The Oklahoma Bar Journal June 2024

or his duly authorized agent. Where a materialman seeks to assert a lien for material fur nished to a lessee who holds under a written contract with the lessor, and it fails to appear that the lessee was constituted by the landowner as his agent to purchase the material, the lien of the materialman can extend no further than the improvements constructed out of the material furnished. 24 However, the court in Deka stated that a lien would attach to all of the real property , where – under a lease – “the owner is obligated to reimburse the tenant for the cost of the improvements or where such improvements are made for the primary benefit of the owner.” 25 But, as is clear from the following quote, mere reversion of the improve ments to the owner at the termina tion of the lease does not mean the improvements “are made for the primary benefit of the owner.” Regarding when a lien attaches to improvements , the court said:

Where the owner leases lands under a written contract which provides that the tenant shall at his own expense make such improve ments thereon as are necessary to make the premises adaptable for the purposes for which they are leased, and the lease further provides that the improvements shall revert to the owner at the termination thereof, a materialman furnishing material for making the improvements under contract with lessee is not entitled to a lien against the land, but he may be entitled to a lien against the improve ments in certain circumstances . 26 Furthermore, for a lien to attach to the improvements , the improve ments resulting from the labor and/or materials provided by the claimant must be such that they are “removable without damage to the original structure”: Had the claimants merely repaired or made minor alter ations to existing structures on the premises, they would not have acquired liens on the

furtherance of justice as pleadings may be in any matter.” 22

TIME REQUIRED BETWEEN A PRE-LIEN NOTICE AND A LIEN STATEMENT When a pre-lien notice is required, it must be sent “prior to the filing of a lien statement.” 23 Technically, the lien statement can be filed the same day as the pre-lien notice was sent as long as the pre lien notice is sent first. However, to avoid having to prove that a pre-lien notice that is postmarked one day was sent before a lien statement was filed that same day, the lien state ment should be filed at least one day after the pre-lien notice is sent (assuming that still leaves enough time to timely file the lien). Title 42 Okla. Stat. §141 provides, among other things, “If the title to the land is not in the person with whom such contract is made, the lien shall be allowed on the buildings and improvements on such land separately from the real estate.” This quoted language has been a part of Oklahoma’s lien law since 1923, but it has caused substantial confusion, especially when a contractor deals with a tenant or a person purchasing the property under a contract not yet fully executed (rather than the owner of a property). However, cases provide some guidance. In Deka Development Co. v. Fox , the court quoted from an earlier opinion: The right of a materialman to a lien depends upon contract. Such contract may be either oral or written. If a lien is asserted against real estate, the contract must be made by the owner PROBLEMS IN DEALINGS WITH TENANTS AND VENDEES

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

14 | JUNE 2024

THE OKLAHOMA BAR JOURNAL