TITLE 38 LIENS
CHAPTER 1 MECHANICS’ LIENS
38-1-1 Public Projects Excluded
38-1-2 “Contractor”, “Subcontractor”
38-1-3 Persons Entitled to Lien, Restrictions
38-1-4 Property to Which Lien Attaches
38-1-5 Priorities
38-1-6 Priorities, Attachments
38-1-7 Claim of Lien, Recording, Time, Contents, Service
38-1-8 Multiple Improvements
38-1-9 Recording, Notice
38-1-10 Equality of Liens
38-1-11 Action to Enforce, Time, Notice of Pendency, Personal
Action
38-1-13 Joinder of Parties
38-1-14 Order of Satisfaction
38-1-15 Sale, Distribution of Proceeds, Redemption
38-1-16 Deficiency Judgment
38-1-17 Costs
38-1-18 Attorneys Fees
38-1-19 No Impairment
38-1-20 Offsets and Counterclaims
38-1-21 Advance Payments
38-1-22 Advance Payments
38-1-23 Attachments
38-1-24 Cancellation, Failure to Cancel
38-1-25 Willful Overstatement, Misdemeanor
38-1-26 Assignment
38-1-27 Preliminary Notice, Exemption, Contents, Service,
Nonwaiver, Notice of Commencement
CHAPTER 12 NOTICE OF LIEN FILING
38-12-101 Definitions
38-12-102 Notice of Lien, Contents
38-12-103 Failure to Give Notice, Release, Penalties
38-12-104 Grounds of Lien
UTAH CODE
TITLE 38 LIENS
CHAPTER 1 MECHANICS’ LIENS
38-1-1 Public Projects Excluded
The provisions of this chapter shall not apply to any public
building, structure or improvement.
38-1-2 “Contractor”, “Subcontractor”
Whoever
shall do work or furnish materials by contract, express or
implied, with the owner, as in this chapter provided, shall
be deemed an original contractor, and all other persons doing
work or furnishing materials shall be deemed subcontractors.
38-1-3 Persons Entitled to Lien, Restrictions
Contractors, subcontractors, and all persons performing any
services or furnishing or renting any materials or equipment
used in the construction, alteration, or improvement of any
building or structure or improvement to any premises in any
manner and licensed architects and engineers and artisans
who have furnished designs, plats, plans, maps, specifications,
drawings, estimates of cost, surveys or superintendence, or
who have rendered other like professional service, or bestowed
labor, shall have a lien upon the property upon or concerning
which they have rendered service, performed labor, or furnished
or rented materials or equipment for the value of the service
rendered, labor performed, or materials or equipment furnished
or rented by each respectively, whether at the instance of
the owner or of any other person acting by his authority as
agent, contractor, or otherwise except as the lien is barred
under Section 38-11-107 of the Residence Lien Restriction
and Lien Recovery Fund Act. This lien shall attach only to
such interest as the owner may have in the property.
38-1-4 Property to Which Lien Attaches
The liens granted by this chapter shall extend to and cover
so much of the land whereon such building, structure, or improvement
shall be made as may be necessary for convenient use and occupation
of the land. In case any such building shall occupy two or
more lots or other subdivisions of land, such lots or subdivisions
shall be considered as one for the purposes of this chapter.
The liens provided for in this chapter shall attach to all
franchises, privileges, appurtenances, and to all machinery
and fixtures, pertaining to or used in connection with any
such lands, buildings, structures, or improvements.
38-1-5 Priorities
The liens herein provided for shall relate back to, and take
effect as of, the time of the commencement to do work or furnish
materials on the ground for the structure or improvement,
and shall have priority over any lien, mortgage or other encumbrance
which may have attached subsequently to the time when the
building, improvement or structure was commenced, work begun,
or first material furnished on the ground; also over any lien,
mortgage or other encumbrance of which the lien holder had
no notice and which was unrecorded at the time the building,
structure or improvement was commenced, work begun, or first
material furnished on the ground.
