(as published in the Idaho Business Review, February 2008)

The purpose of the Idaho lien statutes, Idaho Code § 45-501 through § 45-525, is to protect the right of contractors, material suppliers, and others who perform work or enhance the value of the property of another.  It is usually held that a general enactment for the protection of laborers and materialmen will not extend to an architect who simply prepares plans and specifications. 
 
        The decisions throughout state courts are consistent on this point, except for those states whose statutes specifically identify architects as those with a lien right.  Thus, architects are considered under some state lien statutes as those who perform lienable work.  In Idaho, however, whether architects have a right to a claim of lien is an open question. 

  Idaho Code § 45-501 provides a lien right to certain persons who improve real property.  The first part of the statute states: “Every person performing labor upon, or furnishing materials to be used in the construction, alteration or repair of any . . . building. . . and every professional engineer or licensed surveyor under contract who prepares or furnishes designs, plans, plats  . . . has a lien upon the same for the work or labor done or professional services or material furnished.”   

Although professional engineers and licensed surveyors are mentioned as those who have a right to lien, architects are not explicitly included.   

The next clause in the statute, however, does mention architects.  It states “every contractor, subcontractor, architect, builder, or any person having charge of any mining claim, or of the construction, alteration or repair, either in whole or in part, of any building or other improvement, as aforesaid, shall be held to be the agent of the owner for the purpose of this chapter.”  I.C. § 45-501.   

Idaho courts have accepted the universally recognized rule of statutory construction that, where a statute specifies certain things, the designation of such things excludes all others.  Thus, it appears that the drafters of the statute intended that architects be included as those who may be “agents” of the owner, but not necessarily as those who have a right to lien.  
        Because the Idaho legislature did not include architects in the lien part of the statute, the argument can be made that the legislature intended to exclude architects as persons who are entitled to a materialman’s lien under the statute.  Furthermore, the next clause of the statute includes “architects” as those who are “held to be the agent of the owner.”  I.C. § 45-501.   

In addition, I.C. § 45-512, which declares the priority of lien claimants, does not mention architects.  The statutory language shows that the legislature indeed thought about architects, and it was not mere inadvertence to leave them out of the statute as those who have a lien right. 

Every issue has more than one side, so what is the argument if one is looking to establish lien rights for architects?  The counter position is that architects should have a right to lien because they are those who have arguably improved the property by providing architectural plans utilized in the ultimate improvement of the property.  The argument can be made that architects are providing professional services, just as a professional engineer or licensed surveyor.   

At this point the reader may be thinking, “Okay, this debate is all very interesting, but where does Idaho stand on this issue today?”  The Idaho Supreme Court has not decided the question of whether architects have a lien right in Idaho.  The only appellate case to mention the issue was Bastian v. Gafford in 1977.  There, the court stated that they were not deciding whether the lien statutes “should be construed to hold that performing labor upon, or furnishing materials to be used in the construction of a building includes the drafting of architectural plans.”  

In the end, it is unclear whether architects have a lien in Idaho.  Even though Idaho courts have recognized that the lien statutes are to be liberally construed in the favor of those who perform labor or furnish materials to be used in the construction, alteration, or repair of a building or structure, this rule still does not permit courts to recognize a lien where none exists or where none was intended by the legislature.   

            Post Note:  Additional articles on lien rights previously published in the Idaho Construction Review can be found on Meuleman Mollerup’s website, www.lawidaho.com:  Arnie Wagner’s “Mechanic’s Lien Placed on Your Project Cannot Be Ignored,” and Jon Bauer’s “Contractors, Be Aware of Other States’ Lien Rights.”