CHAPTER
7 LIENS
ARTICLE 6 MECHANICS’ AND MATERIALMEN’S LIENS
33-981 Lien for Labor; Professional Services or Materials
Used in Construction, Alteration or Repair of Structures;
Preliminary Twenty Day Notice; Exceptions
A.
Except as provided in sections 33-1002 and 33-1003, every
person who labors or furnishes professional services, materials,
machinery, fixtures or tools in the construction, alteration
or repair of any building, or other structure or improvement,
shall have a lien on such building, structure or improvement
for the work or labor done or professional services, materials,
machinery, fixtures or tools furnished, whether the work
was done or articles furnished at the instance of the owner
of the building, structure or improvement, or his agent.
B. Every contractor, subcontractor, architect, builder or
other person having charge or control of the construction,
alteration or repair, either wholly or in part, of any building,
structure or improvement is the agent of the owner for the
purposes of this article, and the owner shall be liable
for the reasonable value of labor or materials furnished
to his agent.
C. A person who is required to be licensed as a contractor
but who does not hold a valid license as such contractor
issued pursuant to title 32, chapter 10 shall not have the
lien rights provided for in this section.
D. A person required to give preliminary twenty day notice
pursuant to section 33-992.01 is entitled to enforce the
lien rights provided for in this section only if he has
given such notice and has made proof of service pursuant
to section 33-992.02.
E. A person who furnishes professional services but who
does not hold a valid certificate of registration issued
pursuant to title 32, chapter 1, shall not have the lien
rights provided for in this section.
F. A person who furnishes professional services is entitled
to enforce the lien rights provided for in this section
only if such person has a written agreement with the owner
of the property or with an architect, an engineer or a contractor
who has a written agreement with the owner of the property.
33-982 Claim of Lien by Assignee
of Contract or Account for Material Furnished or Labor Performed
An assignee of a contract or account for material furnished
or labor performed may verify, file, record and enforce
the contract as if he had been the original owner or holder
thereof.
33-983 Lien for Improvements to City
Lots or Other Land
A. A person who furnishes professional services or material
or labors upon a lot in an incorporated city or town, or
any parcel of land not exceeding one hundred sixty acres
in the aggregate, or fills in or otherwise improves the
lot or such parcel of land, or a street, alley or proposed
street or alley, within, in front of or adjoining the lot
or parcel of land at the instance of the owner of the lot
or parcel of land, shall have a lien on the lot or parcel
of contiguous land not exceeding one hundred sixty acres
in the aggregate, and the buildings, structures and improvements
on the lot for professional services or material furnished
and labor performed.
B. Every contractor, subcontractor, architect, builder,
subdivider or other person having charge or control of the
improvement or work on any such lot or parcel of land, either
wholly or in part, is the agent of the owner for the purposes
of this section, and the owner shall be liable for the reasonable
value of professional services, labor or material furnished
at the instance of such agent, upon a lot or parcel of land
as prescribed in this section, or any street, alley or proposed
street or alley, within, in front of or adjoining such lot
or parcel of land.
33-984
Lien for Labor or Materials Furnished Mill, Factory or Hoisting
Works
Foundrymen, boilermakers, and other persons who labor or
furnish materials for the construction, alteration, repair
or operation of a mill, factory or hoisting works at the
request of the owner shall have a lien thereon for the amount
due. If the hoist, factory or mill is located on property
not belonging to the owner of the hoist, factory or mill,
the purchaser at the sale on foreclosure of the lien may
remove them within sixty days after the sale, whether the
hoist, factory or mill is a fixture or not. If the hoist,
factory or mill is located on a mine, mining claim or mill
site which is the property of the owner, the lien shall
embrace the surface ground, not exceeding five acres, upon
which the hoist, factory or mill is located.
33-985
Lien for Labor or Materials Furnished Domestic Vessel
Persons who furnish supplies or material or do repairs or
perform labor for or on account of a domestic vessel owned
wholly or in part in this state, shall have a lien on the
vessel, her tackle, apparel, furniture and freight money
for the amount due.
33-986
Lien for Labor in Cutting Wood, Logs or Ties
Persons who cut or cord wood, cut, saw or skid logs, cut,
saw, hew or pile ties at the request of the owner thereof,
shall have a lien thereon for the amount due for the labor
performed.
33-987
Lien for Labor or Materials Furnished on Waterways, Highways,
Excavations or Land
A person who labors or furnishes labor or materials in the
construction, alteration or repair of any canal, water ditch,
flume, aqueduct or reservoir, bridge, fence, road, highway,
cellar, excavation or other structure or improvement, or
in the clearing, ditching, bordering or leveling of land,
and to whom wages or monies are due or owing therefore,
shall have a lien upon such property for all amounts due
and unpaid. Materials includes the use of mules, horses,
machinery or equipment used in or about such projects.
33-988 Lien for Labor or Materials
Furnished Railroad
A person who labors or furnishes labor, teams, materials,
machinery, fixtures or tools in the construction, repair
or operation of a railroad, locomotive, car or other equipment,
and to whom money or wages are due or owing therefore, and
any person who furnishes provisions or supplies of any kind
in the construction or repair of a railroad or to a contractor
or subcontractor engaged in such construction or repair,
for the housing, maintenance or subsistence of humans or
animals employed or used in such construction or repair,
and to whom any amount is due or owing therefore, shall
have a lien upon the railroad and its equipment for the
amounts unpaid.
33-989 Lien for Labor or Material
Furnished Mines and Mining Claims; Priority
A. A person who labors or furnishes materials or merchandise
of any kind, designed for or used in or upon a mine or mining
claim, and to whom any amount is due for labor, material
or merchandise, shall have a lien upon the mine or mining
claim for the unpaid amounts.
B. The lien provided for in subsection A shall attach when
the labor was performed or the material or merchandise furnished:
1. Under a contract between the person performing the labor
or furnishing the material or merchandise and the owner
of the mining claim, or his contractor.
2. Under a contract between the person performing the labor
or furnishing the material or merchandise and the lessee
of the mine or mining claim, or his contractor, where the
lease from the owner to the lessee permits the lessee to
develop or work the mine or mining claim.
