that the claim of nonconsensual common law lien is valid, the court shall 09 issue an order stating the claim of the lien is valid and shall award costs and actual 10 reasonable attorney fees to the lien claimant. 11 Sec. 09.45.167. Liability of nonconsensual common law lien claimant or 12 grantee. (a) A person who offers a claim of nonconsensual common law lien for 13 recording or filing that is not accompanied by a specific order from a court of 14 competent jurisdiction recognized under state or federal law authorizing the recording 15 or filing of the lien is liable to the owner of the property affected by the lien for actual 16 and punitive damages, as well as costs and actual reasonable attorney fees. 17 (b) A grantee or other person purportedly benefited by a claim of 18 nonconsensual common law lien that has been recorded or filed who refuses to release 19 the lien upon request of the owner of the property affected by the lien is liable to the 20 owner for actual and punitive damages, as well as costs and actual reasonable attorney 21 fees. 22 Sec. 09.45.169. Definitions. In AS 09.45.161 - 09.45.169, 23 (1) "filed" means the acceptance of a document by a department or 24 person having responsibility for the receipt and filing of documents that may be filed 25 and that are presented for filing in the place of filing designated by law, whether or 26 not under applicable law the department or person is directed to file the document; 27 (2) "nonconsensual common law lien" means a lien on real or personal 28 property that 29 (A) is not provided for by a specific state or federal statute; 30 (B) does not depend on the consent of the owner of the property 31 affected for its existence; and
01 (C) is not an equitable, constructive, or other lien imposed by 02 a court recognized under state or federal law; 03 (3) "public servant" means each of the following, whether compensated 04 or not: 05 (A) an officer or employee of the state, a municipality or other 06 political subdivision of the state, or a governmental instrumentality of the state; 07 (B) a person who serves as a member of a board or commission 08 created by statute or by legislative, judicial, or administrative action by the 09 state, a municipality or other political subdivision of the state, or a 10 governmental instrumentality; 11 (C) an officer or employee of a federal agency, a member of the 12 military or naval forces of the United States, a member of the National Guard 13 while engaged in training or duty, or a person acting on behalf of a federal 14 agency in an official capacity, temporarily or permanently in the service of the 15 United States, whether with or without compensation; or 16 (D) a person nominated, elected, appointed, employed, or 17 designated to act in a capacity defined in (A) - (C) of this paragraph, but who 18 does not occupy the position; 19 (4) "record" means the acceptance of a document by the recorder that 20 the recorder has determined is recordable under AS 40.17 and that is presented for 21 recording in the place of recording designated for the recording district where affected 22 property is located whether or not the place of recording is in that district and whether 23 or not under applicable law the recorder is directed to record the document; 24 (5) "recorder" means the commissioner of natural resources or the 25 person designated by the commissioner of natural resources to perform the duties set 26 out in AS 40.17. 27 * Sec. 3. AS 11.46.550 is amended to read: 28 Sec. 11.46.550. Offering a false instrument for recording in the first 29 degree. (a) A person commits the crime of offering a false instrument for recording 30 in the first degree if, knowing that a written instrument relating to or affecting 31 property or directly affecting a contractual relationship contains a false statement or
01 false information, and with intent to defraud, the person presents or offers it to a public 02 office or a public servant intending that it be registered, filed, or recorded or become 03 a part of the records of that public office or public servant. 04 (b) Offering a false instrument for recording in the first degree is a class C 05 felony. 06 * Sec. 4. AS 11.46 is amended by adding a new section to read: 07 Sec. 11.46.560. Offering a false instrument for recording in the second 08 degree. (a) A person commits the crime of offering a false instrument for recording 09 in the second degree if, 10 (1) under AS 40.17, the person presents a lien to the recorder for 11 registration, filing, or recording with reckless disregard that the lien is not 12 (A) provided for by a specific state or federal statute; or 13 (B) a lien imposed or authorized by a court recognized under 14 state or federal law; or 15 (2) under a law authorizing the receipt and filing of a document, the 16 person presents a lien to a department or person having responsibility to accept a lien 17 for filing with reckless disregard that the lien is not 18 (A) provided for by a specific state or federal statute; or 19 (B) a lien imposed or authorized by a court recognized under 20 state or federal law. 21 (b) In a prosecution under (a) of this section, it is an affirmative defense that 22 the owner of the property affected has consented to the lien. 23 (c) In this section, 24 (1) "lien" means an encumbrance on property as security for the 25 payment of a debt; 26 (2) "recorder" means the commissioner of the Department of Natural 27 Resources or the person designated by the commissioner of natural resources to 28 perform the duties set out in AS 40.17. 29 (d) Offering a false instrument for recording in the second degree is a class 30 A misdemeanor. 31 * Sec. 5. AS 34.35 is amended by adding a new section to read:
01 Sec. 34.35.950. Nonconsensual common law liens. (a) A nonconsensual 02 common law lien is invalid unless the lien is authorized by an order of a court of 03 competent jurisdiction recognized under state or federal law. 04 (b) A person may not submit a nonconsensual common law lien under 05 AS 40.17 to the recorder in order to record the lien unless the lien is accompanied by 06 a specific order authorizing the recording of the lien issued by a court of competent 07 jurisdiction recognized under state or federal law. When a nonconsensual common law 08 lien is submitted for recording under this subsection, the court order accompanying the 09 lien shall be recorded with the lien. 10 (c) A person may not submit a nonconsensual common law lien under a law 11 authorizing the filing of a lien against personal property in order to file the lien unless 12 the lien is accompanied by a specific order authorizing the filing of the lien issued by 13 a court of competent jurisdiction recognized under state or federal law. When a 14 nonconsensual common law lien is submitted for filing under this subsection, the court 15 order accompanying the lien shall be filed with the lien. 16 (d) In this section, 17 (1) "filed" means the acceptance of a document by a department or 18 person having responsibility for the receipt and filing of documents that may be filed 19 and that are presented for filing in the place of filing designated by law, whether or 20 not under applicable law the department or person is directed to file the document; 21 (2) "nonconsensual common law lien" means a lien on real or personal 22 property that 23 (A) is not provided for by a specific state or federal statute; 24 (B) does not depend on the consent of the owner of the property 25 affected for its existence; and 26 (C) is not an equitable, constructive, or other lien imposed by 27 a court recognized under state or federal law; 28 (3) "record" means the acceptance of a document by the recorder that 29 the recorder has determined is recordable under AS 40.17 and that is presented for 30 recording in the place of recording designated for the recording district where affected 31 property is located whether or not the place of recording is in that district and whether
01 or not under applicable law the recorder is directed to record the document; 02 (4) "recorder" means the commissioner of natural resources or the 03 person designated by the commissioner of natural resources to perform the duties set 04 out in AS 40.17.