Ark. Code Ann. § 18-44-110 (2026)

Research References

Ark. L. Rev.

Subordination of Mortgage Security to a Negotiable Promissory Note, 5 Ark. L. Rev. 183.

The Extent of the Debts Secured by a Mortgage in Arkansas, 9 Ark. L. Rev. 45.

Problems of Escrow and Loan Closing, 13 Ark. L. Rev. 34.

Note, BB & B Construction Company v. F.D.I.C. — Mechanics' and Materialmen's Liens in Arkansas: Priorty as a Function of Removability, 48 Ark. L. Rev. 783.

Note, The Vendor's Lien Revisited in Agri Bank FCB v. Maxfield, 49 Ark. L. Rev. 353.

Case Notes

Construction.

Although § 18-44-101 provides which materialman shall receive protection by a land improvement lien as well as the nature and the extent of the lien, this section still sets forth the priority of these liens to other encumbrances and the nature of the lien's attachment. BB & B Constr. Co. v. FDIC, 316 Ark. 663, 875 S.W.2d 48 (1994).

Despite the 1969 amendment to § 18-44-101(a), the law remains that as between the lien of a mechanic or the furnisher of material and the lien of a prior mortgage, the lien of the former is superior only upon a separate building constructed on the land with the labor and material furnished, or to such an addition as is separable from the original building; as between a materialman and a prior mortgagor, “first-in-time, first in right” is the law in Arkansas unless the materialman can remove the improvements from the land. BB & B Constr. Co. v. FDIC, 316 Ark. 663, 875 S.W.2d 48 (1994).

Although a materialman's lien was considered to relate back to the date on which the particular material was furnished, a materials supplier that filed a materialman's lien on property after a bank had filed a foreclosure complaint and a lis pendens on the same property was subject to the lis pendens because the supplier did not obtain an interest in the property prior to the filing of the lis pendens. Nat'l Home Ctrs., Inc. v. Coleman, 373 Ark. 246, 283 S.W.3d 218 (2008).

Based on the Supreme Court of Arkansas's de novo interpretation of § 18-44-105 and this section, the circuit court properly granted summary judgment as a matter of law by finding that a mortgage lien had priority over the engineer's lien, which was filed almost two years later. Crafton, Tull, Sparks & Assocs. v. Ruskin Heights, LLC, 2015 Ark. 1, 453 S.W.3d 667 (2015).

Given a strict construction of this section, the Supreme Court of Arkansas concludes that any relate-back provisions do not apply to engineer's liens and that this section does not allow for an engineer's lien to relate back to the date of construction. Crafton, Tull, Sparks & Assocs. v. Ruskin Heights, LLC, 2015 Ark. 1, 453 S.W.3d 667 (2015).

Commencement of Improvement.

Where work was commenced by a plumbing contractor prior to the time other liens and mortgages attached to the property, his lien was entitled to priority regardless of how little he might have done before the other liens attached. Shaw v. Rackensack Apt. Corp., 174 Ark. 492, 295 S.W. 966 (1927).

The lien of a contractor whose only work on the premises prior to the recording of a construction mortgage consisted of inspecting and measuring the premises and driving a wooden peg to locate the center of the house had no priority over the mortgage. Mark's Sheet Metal, Inc. v. Republic Mtg. Co., 242 Ark. 475, 414 S.W.2d 106 (1967).

Preparatory work, such as grading, removal of debris, and demolition of existing structures, which is not visible notice that a building is about to be erected does not constitute commencement of work so as to give the lien for such work priority over a subsequently recorded construction mortgage. Clark v. GE Co., 243 Ark. 399, 420 S.W.2d 830 (1967).

The installment of a wall box containing electrical equipment on a pole located on unplanted and unimproved land did not constitute commencement of work so as to give priority to the materialman over a subsequently recorded mortgage. Jim Walter Homes, Inc. v. Bowling, 258 Ark. 28, 521 S.W.2d 828 (1975).

Labor and materials supplied by materialmen, preparatory work for the construction of a dwelling house, constituted commencement of improvements, hence affording the lien of the materialmen priority over a mortgage, filed subsequently to such work, securing a construction loan. Worthen Bank & Trust Co. v. Walker, 270 Ark. 868, 606 S.W.2d 382 (1980).

Trial court erred in finding that construction on a project did not commence until after the filing of the lender's mortgage by considering the parties' intent; under subdivision (a)(2) of this section, the trial court should have considered whether there was a visible manifestation of activity on the property that would show that construction had begun or would soon begin. May Constr. Co. v. Town Creek Constr. & Dev., LLC, 2011 Ark. 281, 383 S.W.3d 389 (2011).