3. Under a contract between persons performing the labor
or furnishing the material or merchandise, and any person
having an option to buy or contract to purchase the mine
or mining claim from the owner thereof, where the option
or contract permits the person to go upon the mine or mining
claim, and to work or develop it.
C. The lien shall attach to the mine or mining claim in
or on which the labor was performed or material or merchandise
furnished, in preference to any prior lien or encumbrance
or mortgage upon the mine or mining claim.
33-990 Posting of “No Lien”
Notice by Owner Not Operating Mine; Violation; Classification
A. The provisions of section 33-989 shall not apply and
the owner of a mine or mining claim shall not be responsible
for any debts when the mine or claim is worked under lease,
bond or option from the owner thereof, when the owner conspicuously
posts at the collar of all working shafts, tunnels and entrances
to the mine and boarding houses, on or before the day the
lessee or those working the claim under bond, lease or option
begin operations, and records in the office of the county
recorder of the county within which the mine or mining claim
is located within thirty days from the date of the lease,
bond or option, a notice that:
1. The mine or claim is not being operated by the owner.
2. The owner will not be liable for labor performed or materials
or merchandise furnished in the operation or development
of the mine or mining claim.
3. The mine or claim will not be subject to a lien therefore,
referring to the contract, and particularly describing the
mine or claim.
B. The lessee or person operating the mine shall keep the
notices posted, and upon failure to do so is guilty of a
class 2 misdemeanor.
33-991
Lands to Which Liens Extend; Rural Lands; City Lots; Subdivision
Lots; Mining Claims
A. If the land upon which an improvement is made and labor
or professional services have been performed lies outside
of the limits of the recorded map or plat of a townsite,
an incorporated city or town, or a subdivision, the lien
shall extend to and include not to exceed ten acres of the
land upon which the improvement is made and the labor has
been performed.
B. If the land on which an improvement is made or labor
or professional services have been performed lies within
the limits of a recorded map or plat of a townsite, an incorporated
city or town, or a subdivision, the lien shall extend to
and include only the particular lot or lots upon which the
improvement is made and the labor has been performed.
C. If the labor is performed or the improvements made upon
a mining claim, the lien shall extend to the whole thereof
and to the group of which the claim upon which the work
was done is a part if the group is operated as one property.
33-992 Preference of Liens Over Subsequent
Encumbrances; Professional Services Liens
A. The liens provided for in this article, except as provided
in subsection B or unless otherwise specifically provided,
are preferred to all liens, mortgages or other encumbrances
upon the property attaching subsequent to the time the labor
was commenced or the materials commenced to be furnished.
The liens provided for in this article except as provided
in subsection B are also preferred to all liens, mortgages
and other encumbrances of which the lienholder had no actual
or constructive notice at the time he commenced labor or
commenced to furnish materials.
B. A notice and claim of lien for professional services
shall not be recorded nor shall a lien for professional
services attach to the property until labor has commenced
on the property or until materials have commenced to be
furnished to the property so that it is apparent to any
person inspecting the property that construction, alteration
or repair of any building or other structure or improvement
has commenced.
C. Liens for professional services shall attach, not before
but at the same time, and shall have the same priority as
other liens provided for in this article.
33-992.01 Preliminary Twenty Day
Notice; Definitions; Content; Election; Waiver; Service;
Single Service; Contract
A. For the purposes of this section:
1. “Construction lender” means any mortgagee
or beneficiary under a deed of trust lending funds with
which the cost of the construction, alteration, repair or
improvement is, wholly or in part, to be defrayed, or any
assignee or successor in interest of either.
2. “Original contractor” means any contractor
who has a direct contractual relationship with the owner.
3. “Owner” means the person, or his successor
in interest, who causes a building, structure or improvement
to be constructed, altered or repaired, whether the interest
or estate of the person is in fee, as vendee under a contract
to purchase, as lessee, or other interest or estate less
than fee. Where such interest or estate is held by two or
more persons as community property, joint tenants or tenants
in common, any one or more of the persons may be deemed
the owner.
4. “Preliminary twenty day notice” means one
or more written notices from a claimant that are given prior
to the recording of a mechanic’s lien and which are
required to be given pursuant to this section.
B. Except for a person performing actual labor for wages,
every person who furnishes labor, professional services,
materials, machinery, fixtures or tools for which a lien
otherwise may be claimed under this article shall, as a
necessary prerequisite to the validity of any claim of lien,
serve the owner or reputed owner, the original contractor
or reputed contractor, the construction lender, if any,
or reputed construction lender, if any, and the person with
whom the claimant has contracted for the purchase of those
items with a written preliminary twenty day notice as prescribed
by this section.
C. The preliminary twenty day notice referred to in subsection
B shall be given not later than twenty days after the claimant
has first furnished labor, professional services, materials,
machinery, fixtures or tools to the jobsite and shall contain
the following information:
1. A general description of the labor, professional services,
materials, machinery, fixtures or tools furnished or to
be furnished and an estimate of the total price thereof.
2. The name and address of the person furnishing such labor,
professional services, materials, machinery, fixtures or
tools.
3. The name of the person who contracted for the purchase
of such labor, professional services, materials, machinery,
fixtures or tools.
4. A legal description, subdivision plat, street address,
location with respect to commonly known roads or other landmarks
in the area or any other description of the jobsite sufficient
for identification.
5. The following statement in bold-faced type:
In accordance with Arizona Revised Statutes section 33-992.01,
this is not a lien and this is not a reflection on the integrity
of any contractor or subcontractor.
Notice to Property Owner
If bills are not paid in full for the labor, professional
services, materials, machinery, fixtures or tools furnished
or to be furnished, a mechanic’s lien leading to the
loss, through court foreclosure proceedings, of all or part
of your property being improved may be placed against the
property. You may wish to protect yourself against this
consequence by either:
1. Requiring your contractor to furnish a conditional waiver
and release pursuant to Arizona Revised Statutes section
33-1008, subsection D, paragraphs 1 and 3 signed by the
person or firm giving you this notice before you make payment
to your contractor.
