Idaho Code
Idaho Code § 45-108 (2026)
Lien for performance of future obligations — Validity — Priority.
✓ current as of May 2026
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Lien for performance of future obligations — Validity — Priority.
(1) A lien may be created by contract, to take immediate effect, as security for the performance of obligations not then in existence, which lien, if not invalid on other grounds, shall be valid as against all persons.
(2) The validity of such contracts and liens as security for any obligation is not affected as against any person by the fact that the contract does not specify, describe or limit the obligations to be secured as to purpose, nature, time, or amount of the obligations to be secured.
(3) All such liens, if otherwise valid, are valid against and prior and superior to all rights, liens and claims acquired by other persons in the property subject thereto after the contract creating such liens was made, except in cases where the person in whose favor the obligation secured by such lien was created had actual notice of the existence of such subsequent right, lien or claim at the time such obligation was created, and are prior and superior to such subsequent rights, liens or claims irrespective of such or any notice in the following cases:
(a) Where the person, in whose favor the obligation secured thereby was created, was legally bound to make the advance or give the consideration resulting in such obligation.
(b) Where the consideration for such obligation was necessarily and actually applied to the maintenance and/or preservation of the property subject to the lien.
(4) Making the advance or giving the consideration to result in an obligation not in existence at the time such a contract creating a lien to secure the same is made, is optional with the person making the advance or giving the consideration unless he is bound by an express contract to the contrary which shall not be implied from the fact that the contract to secure such obligation was made.
(5) Obligations otherwise within the limits and description of those specified in any contract creating a lien to secure the performance of obligations not then in existence, but created in favor of any person to whom the original party to be secured by the lien created by such contract has transferred such contract, and obligations secured by deeds of trust, shall also be secured thereby in like manner as similar obligations between the original parties thereto.
(6) Contracts of mortgage of real property and those secured by deeds of trust are subject to all the provisions of this section as amended.
Notes of Decisions
Cited in 3
cases, 1975–2016 · leading case: Liberty Bankers Life Ins. v. Witherspoon, Kelley, Davenport & Toole, P.S., 365 P.3d 1033 (Idaho 2016).
Liberty Bankers Life Ins. v. Witherspoon, Kelley, Davenport & Toole, P.S., 365 P.3d 1033 (Idaho 2016). “” I.C. § 45-108. The district court applied Idaho Code section 45-108, holding that the parties’ entry into the Eighth LMA in and of itself served to create Liberty’s New Deed of Trust and release Blocks A, D, and E from Liberty’s Original Deed of Trust.”
Idaho First Nat'l Bank v. Wells, 596 P.2d 429 (Idaho 1979). “The record in the instant case discloses that prior to making any future advances the bank had notice of the second mortgage on the property held by Hughes. Further, the language of the mortgage agreement and testimony at trial supports the conclusion that the bank’s obligation…”
State v. O'BRYAN, 531 P.2d 1193 (Idaho 1975). “” Idaho Code § 45-108 states that a lien may be created by contract to take immediate effect as security for performance of future obligations not then in existence.”
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