38-1-6
Priorities, Attachments
No
attachment, garnishment or levy under an execution upon any
money due to an original contractor from the owner of any
property subject to lien under this chapter shall be valid
as against any lien of a subcontractor or materialman, and
no such attachment, garnishment or levy upon any money due
to a subcontractor or materialman from the contractor shall
be valid as against any lien of a laborer employed by the
day or piece.
38-1-7
Claim of Lien, Recording, Time, Contents, Service
(1) A person claiming benefits under this chapter shall file
for record with the county recorder of the county in which
the property, or some part of the property, is situated, a
written notice to hold and claim a lien within 90 days from
the date:
(a) the person last performed labor or service or last furnished
equipment or material on a project or improvement for a residence
as defined in Section 38-11-102; or
(b) of final completion of an original contract not involving
a residence as defined in Section 38-11-102.
(2) This notice shall contain a statement setting forth:
(a) the name of the reputed owner if known or, if not known,
the name of the record owner;
(b) the name of the person by whom he was employed or to whom
he furnished the equipment or material;
(c) the time when the first and last labor or service was
performed or the first and last equipment or material was
furnished;
(d) a description of the property, sufficient for identification;
and
(e) the signature of the lien claimant or his authorized agent
and an acknowledgment or certificate as required under Title
57, Chapter 3, Recording of Documents. No acknowledgment or
certificate is required for any notice filed after April 29,
1985, and before April 24, 1989.
(3) Within 30 days after filing the notice of lien, the lien
claimant shall deliver or mail by certified mail to either
the reputed owner or record owner of the real property a copy
of the notice of lien. If the record owner’s current
address is not readily available, the copy of the claim may
be mailed to the last-known address of the record owner, using
the names and addresses appearing on the last completed real
property assessment rolls of the county where the affected
property is located. Failure to deliver or mail the notice
of lien to the reputed owner or record owner precludes the
lien claimant from an award of costs and attorneys’
fees against the reputed owner or record owner in an action
to enforce the lien.
38-1-8 Multiple Improvements
Liens against two or more buildings or other improvements
owned by the same person may be included in one claim; but
in such case the person filing the claim must designate the
amount claimed to be due to him on each of such buildings
or other improvements.
38-1-9 Recording, Notice
(1) The recorder must record the claim in an index maintained
for that purpose.
(2) From the time the claim is filed for record, all persons
are considered to have notice of the claim.
38-1-10
Equality of Liens
The liens for work and labor done or material furnished as
provided in this chapter shall be upon are equal footing,
regardless of date of filing the notice and claim of lien
and regardless of the time of performing such work and labor
or furnishing such material.
38-1-11
Action to Enforce, Time, Notice of Pendency, Personal Action
(1) A lien claimant shall file an action to enforce the lien
filed under this chapter within:
(a) twelve months from the date of final completion of the
original contract not involving a residence as defined in
Section 38-11-102; or
(b) 180 days from the date the lien claimant last performed
labor and services or last furnished equipment or material
for a residence, as defined in Section 38-11-102.
(2) (a) Within the time period provided for filing in Subsection
(1) the lien claimant shall file for record with the county
recorder of each county in which the lien is recorded a notice
of the pendency of the action, in the manner provided in actions
affecting the title or right to possession of real property,
or the lien shall be void, except as to persons who have been
made parties to the action and persons having actual knowledge
of the commencement of the action.
(b) The burden of proof shall be upon the lien claimant and
those claiming under him to show actual knowledge.
(3) This section may not be interpreted to impair or affect
the right of any person to whom a debt may be due for any
work done or materials furnished to maintain a personal action
to recover the same.
38-1-13 Joinder of Parties
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. Those claiming liens who fail or refuse
to become parties plaintiff may be made parties defendant,
and any one not made a party may at any time before the final
hearing intervene.
38-1-14 Order of Satisfaction
In every case in which liens are claimed against the same
property the decree shall provide for their satisfaction in
the following order:
(1) Subcontractors who are laborers or mechanics working by
the day or piece, but without furnishing materials therefore;
(2) All other subcontractors and all materialmen;
(3) The original contractors.