2. Requiring your contractor to furnish an unconditional
waiver and release pursuant to Arizona Revised Statutes
section 33-1008, subsection D, paragraphs 2 and 4 signed
by the person or firm giving you this notice after you make
payment to your contractor.
3. Using any other method or device which is appropriate
under the circumstances.
D. The preliminary notice given by any claimant shall follow
substantially the following form:
Arizona preliminary twenty day lien notice
In accordance with Arizona Revised Statutes section 33-992.01,
this is not a lien. This is not a reflection on the integrity
of any contractor or subcontractor.
This preliminary lien notice has The name and address been
completed by (name and address of the owner or reputed of
claimant): owner is:
Date: _________________________ By: ___________________________
Address: ______________________
The name and address You are hereby notified that the of
the original claimant has furnished or will contractor is:
furnish labor, professional services, materials, machinery,
fixtures or tools of the following general description:
The name and address of any lender or reputed lender and/or
assigns is: In the construction, alteration or repair of
the building, structure or improvement located at:
The name and address of the person with whom the claimant
has contracted is: And situated upon that certain lot(s)
or parcel(s) of land in ______________ County, Arizona,
described as follows: An estimate of the total price of
the labor, professional services, materials, machinery,
fixtures or tools furnished or to be furnished is: $______________
(The following statement shall be in bold-faced type.)
Notice to Property Owner
If bills are not paid in full for the labor, professional
services, materials, machinery, fixtures or tools furnished,
or to be furnished, a mechanic’s lien leading to the
loss, through court foreclosure proceedings, of all or part
of your property being improved may be placed against the
property. You may wish to protect yourself against this
consequence by either:
1. Requiring your contractor to furnish a conditional waiver
and release pursuant to Arizona Revised Statutes section
33-1008, subsection D, paragraphs 1 and 3 signed by the
person or firm giving you this notice before you make payment
to your contractor.
2. Requiring your contractor to furnish an unconditional
waiver and release pursuant to Arizona Revised Statutes
section 33-1008, subsection D, paragraphs 2 and 4 signed
by the person or firm giving you this notice after you make
payment to your contractor.
3. Using any other method or device that is appropriate
under the circumstances.
(The following language shall be in type at least as large
as the largest type otherwise on the document.)
Within ten days of the receipt of this preliminary twenty
day notice the owner or other interested party is required
to furnish all information necessary to correct any inaccuracies
in the notice pursuant to Arizona Revised Statutes section
33-992.01, subsection I or lose as a defense any inaccuracy
of that information. Within ten days of the receipt of this
preliminary twenty day notice if any payment bond has been
recorded in compliance with Arizona Revised Statutes section
33-1003, the owner must provide a copy of the payment bond
including the name and address of the surety company and
bonding agent providing the payment bond to the person who
has given the preliminary twenty day notice. In the event
that the owner or other interested party fails to provide
the bond information within that ten day period, the claimant
shall retain lien rights to the extent precluded or prejudiced
from asserting a claim against the bond as a result of not
timely receiving the bond information.
Dated: ___________________ ___________________________ (Company
name) By: ______________________ (Signature) ___________________________
(Title)
(Acknowledgement of receipt language from Arizona Revised
Statutes section 33-992.02 shall be inserted here.)
E. If labor, professional services, materials, machinery,
fixtures or tools are furnished to a jobsite by a person
who elects not to give a preliminary twenty day notice as
provided in subsection B, such person is not precluded from
giving a preliminary twenty day notice not later than twenty
days after furnishing other labor, professional services,
materials, machinery, fixtures or tools to the same jobsite.
Such person, however, is entitled to claim a lien only for
such labor, professional services, materials, machinery,
fixtures or tools furnished within twenty days prior to
the service of such notice and at any time thereafter.
F. The notice or notices required by this section may be
given by mailing the notice by first class mail sent with
a certificate of mailing, registered or certified mail,
postage prepaid in all cases, addressed to the person to
whom notice is to be given at his residence or business
address. Service is complete at the time of the deposit
of such mail.
G. A person required by this section to give notice to the
owner, to an original contractor, to the construction lender,
if any, and to the person with whom the claimant has contracted
need give only one such notice to the owner, to the original
contractor, to the construction lender, if any, and to the
person with whom the claimant has contracted with respect
to all labor, professional services, materials, machinery,
fixtures or tools he furnishes for the building, structure
or improvement, unless the actual estimated total price
for the labor, professional services, materials, machinery,
fixtures or tools furnished or to be furnished exceeds by
twenty per cent or more the total price in any prior original
or subsequent preliminary notice or unless the labor, professional
services, materials, machinery, fixtures or tools are furnished
under contracts with more than one subcontractor, in which
case notice requirements shall be met for all such additional
labor, professional services, materials, machinery, fixtures
or tools.
H. If a notice contains a general description required by
subsection C of this section of the labor, professional
services, materials, machinery, fixtures or tools furnished
up to the date of notice, it is not defective because after
such date the person giving notice furnishes labor, professional
services, materials, machinery, fixtures or tools that are
not within the scope of such general description, or exceed
by less than twenty per cent the estimated total price thereof.
I. Within ten days after receipt of a written request from
any person or his agent intending to file a preliminary
twenty day notice, which request shall identify the person,
his address, the job site and the general nature of the
person’s labor, professional services, materials,
machinery or tools to which the preliminary twenty day notice
shall apply, or within ten days of the receipt of a preliminary
twenty day notice, the owner or other interested party shall
furnish such person a written statement containing the following
information:
1. The legal description, subdivision plat, street address,
location with respect to commonly known roads or other landmarks
in the area, or any other description of the job site sufficient
for identification.
2. The name and address of the owner or reputed owner.
3. The name and address of the original contractor or reputed
contractor.
4. The name and address of the construction lender, if any,
or reputed construction lender.
5. If any payment bond has been recorded pursuant to section
33-1003, a copy of the bond and the name and address of
the surety company and bonding agent, if any, providing
the payment bond.
J.