Mortgages.

Materialman's lien was superior to mortgage executed after work began, though money had been advanced before. Cook v. Moore, 152 Ark. 590, 239 S.W. 750 (1922).

Furnishing portion of material before filing mortgage gives first lien. Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 258 S.W. 353 (1924).

Mortgage filed after work commences will be subordinate to any liens based on the commenced work. Dempsey v. Merchants Nat'l Bank, 292 Ark. 207, 729 S.W.2d 150 (1987).

Under subsection (b) of this section a materialmen's lien enjoys priority over a mortgage without regard to whether the improvements are removable. Simmons First Bank of Ark. v. Bob Callahan Servs., 340 Ark. 692, 13 S.W.3d 570 (2000).

Multiple Structures.

Liens of a materialman who furnished material for seven houses under a single contract and of laborers who performed labor on the houses separately were of equal dignity. Rust v. Kelley Bros. Lumber Co., 180 Ark. 517, 21 S.W.2d 973 (1929).

Payments to Other Lienholders.

One who has perfected his lien in the manner prescribed by statute cannot be defeated of his lien by any payments that may be made to other bona fide lien claimants. Long v. Charles T. Abeles & Co., 77 Ark. 156, 93 S.W. 67 (1905).

Mortgagee did not defeat the priority of liens of subsequent materialmen who furnished materials after the recording of the construction money mortgage by paying a materialman who furnished materials prior to the recording of the mortgage; liens of the subsequent materialmen related back to commencement of construction of the home and were on an equality with that of the first materialman. Planters Lumber Co. v. Jack Collier E. Co., 234 Ark. 1091, 356 S.W.2d 631 (1962).

Prior Mortgages.

In order to give a lien to a mechanic or a material furnisher superior to a prior mortgage, the improvement must be separate from the original improvement, or, if connected with the original improvement, it must be so connected as to be removable without injury to the original building. Imboden v. Citizens' Bank, 163 Ark. 615, 260 S.W. 734 (1924); Fine v. Dyke Bros., 175 Ark. 672, 300 S.W. 375 (1927); Morrilton Lumber Co. v. Groom, 176 Ark. 520, 3 S.W.2d 293 (1928).

—Construction Mortgages.

Where materialman sued to foreclose statutory lien on buildings erected by bankrupt contractor, fact that party who had financed contractor had taken prior construction money mortgage did not affect the lien since mortgage did not contain requisite language showing “purpose” for which money was loaned to contractor. Jack Collier E. Co. v. E.C. Barton & Co., 228 Ark. 300, 307 S.W.2d 863 (1957).

Where a materialman furnished materials for construction of home prior to the recording of the construction money mortgage, the mortgagee, by paying the materialman, did not defeat the priority of liens of subsequent materialmen who furnished materials after the recording of the mortgage, as their liens related back to commencement of construction of the home and were on an equality with that of the first materialman. Planters Lumber Co. v. Jack Collier E. Co., 234 Ark. 1091, 356 S.W.2d 631 (1962).

A construction mortgage had priority over a subsequent materialmen's lien as to proceeds of the mortgage advanced for labor and materials, but not as to money retained by the mortgagee for the purchase price of the ground nor as to money paid by the disbursing agent to the mortgagee for interest. Planters Lumber Co. v. Wilson Co., 241 Ark. 1005, 413 S.W.2d 55 (1967).

A construction mortgage had priority over the lien of a contractor whose only work on the premises prior to the recording of the mortgage consisted of inspecting and measuring the premises and driving a wooden peg to locate the center of the house. Mark's Sheet Metal, Inc. v. Republic Mtg. Co., 242 Ark. 475, 414 S.W.2d 106 (1967).

Construction mortgages held valid and to have preference over suppliers. National Lumber Co. v. Advance Dev. Corp., 293 Ark. 1, 732 S.W.2d 840 (1987).

— —Future Advances.

Where mortgagee under recorded mortgage was obligated to make future advances for construction of tourist cabin, its lien was superior to mechanic's lien of materialmen who furnished material used in construction of cabins. Ashdown Hdwe. Co. v. Hughes, 223 Ark. 541, 267 S.W.2d 294 (1954).

A mortgage that recited that the loan secured should be used to construct a dwelling house on the mortgaged premises and that the mortgage should cover and secure future advances was not a construction loan as to future advances since the mortgagee was not obligated to make future advances. Lyman Lamb Co. v. Union Bank, 237 Ark. 629, 374 S.W.2d 820 (1964).

