(a) Such lien as to the land and buildings or improvements thereon, shall have priority over all other liens, mortgages, or incumbrances created subsequent to the commencement of work on the building or improvement. Except to the extent provided in subsection (b) below, all liens, mortgages, and incumbrances (in this section, “mortgages and other liens”) created prior to the commencement of such work shall have priority over all liens for such work. Enforcement of such lien of a mechanic, materialman, or other person created by Section 35-11-210 (in this section, “mechanic or materialman lien”) shall not affect any prior mortgage or other lien, and the purchaser in connection with the enforcement of such mechanic or materialman lien shall take the property subject to such prior mortgages and other liens of which the purchaser has actual or constructive notice on the date of the purchase. Foreclosure of any prior mortgage or other lien shall terminate and extinguish such subordinate mechanic or materialman lien or other interest as to the land and the buildings and improvements thereon, whether or not at the time of such foreclosure such lien or interest has been perfected in accordance with the provisions of this division, and the mechanic, materialman, or other person thereafter shall have, to the extent of his lawful claim under this division, the statutory right of redemption afforded under applicable redemption laws to a judgment creditor whose judgment was recorded on the date such work was commenced and such rights in any excess proceeds received by the foreclosing lienholder as provided by law.
(b) As to liens, mortgages, or incumbrances created prior to the commencement of the work, the lien for such work shall have priority only against the building or improvement, the product of such work which is an entirety, separable from the land, building, or improvement subject of the prior lien, mortgage, or incumbrance, and which can be removed therefrom without impairing the value or security of any prior lien, mortgage or incumbrance; and the person entitled to such lien may have it enforced, at any time prior to the foreclosure of such prior lien, mortgage, or incumbrance, by a sale of such buildings or improvement under the provisions of this division and the purchaser may, within a reasonable time thereafter, remove the same. If such mechanic or materialman lien for such work is not enforced prior to such foreclosure, the mechanic or materialman lien shall be terminated and extinguished and after such foreclosure, the mechanic, materialman, or other person who held such mechanic or materialman lien thereafter shall have the statutory right of redemption and such rights in excess proceeds to the extent provided in subsection (a) above.
(c) The provisions of this section clarify and confirm the intent of the Legislature regarding existing law governing the matters contained in this section. The provisions of this section shall apply to all mortgages and other liens and to all liens of a mechanic, materialman, or other person created by Section 35-11-210 existing on February 23, 1990, and those created or arising after February 23, 1990.
(Code 1876, §3442; Code 1886, §3019; Code 1896, §2724; Code 1907, §4755; Code 1923, §8833; Acts 1933, Ex. Sess., No. 64, p. 54; Code 1940, T. 33, §38; Acts 1990, No. 90-98, p. 107.)
Notes of Decisions
Bailey Mortg. Co. v. Gobble-Fite Lumber Co., 565 So. 2d 138 (Ala. 1990).
· cites it 10× “Bailey Mortgage claims that, despite its foreclosure on the four mortgages, it retains priority as a mortgagee by virtue of Ala.Code 1975, § 35-11-211. Before we can determine whether Bailey Mortgage has a meritorious defense established by a viable theory, and because of some…”
Ex Parte Lawson, 6 So. 3d 7 (Ala. 2008).
· cites it 8× “In each action, Lawson asserted that her lien took priority over the lenders' mortgages pursuant to § 35-11-211, Ala.Code 1975, and she requested that the trial court order the sale of each of those parcels in order to pay Lawson the amount due on each lien.”
Lawson v. Brian Homes, Inc., 6 So. 3d 1 (Ala. Civ. App. 2006).
· cites it 15× “I believe the main opinion misinterprets the proper operation of Ala.Code 1975, § 35-11-211, and the doctrine of equitable subrogation.”
Ex Parte Douthit, 480 So. 2d 547 (Ala. 1985).
· cites it 5× “Code 1975, § 35-11-211, states in pertinent part: "Such lien as to the land and buildings or improvements thereon, shall have priority over all other liens, mortgages or incumbrances created subsequent *552 to the commencement of work on the building or improvement.”
Saunders v. Lawson, 982 So. 2d 1091 (Ala. Civ. App. 2006).
· cites it 3× “Nonetheless, Lawson asserted that her *1093 lien took priority over Chase's mortgage pursuant to § 35-11-211, Ala.Code 1975, and she requested that the trial court order a sale of the Saunderses' residence in order to pay Lawson the amount due on her lien.”
Hogan v. Carter, 431 So. 2d 1160 (Ala. 1983).
· cites it 2× “If the trial court determines this as a factual matter, and assuming that the notice of lien and the suit were timely filed and properly perfected, then those judgment creditors who established valid materialmen's liens as original contractors would stand on an equal footing,…”
Starek v. TKW, INC., 410 So. 2d 35 (Ala. 1982).
“Code 1975, § 35-11-211, states that "[s]uch lien as to the land and buildings or improvements thereon, shall have priority over all other liens, mortgages or incumbrances created subsequent to the commencement of work on the building...." (Emphasis added.) This statute omits any…”
Foster v. Porter Bridge Loan Co., Inc., 27 So. 3d 481 (Ala. 2009).
“This decision was based on the language of the material-man’s lien statute, § 35-11-211, Ala.Code 1975, which expressly provides that mate-rialman’s liens “shall have priority over all other liens, mortgages or incumbrances created subsequent to the commencement of work on the…”
Bank of Gadsden v. Dixie Heating & Cooling Co., 425 So. 2d 491 (Ala. Civ. App. 1983).
“Section 35-11-211, Code 1975, provides for the priority of a lien as follows: “Such lien as to the land and buildings or improvements thereon, shall have priority over all other liens, mortgages or incumbrances created subsequent to the commencement of work on the building or…”
Lawson v. Brian Homes, Inc., 6 So. 3d 7 (Ala. 2008).
· cites it 3× ““The trial court entered summary judgments in favor of the lenders and the purchasers in all of Lawson’s lien-enforcement actions, noting that Lawson might otherwise have priority pursuant to § 35-11-211, AIa.Code 1975 (the ma- *10 terialman’s lien priority statute), but that,…”
— Ala. Code § 35-11-211(a) — 2 cases
Ex Parte Lawson, 6 So. 3d 7 (Ala. 2008).
“In each action, Lawson asserted that her lien took priority over the lenders' mortgages pursuant to § 35-11-211, Ala.Code 1975, and she requested that the trial court order the sale of each of those parcels in order to pay Lawson the amount due on each lien.”
Lawson v. Brian Homes, Inc., 6 So. 3d 1 (Ala. Civ. App. 2006).
“I believe the main opinion misinterprets the proper operation of Ala.Code 1975, § 35-11-211, and the doctrine of equitable subrogation.”
— Ala. Code § 35-11-211(b) — 1 case
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