Failure of the owner or other interested party to furnish
the information required by this section does not excuse
any claimant from timely giving a preliminary twenty day
notice, but it does stop the owner from raising as a defense
any inaccuracy of such information in a preliminary twenty
day notice, provided the claimant’s preliminary twenty
day notice of lien otherwise complies with the provisions
of this chapter. If the information is received by the claimant
after the claimant has given a preliminary twenty-day notice
and the information contained in the preliminary twenty-day
notice is inaccurate, the claimant shall, within thirty
days of the receipt of this information, give an amended
preliminary twenty day notice in the manner provided in
this section. Such amended preliminary twenty day notice
shall be considered as having been given at the same time
as the original preliminary twenty day notice, except that
the amended preliminary twenty day notice shall be effective
only as to work performed, materials supplied or professional
services rendered twenty days prior to the date of the amended
preliminary twenty day notice or the date the original preliminary
twenty day notice was given to the owner, whichever occurs
first. If a payment bond has been recorded in compliance
with section 33-1003 and the owner or other interested party
fails to furnish a copy of the bond and the other information
as required by this section, the claimant shall retain lien
rights to the extent precluded or prejudiced from asserting
a claim against the bond as a direct result of not timely
receiving a copy of the bond and the other information from
the owner or other interested party.
33-992.02.
Proof of mailing of preliminary twenty day notice; receipt;
affidavit
Proof
that the preliminary twenty day notice required by section
33-992.01 was given in accordance with section 33-992.01,
subsection F shall be made as follows:
1.
If given by mail, by an acknowledgment of receipt of the
notice in a form substantially as follows:
“___________________________________Signature
of sender
Acknowledgment
of receipt of preliminary twenty day notice
This acknowledges receipt on (insert date) of a copy of
the preliminary twenty day notice at (insert address).
Date: _____________________________________________________
(Date this acknowledgment is executed)
_____________________________________
Signature of person acknowledging receipt, with title if
acknowledgment is made on behalf of another person”
2. If a person to whom the notice is served pursuant to
section 33-992.01, subsection F fails to complete the acknowledgment
or fails to complete and return the acknowledgment within
thirty days from the date of mailing, proof of mailing may
be made by affidavit of the person making the mailing, showing
the time, place and manner of mailing and facts showing
that such service was made in accordance with section 33-992.01.
The affidavit shall show the name and address of the person
to whom a copy of the preliminary twenty day notice was
mailed, and, if appropriate, the title or capacity in which
he was given the notice. If mailing was made by first class
mail sent with a certificate of mailing, the certificate
of mailing shall be attached to the affidavit. If the mailing
was by certified or registered mail, the receipt of certification
or registration shall be attached to the affidavit.
33-993
Procedure to Perfect Lien; Notice and Claim of Lien; Service;
Recording; Definitions
A. In order to impress and secure the lien provided for
in this article, every person claiming the benefits of this
article, within one hundred twenty days after completion
of a building, structure or improvement, or any alteration
or repair of such building, structure or improvement, or
if a notice of completion has been recorded, within sixty
days after recordation of such notice, shall make duplicate
copies of a notice and claim of lien and record one copy
with the county recorder of the county in which the property
or some part of the property is located, and within a reasonable
time thereafter serve the remaining copy upon the owner
of the building, structure or improvement, if he can be
found within the county. The notice and claim of lien shall
be made under oath by the claimant or someone with knowledge
of the facts and shall contain:
1. The legal description of the lands and improvements to
be charged with a lien.
2. The name of the owner or reputed owner of the property
concerned, if known, and the name of the person by whom
the lienor was employed or to whom he furnished materials.
3. A statement of the terms, time given and conditions of
the contract, if it is oral, or a copy of the contract,
if it is written.
4. A statement of the lienor's demand, after deducting just
credits and offsets.
5. A statement of the date of completion of the building,
structure or improvement, or any alteration or repair of
such building, structure or improvement.
6. A statement of the date the preliminary twenty day notice
required by section 33-992.01 was given. A copy of such
preliminary twenty day notice and the proof of mailing required
by section 33-992.02 shall be attached.
B. For purposes of this section, if a work of improvement
consists of the construction for residential occupancy of
more than one separate building without regard to whether
the buildings are constructed pursuant to separate contracts
or a single contract, each building is a separate work and
the time within which to perfect a lien by recording the
notice of lien pursuant to subsection A of this section
commences to run on the completion of each separate building.
For purposes of this subsection, "separate building"
means one structure of a work of improvement and any garages
or other appurtenant buildings in a multibuilding residential
project or residential subdivision.
C. For the purposes of subsection A of this section, "completion"
means the earliest of the following events:
1. Thirty days after final inspection and written final
acceptance by the governmental body which issued the building
permit for the building, structure or improvement.
2. Cessation of labor for a period of sixty consecutive
days, except when such cessation of labor is due to a strike,
shortage of materials or act of God.
D. If no building permit is issued or if the governmental
body that issued the building permit for the building, structure
or improvement does not issue final inspections and written
final acceptances, then "completion" for the purposes
of subsection A of this section means the last date on which
any labor, materials, fixtures or tools were furnished to
the property.
E. For the purposes of this section, "notice of completion"
means a written notice which the owner or its agent may
elect to record at any time after completion of construction
as defined in subsection C of this section for the purpose
of shortening the lien period, as provided in subsection
A of this section. A notice of completion shall be signed
and verified by the owner or its agent and shall contain
the following information:
1. The name and address of the owner.
2. The nature of the interest or estate of the owner.
3. The legal description of the jobsite and the street address.
The validity of the notice is not affected by the fact that
the street address recited is erroneous or that such strerest
or estate stated below in the property hereinafter described,
or the undersigned is the owner's agent.
2. The full name of the undersigned is _______________.
3. The full address of the undersigned is _______________
______________________________________________________.
4. The nature of the interest or estate of the owner is:
in fee. _________________________________(If other than
fee, strike "In Fee" and insert, for example,
"Purchaser Under Contract of Purchase" or "Lessee".)