The mortgagee of a mortgage securing future advances of funds “to be used solely for and in construction of a one family residence” was not entitled to priority over materialmen's liens as to funds used to satisfy a prior existing mortgage and to pay the balance due on the purchase price of the building site. House v. Scott, 244 Ark. 1075, 429 S.W.2d 108 (1968).

—Rebuilt Structures.

A materialman's lien cannot be acquired upon land, as distinguished from the building, for materials furnished in rebuilding a house thereon which was destroyed by fire as against mortgages filed prior to the furnishing of such material. Barton Lumber & Brick Co. v. Caraway, 178 Ark. 1034, 13 S.W.2d 586 (1929).

A materialman's lien on a house rebuilt after being destroyed by fire is superior to a prior mortgage covering both land and improvements, and it is immaterial that the insurance money covering the destroyed house was in part used to erect the new one. Barton Lumber & Brick Co. v. Caraway, 178 Ark. 1034, 13 S.W.2d 586 (1929).

—Unrecorded Mortgages.

An unrecorded mortgage, even though executed before work upon which mechanics' liens are based was done, will not take precedence over mechanics' liens perfected according to statute. O'Neill v. Lyric Amusement Co., 119 Ark. 454, 178 S.W. 406 (1915).

Even though materialman knew that mortgagee was furnishing money for construction, that knowledge would not make mortgage superior to lien of materialman where mortgage was not recorded. Jack Collier E. Co. v. E.C. Barton & Co., 228 Ark. 300, 307 S.W.2d 863 (1957).

Purchasers of Mortgage Notes.

An innocent purchaser of a note secured by a mortgage given to a contractor does not have lien prior to those of subcontractors, laborers, and materialmen who subsequently furnished labor and material in making the improvement. Home Oil Co. v. Helton, 179 Ark. 132, 14 S.W.2d 549 (1929).

Subsequent Purchasers.

Purchasers of an interest in real estate, after the accrual of a materialman's lien thereon and within the statutory period allowed to file a lien after the materials had been furnished, are not innocent purchasers of the property but take subject to the lien. Bell v. Koontz, 172 Ark. 870, 290 S.W. 597 (1927); Owen v. Continental Supply Co., 175 Ark. 741, 300 S.W. 398 (1927).

Use of Loan.

The test of priority is the purpose of the loan, and not the use actually made of it. Sebastian Bldg. & Loan Ass'n v. Minten, 181 Ark. 700, 27 S.W.2d 1011 (1930); Spickes Bros. Painting Contractors v. Worthen Bank & Trust Co., 299 Ark. 79, 771 S.W.2d 258 (1989).

Where portion of money loaned was used to pay off mortgage on premises and balance was for future advances for construction of tourist cabins on premises, the portion of money used to pay off prior mortgage was indirectly, if not directly, used to improve owner's property and was entitled to priority over subsequent mechanics' liens. Ashdown Hdwe. Co. v. Hughes, 223 Ark. 541, 267 S.W.2d 294 (1954).

When a construction lender has permitted or known that funds were not to be used for improvements, the lender cannot claim priority as to the amount not spent for improvements. Spickes Bros. Painting Contractors v. Worthen Bank & Trust Co., 299 Ark. 79, 771 S.W.2d 258 (1989).

Vendors' Liens.

Where one in possession of land under a contract of purchase contracts for improvements, the vendor's lien for the purchase price is, as to the land, superior to the lien for labor and material in making the improvements. Gunter v. Ludlam, 155 Ark. 201, 244 S.W. 348 (1922).

The lien for material for building a garage, furnished to a purchaser in possession prior to the vendor's exercise of his option to declare a contract rescinded for default, is superior to the vendor's lien with respect to the garage. Judd v. Rieff, 174 Ark. 362, 295 S.W. 370 (1927).

Where a contract for the sale of land stipulated that certain improvements should be made, a materialman's lien was superior to the vendor's lien for the purchase money. People's Bldg. & Loan Ass'n v. Leslie Lumber Co., 183 Ark. 800, 38 S.W.2d 759 (1931).

Cited: Leiper & Mills v. Minnig, 74 Ark. 510, 86 S.W. 407 (1905); Martin v. Blytheville Water Co., 115 Ark. 230, 170 S.W. 1019 (1914); Dermott State Bank v. Parker Lumber Co., 233 Ark. 138, 342 S.W.2d 676 (1961); Dempsey v. McGowan, 291 Ark. 147, 722 S.W.2d 848 (1987); In re McCord, 219 B.R. 251 (Bankr. E.D. Ark. 1998); Hall Contr. Corp. v. Entergy Servs., 309 F.3d 468 (8th Cir. 2002).