5. The full names and full addresses of all persons, if
any, who hold interest or estate with the undersigned such
as joint tenants or tenants in common are:
Name Address
______________________________________________________________
______________________________________________________________
______________________________________________________________
6. The full names and full addresses of the predecessors
in interest of the undersigned, if the property was transferred
after the beginning of the work or improvement:
Name Address
______________________________________________________________
______________________________________________________________
______________________________________________________________
7. The nature of the improvements to the real property ______________________________________________________.
8. The work of improvement on the property hereinafter described
was completed in accordance with the definition of completion
in Arizona Revised Statutes section 33-993, subsection C.
(Fill in the appropriate completion date as defined in Arizona
Revised Statutes section 33-993, subsection C.)
(a) - Date __________________________________________ (thirty
days after written final acceptance by governmental body)
(b) - Date _________________________________________(sixty
days after cessation of labor)
9. The name of the original contractor, if any, for such
work or improvement is _______________________________________.
(if no contractor, insert "none")
10. The street address of the property is ____________ _______________________________________________________________
(include both address and city with zip code)
11. The legal description of property described above _______________________________________________________________
(attach exhibit if necessary)
Verification
I, the undersigned, certify that I am the owner, the owner's
agent for the property or another interested party in the
property, described in the above notice, or I certify that
I am the original contractor of the improvements to the
real property described in the above notice. I have read
the foregoing notice and know and understand the contents
thereof, and the facts stated therein are true and correct.
I declare under penalty of perjury that the foregoing is
true and correct.
Executed on __________ at ___________________, Arizona.
(date) (place where signed)____________________________
(print name)____________________________
(personal signature)____________________________(title)
(Acknowledgement)
Each notice of completion shall contain the following language
in type at least as large as the largest type that otherwise
appears on the document:
In order to shorten the lien period pursuant to Arizona
Revised Statutes section 33-993, subsection A, a copy of
the notice of completion and a written statement of the
date of recording and the county recorder's record location
information shall be served by certified or registered mail,
postage prepaid, to the owner, the original contractor and
all persons from whom the person recording this notice has
previously received a preliminary twenty day notice as prescribed
by Arizona Revised Statutes section 33-993, subsection I.
Notice: Receipt of a notice of completion may alter the
time you have to impress and secure a lien in accordance
with Arizona Revised Statutes section 33-993, subsection
A.
G. If there is more than one owner, any notice of completion
signed by less than all such owners shall recite the name
and address of all such owners. If the notice of completion
is signed by a successor in interest, it shall recite the
names and addresses of his transferor or transferors.
H. A notice of completion shall be recorded in the office
of the county recorder of the county in which the property
or some part of the property is located. The county recorder
of the county in which the notice of completion is recorded
shall index the notice of completion under the index classification
in which mechanics' and materialmen's liens are recorded.
I. If a notice of completion has been recorded, the person
recording the notice, within fifteen days of recording,
shall mail by certified or registered mail postage prepaid
a copy of the notice of completion and a written statement
of the date of recording and the county recorder's record
location information to the original contractor and all
persons from whom the owner has previously received a preliminary
twenty day notice. In the event the owner or its agent fails
to mail a copy of the notice of completion and a written
statement of the date of recording and the county recorder's
record location information within fifteen days of recording
to any person from whom the owner has received a preliminary
twenty day notice, such person shall have one hundred twenty
days from completion as defined in section 33-993 to impress
and secure the lien provided for in this article.
33-994 Right of Owner of Property
Against Which Lien is Claimed to Withhold Payment to Original
Contractor; Procedure
Upon service of the notice and claim of lien, the owner
may retain, out of the amount due or to become due the original
contractor, the value of the labor or material furnished
as shown by the notice and claim of lien. The owner shall
furnish the original contractor with a true copy of the
notice and claim of lien and if the contractor does not,
within ten days after receipt of the copy, give the owner
written notice that he intends to dispute the claim, he
shall be considered as assenting to the demand, which shall
be paid by the owner when it becomes due.
33-995
Duty of Contractor to Defend Action on Claim of Lien by
Person Other Than a Contractor; Rights of Owner Against
Contractor; Other Rights
A. When a lien is recorded or notice given by any person
other than a contractor, the contractor shall defend any
action brought thereon.
B. During pendency of such action the owner may withhold
the amount sued for, and if judgment is given upon the lien,
he may deduct from any amount due or to become due from
him to the contractor the amount of the judgment and costs.
C. If the owner has settled with the contractor in full,
or if such an amount is not owing to the contractor, the
owner may recover back from the contractor the amount so
paid by him, and for which the contractor was the party
originally liable.
D. Any contractor, subcontractor or other person who is
obligated by statute, contract or agreement to defend, remove,
compromise or pay any claim of lien or action and who undertakes
such activity has the rights of the owner and beneficial
title holder against all persons concerning such activity,
as specified in sections 33-420 and 33-994.
E. If any contractor or other person institutes an action
to foreclose a lien pursuant to this article, the court
may, at its discretion, award the prevailing party on the
lien claim all reasonable expenses incurred in the action
including attorney fees, other professional services and
bond premiums under section 33-1004.
33-996
Joinder of Persons Claiming Liens; Claimant as Party Defendant;
Intervention
Lienors not contesting the claims of each other may join
as plaintiffs, and when separate actions are commenced the
court may consolidate them, and make all persons having
claims filed parties to the action. Persons claiming liens
who fail or refuse to become parties plaintiff shall be
made parties defendant, and those not made a party, may,
at any time before final hearing, intervene.
33-997
Sale of Property to Satisfy Lien
No sale of property to satisfy a lien granted under the
provisions of this article shall be made except upon judgment
of foreclosure and order of sale.
33-998
Limitation of Action to Foreclose Lien; Attorney Fees
A. A lien granted under the provisions of this article shall
not continue for a longer period than six months after it
is recorded, unless action is brought within that period
to enforce the lien and a notice of pendency of action is
recorded pursuant to section 12-1191 in the office of the
county recorder in the county where the property is located.
If a lien claimant is made a party defendant to an action
brought by another lien claimant, the filing within such
period of six months of an answer or cross-claim asserting
the lien shall be deemed the commencement of an action within
the meaning of this section.
B. In any action to enforce a lien granted under this article,
the court may award the successful party reasonable attorney
fees.
33-999 Right of Lienholder to Have
Land and Improvements Sold Together or Separately; Right
of Purchaser to Possession
A. The person enforcing a lien granted under the provisions
of this article may have the lot or land and improvements
sold together, or he may have the improvements alone sold
when it can be done without material injury to the property
beyond the value of the improvements.
B. When the improvements are sold separately, the purchaser
shall be placed in possession by the officer conducting
the sale and the purchaser shall have the right to remove
the improvements within a reasonable time from the date
of purchase.
33-1000
Priority Among Mechanic’s and Materialman’s
Liens; Prorating Proceeds of Foreclosure Sale
A. The liens for work and labor done or professional services
or material furnished, as provided for in this article,
are on an equal footing without reference to the date of
recording the notice and claim of lien, and without reference
to the time of performing the work and labor or furnishing
the professional services or material.
B. When a sale is ordered and the property sold, the proceeds
of the sale, if not sufficient to discharge all liens against
the property without reference to the date of recording
the notice and claim of lien, shall be prorated over the
respective liens.
33-1001
Priority of Claims for Current Wages Owed by Owner of Property
Under Levy
A. When a levy is made under execution, attachment or other
similar writ, except when the writ is issued in an action
under this article, a miner, mechanic, salesman, servant
or laborer who has a claim against the defendant for labor
performed may give notice of his claim, sworn to and stating
the amount thereof, to the creditor, defendant debtor and
the officer executing the writ, at any time within three
days before sale of the property levied upon. The officer
shall file the claim with the clerk of the court issuing
the writ, and unless the claim is disputed by the debtor
or creditor before sale, the officer shall pay the claimant
from the proceeds of the sale the amount claimant is entitled
to receive for such services rendered within sixty days
next preceding the levy of the writ, not exceeding two hundred
dollars to each claimant. Upon failure of the officer to
do so, he shall be liable to the claimant therefore.
B. The claim may be disputed by the debtor or creditor,
or any lienholder, in writing, specifying the reasons for
disputing it, verified and delivered to the officer before
the sale, and shall be filed in the court issuing the writ.
The officer shall pay all claims not disputed from the first
money received. If the total amount of all claims presented
exceeds the amount derived from the sale, the officer shall
pay to the holders of the undisputed claims their pro rata
share of the money and shall pay the pro rata amount of
the disputed claims, together with an amount for costs as
the court orders, into court. The court shall cite all parties
interested to appear, and in a summary manner determine
the validity of the disputed claims and direct the manner
in which the officer shall distribute the proceeds of the
sale.
33-1002 Definitions; Inapplicability
of Certain Liens to Owner-occupied Dwelling; Waiver Void
A. In this section:
1. “Dwelling” means real property upon which
there has been constructed or is to be constructed any building,
structure or improvement which is designed for either single
one-family or single two-family residential purposes or
activities related thereto, including an apartment in a
horizontal property regime or other condominium.
2. “Owner-occupant” means a natural person who:
(a) Prior to commencement of the construction, alteration,
repair or improvement holds legal or equitable title to
the dwelling by a deed or contract for the conveyance of
real property recorded with the county recorder of the county
in which the dwelling is located, and
(b) Resides or intends to reside in the dwelling at least
thirty days during the twelve-month period immediately following
completion of the construction, alteration, repair or improvement
and does not intend to sell or lease the dwelling to others.
Residence in the dwelling or intent to reside in the dwelling
may be evidenced by the following or other physical acts:
(i) The placing of his or her personal belongings and furniture
in the dwelling, and
(ii) Occupancy either by the person or members of his or
her family. A single act shall not establish a person as
an owner-occupant if such person permits exclusive occupancy
by other than members of his or her family for other than
temporary purposes thereby negating his or her intent to
reside in the dwelling primarily for use as his or her home.
B. No lien provided for in this article shall be allowed
or recorded by the person claiming a lien against the dwelling
of a person who became an owner-occupant prior to the construction,
alteration, repair or improvement, except by a person having
executed in writing a contract directly with the owner-occupant.
C. Any provision of an agreement made or entered into by
an owner-occupant which waives the provisions of this section
is void.
33-1003 Payment Bond in Lieu of Lien
Right; Bond Purposes and Conditions; Recording
A. Every owner of land, including any person who has a legal
or equitable interest therein, who enters a contract requiring
any person to perform labor or professional services or
to furnish materials, machinery, fixtures or tools in the
construction, alteration or repair of any building, or other
structure or improvement on such land, may avoid the lien
provisions of section 33-981 pertaining to agents by requiring
the person with whom he contracts to furnish a payment bond
prior to or at the time of execution of such contract. Upon
recordation of the payment bond together with a copy of
such contract in the office of the county recorder, in the
county in which the land is located, no lien shall thereafter
be allowed or recorded by the person claiming a lien against
the land on which the labor or professional services are
performed or the materials, machinery, fixtures or tools
furnished, as provided in this article, except by the person
who contracts, in writing, directly with the owner.
B. A payment bond furnished pursuant to subsection A of
this section shall be in a sum equal to the full amount
of the contract between the owner and the person with whom
the owner contracts, and shall be solely for the protection
of claimants performing labor or professional services or
furnishing materials, machinery, fixtures or tools to such
person or his subcontractor in the prosecution of the work
provided for in such contract. The bond shall be conditioned
in accordance with the provisions of section 34-223, subsections
A and B. The contract recorded with the bond shall contain
a legal description of the land on which the work is being
or is to be performed.
C. The bond provided for in this section shall be executed
solely by one or more surety companies holding a certificate
of authority to transact surety business in this state issued
by the director of the department of insurance pursuant
to title 20, chapter 2, article 1 and shall be accompanied
by a power of attorney disclosing the authority of the person
executing the same on behalf of the surety. Notwithstanding
any other statute, the bond shall not be executed by an
individual surety or sureties, even if the requirements
of section 7-101 are satisfied.
D. The county recorder of the county in which the bond and
contract are recorded shall index the bond and contract
under the index classification in which mechanics’
and materialmen’s liens are recorded.
33-1004 Discharge of Mechanic’s
Liens; Bond; Limitations of Actions; Discharge of Surety;
Judgment
A. After perfection of a lien pursuant to this article,
an owner, including any person who has a legal or equitable
interest in the land which is subject to the lien, a contractor,
subcontractor, mortgagee or other lien creditor, may, either
before or after the commencement of an action to foreclose
such lien, cause to be recorded in the office of the county
recorder, in the county in which the land is located, a
surety bond in the form described in subsection B of this
section, together with a power of attorney disclosing the
authority of the person executing the same on behalf of
the surety. Upon the recordation of such bond, the property
shall be discharged of such lien whether or not a copy of
the bond is served upon the claimant or he perfects his
rights against the bond.
B. A surety bond to discharge a lien perfected under the
provisions of this section shall be executed by the person
seeking to discharge such lien, as principal, and by a surety
company or companies holding a certificate of authority
to transact surety business in this state, issued by the
director of the department of insurance pursuant to title
20, chapter 2, article 1. The bond shall be for the sole
protection of the claimant who perfected such lien. Notwithstanding
any other statute, the surety bond shall not be executed
by individual surety or sureties, even if the requirements
of section 7-101 are satisfied. The bond shall be in an
amount equal to one and one-half times the claim secured
by the lien and shall be conditioned for the payment of
the judgment which would have been rendered against the
property for the enforcement of the lien. The legal description
of the property and the docket and page of the lien sought
to be discharged shall be set forth in the bond.
C. The principal on such bond shall, upon recordation thereof
with the county recorder, cause a copy of the bond to be
served within a reasonable time upon the lien claimant,
and if a suit be then pending to foreclose the lien, claimant
shall within ninety days after receipt thereof, cause proceedings
to be instituted to add the surety and the principal as
parties to the lien foreclosure suit.
D. The bond shall be discharged and the principal and sureties
released upon any of the following:
1. The failure of the lien claimant to commence a suit within
the time allowed pursuant to section 33-998.
2. Failure of the lien claimant to name the principal and
sureties as parties to the action seeking foreclosure of
the lien if a copy of the bond has been served upon claimant.
If the bond is served upon the claimant within less than
ninety days from the date claimant would be required to
commence his action pursuant to section 33-998, then the
claimant shall have ninety days from the date he receives
a copy of such bond to add the principal and the sureties
as parties to the lien foreclosure suit.
3. The dismissal of the foreclosure suit with prejudice
as to the claimant or the entry of judgment in such suit
against claimant.
E. In an action to foreclose a lien under this article,
where a bond has been filed and served as provided herein,
a judgment for the claimant on the bond shall be against
the principal and his sureties for the reasonable value
of the labor and material furnished and shall not be against
the property.
F. In the event a copy of the bond is not served upon the
claimant as provided in subsection C of this section, the
claimant shall have six months after the discovery of such
bond to commence an action thereon, except that no action
may be commenced on such bond after two years from the date
it was recorded as provided in this section.
G. The county recorder of the county in which the bond and
contract are recorded shall index the bond and contract
under the index classification in which mechanics’
and materialmen’s liens are recorded.
33-1005 Payments Made in Trust
Monies paid by or for an owner-occupant as defined in section
33-1002 to a contractor, as defined in section 32-1101,
as payment for labor, professional services, materials,
machinery, fixtures or tools for which a lien is not provided
in this article shall be deemed for all purposes to be paid
in trust and shall be held by the contractor for the benefit
of the person or persons furnishing such labor, professional
services, materials, machinery, fixtures or tools. Such
monies shall neither be diverted nor used for any purpose
other than to satisfy the claims of those for whom the trust
is created and shall be paid when due to the person or persons
entitled thereto. The provisions of this section shall not
affect other remedies available at law or in equity.
33-1006 Release of Mechanic’s
and Materialman’s Liens; Liability
A. When any lien established by the provisions of this article
has been satisfied, the lienholder shall, within twenty
days after satisfaction, issue a release of the lien.
B. When any lien prohibited to be filed against the dwelling
of an owner-occupant as defined in section 33-1002 has been
recorded, the person claiming the lien shall, within twenty
days of the written request of the owner-occupant, issue
a release of the lien.
C. The release issued pursuant to this section shall be
in document form as specified in section 11-480. Failure
to grant such a release shall subject the lienholder or
person to liability in the amount of one thousand dollars
and also to liability for actual damages.
33-1007 Definition of Professional
Services
In this article, unless the context otherwise requires,
“professional services” means architectural
practice, engineering practice or land surveying practice
as defined in section 32-101.
33-1008 Waiver of Lien
A. An owner or contractor by any term of their contract,
or otherwise, may not waive or impair the claims or liens
of other persons whether with or without notice except by
their written consent or as prescribed by section 33-1003.
Any term of the contract to that effect shall be void. Any
written consent given by any claimant pursuant to this section
is unenforceable unless the claimant executes and delivers
a waiver and release. This waiver and release is effective
to release the property for the benefit of the owner, the
construction lender, the contractor and the surety on a
payment bond from claims and liens only if the waiver and
release follows substantially one of the forms set forth
in this section and is signed by the claimant or his authorized
agent, and, in the case of a conditional release, if there
is evidence of payment to the claimant. Evidence of payment
may be by the claimant’s endorsement on a single or
joint payee check that has been paid by the bank on which
it was drawn or by written acknowledgment of payment given
by the claimant.
B. No oral or written statement purporting to waive, release
or otherwise adversely affect a claim is enforceable or
creates any estoppel or impairment of a claim unless it
is pursuant to a waiver and release prescribed by this section
or the claimant had actually received payment in full for
the claim.
C. This section does not affect the enforceability of either
an accord and satisfaction regarding a bona fide dispute
or any agreement made in settlement of an action pending
in any court provided the accord and satisfaction or agreement
and settlement make specific reference to the mechanic’s
lien or bond claims.
D. The waiver and release given by any claimant is unenforceable
unless it follows substantially the following forms in the
following circumstances:
1. Where the claimant is required to execute a waiver and
release in exchange for or in order to induce the payment
of a progress payment and the claimant is not in fact paid
in exchange for the waiver and release or a single payee
check or joint payee check is given in exchange for the
waiver and release, the waiver and release shall follow
substantially the following form:
Conditional waiver and release on progress payment
Project: ______________________
Job No.: ______________________
On receipt by the undersigned of a check from_________________(maker
of check)
in the sum of $______________ payable to______________________(amount
of check) (payee or payees of check) and when the check
has been properly endorsed and has been paid by the bank
on which it is drawn, this document becomes effective to
release any mechanic’s lien, any state or federal
statutory bond right, any private bond right, any claim
for payment and any rights under any similar ordinance,
rule or statute related to claim or payment rights for persons
in the undersigned’s position that the undersigned
has on the job of
______________________________________________________________
(owner)
located at __________________________________ to the following
extent. This release covers a progress payment
(job description) for all labor, services, equipment or
materials furnished to the jobsite or to ______________________________________________,
(person with whom undersigned contracted) through ___________________
only and does not cover any retention, pending modifications
and changes or items (date) furnished after that date. Before
any recipient of this document relies on it, that person
should verify evidence of payment to the undersigned. The
undersigned warrants that he either has already paid or
will use the monies he receives from this progress payment
to promptly pay in full all of his laborers, subcontractors,
materialmen and suppliers for all work, materials, equipment
or services provided for or to the above referenced project
up to the date of this waiver.
Date: _____________________________________________________
(Company name)
By: ____________________________(Signature)
______________________________ _(Title)
2. Where the claimant is required to execute a waiver and
release in exchange for or in order to induce the payment
of a progress payment and the claimant asserts in the waiver
that it has been paid the progress payment, the waiver and
release shall follow substantially the following form:
Unconditional waiver and release on progress payment
Project: _________________
Job No.: _________________
The undersigned has been paid and has received a progress
payment in the sum of $___________ for all labor, services,
equipment or material furnished to the jobsite or to______________________________________________________________(person
with whom undersigned contracted) on the job of ___________________________________________________(owner)
located at ______________________________________________________(job
description) and does hereby release any mechanic’s
lien, any state or federal statutory bond right, any private
bond right, any claim for payment and any rights under any
similar ordinance, rule or statute related to claim or payment
rights for persons in the undersigned’s position that
the undersigned has on the above referenced project to the
following extent. This release covers a progress payment
for all labor, services, equipment or materials furnished
to the jobsite or to ______________________________________________________________
(person with whom undersigned contracted) through _________________only
and does not cover any retention, (date) pending modifications
and changes or items furnished after that date. The undersigned
warrants that he either has already paid or will use the
monies he receives from this progress payment to promptly
pay in full all of his laborers, subcontractors, materialmen
and suppliers for all work, materials, equipment or services
provided for or to the above referenced project up to the
date of this waiver.
Dated: _____________________________________________________
(Company name)By: _____________________________ (Signature)
_________________________________(Title)
(Each unconditional waiver shall contain the following language,
in type at least as large as the largest type otherwise
on the document:)
Notice: This document waives rights unconditionally and
states that you have been paid for giving up those rights.
This document is enforceable against you if you sign it,
even if you have not been paid. If you have not been paid,
use a conditional release form.
3. Where the claimant is required to execute a waiver and
release in exchange for or in order to induce payment of
a final payment and the claimant is not paid in exchange
for the waiver and release or a single payee check or joint
payee check is given in exchange for the waiver and release,
the waiver and release shall follow substantially the following
form:
Conditional waiver and release on final payment
Project: _______________
Job No.: _______________
On receipt by the undersigned of a check from ________________
(maker of check) in the sum of $_______________ payable
to ____________________ (amount of check) (payee or payees
of check) and when the check has been properly endorsed
and has been paid by the bank on which it is drawn, this
document becomes effective to release any mechanic’s
lien, any state or federal statutory bond right, any private
bond right, any claim for payment and any rights under any
similar ordinance, rule or statute related to claim or payment
rights for persons in the undersigned’s position,
the undersigned has on the job of ___________________ located
at ______________________________. (owner) (job description).
This release covers the final payment to the undersigned
for all labor, services, equipment or materials furnished
to the jobsite or to ____________________________________________________,
(person with whom undersigned contracted) except for disputed
claims in the amount of $_________. Before any recipient
of this document relies on it, the person should verify
evidence of payment to the undersigned. The undersigned
warrants that he either has already paid or will use the
monies he receives from this final payment to promptly pay
in full all his laborers, subcontractors, materialmen and
suppliers for all work, materials, equipment or services
provided for or to the above referenced project up to the
date of this waiver. Dated: _____________________________________________________
(Company name)
By: ____________________________ ___________________________(Signature)
(Title)
4. Where the claimant is required to execute a waiver and
release in exchange for or in order to induce payment of
a final payment and the claimant asserts in the waiver that
it has been paid the final payment, the waiver and release
shall follow substantially the following form:
Unconditional waiver and release on final payment
Project: _______________
Job No.: _______________
The undersigned has been paid in full for all labor, services,
equipment or material furnished to the jobsite or to _____________________________________________________________,(person
with whom undersigned contracted) on the job of _____________
located at _______________________(owner) (job description)
and does hereby waive and release any right to mechanic’s
lien, any state or federal statutory bond right, any private
bond right, any claim for payment and any rights under any
similar ordinance, rule or statute related to claim or payment
rights for persons in the undersigned’s position,
except for disputed claims for extra work in the amount
of $ __________. The undersigned warrants that he either
has already paid or will use the monies he receives from
this final payment to promptly pay in full all of his laborers,
subcontractors, materialmen and suppliers for all work,
materials, equipment or services provided for or to the
above referenced project.
Dated: _____________________________________________________
(Company name)
By: ____________________________ _______________________________
(Signature) (Title)
(Each unconditional waiver shall contain the following language
in type at least as large as the largest type otherwise
on the document:) Notice: This document waives rights unconditionally
and states that you have been paid for giving up those rights.
This document is enforceable against you if you sign it,
even if you have not been paid. If you have not been paid,
use a conditional release form. |