38-1-15 Sale, Distribution of Proceeds, Redemption
The court shall cause the property to be sold in satisfaction
of the liens and costs as in the case of foreclosure of mortgages,
subject to the same right of redemption. If the proceeds of
sale after the payment of costs shall not be sufficient to
satisfy the whole amount of liens included in the decree,
then such proceeds shall be paid in the order above designated,
and pro rata to the persons claiming in each class where the
sum realized is insufficient to pay the persons of such class
in full. Any excess shall be paid to the owner.
38-1-16 Deficiency Judgment
Every person whose claim is not satisfied as herein provided
may have judgment docketed for the balance unpaid, and execution
therefore against the party personally liable.
38-1-17 Costs
Except as provided in Section 38-11-107, as between the owner
and the contractor the court shall apportion the costs according
to the right of the case, but in all cases each subcontractor
exhibiting a lien shall have his costs awarded to him, including
the costs of preparing and recording the notice of claim of
lien and such reasonable attorneys’ fee as may be incurred
in preparing and recording said notice of claim of lien.
38-1-18 Attorneys Fees
Except as provided in Section 38-11-107, in any action brought
to enforce any lien under this chapter the successful party
shall be entitled to recover a reasonable attorneys’
fee, to be fixed by the court, which shall be taxed as costs
in the action.
38-1-19 No Impairment
When any subcontractor shall have actually begun to furnish
labor or materials for which he is entitled to a lien no payment
to the original contractor shall impair or defeat such lien;
and no alteration of any contract shall affect any lien acquired
under the provisions of this chapter.
38-1-20 Offsets and Counterclaims
As to all liens, except that of the contractor , the whole
contract price shall be payable in money, except as herein
provided, and shall not be diminished by any prior or subsequent
indebtedness, offset or counterclaim in favor of the owner
and against the contractor, except when the owner has contracted
to pay otherwise than in cash, in which case the owner shall
post in a conspicuous place on the premises a statement of
the terms and conditions of the contract before materials
are furnished or labor is performed, which notice must be
kept posted, and when so posted shall give notice to all parties
interested of the terms and conditions of the contract. Any
person willfully tearing down or defacing such notice is guilty
of a misdemeanor.
38-1-21 Advance Payments
No payment made prior to the time when the same is due under
the terms and conditions of the contract shall be valid for
the purpose of defeating, diminishing or discharging any lien
in favor of any person except the contractor; but as to any
such lien such payment shall be deemed as if not made, notwithstanding
that the contractor to whom it was paid may thereafter abandon
his contract or be or become indebted to the owner for damages
for nonperformance of his contract or otherwise.
38-1-22
Advance Payments
The
subcontractors’ liens provided for in this chapter shall
extend to the full contract price, but if at the time of the
commencement to do work or furnish materials the owner has
paid upon the contract, in accordance with the terms thereof,
any portion of the contract price, either in money or property,
the lien of the contractor shall extend only to such unpaid
balance, and the lien of any subcontractor who has notice
of such payment shall be limited to the unpaid balance of
the contract price. No part of the contract price shall by
the terms of any contract be made payable, nor shall the same
or any part thereof be paid in advance of the commencement
of the work, for the purpose of evading or defeating the provisions
of this chapter.
38-1-23
Attachments
Whenever materials have been furnished for use in the construction,
alteration or repair of any building, work or other improvement
mentioned in Section 38-1-3 such materials shall not be subject
to attachment, execution or other legal process to enforce
any debt due by the purchaser of such materials, other than
a debt due for the purchase money thereof, so long as in good
faith the same are about to be applied to the construction,
alteration or repair of such building or improvement.
38-1-24
Cancellation, Failure to Cancel
The
claimant of any lien filed as provided herein, on the payment
of the amount thereof together with the costs incurred and
the fees for cancellation, shall at the request of any person
interested in the property charged therewith cause said lien
to be canceled of record within ten days from the request,
and upon failure to so cancel his lien within the time aforesaid
shall forfeit and pay to the person making the request the
sum of $20 per day until the same shall be canceled, to be
recovered in the same manner as other debts.
38-1-25
Willful Overstatement, Misdemeanor
Any person entitled to record or file a lien under Section
38-1-3 is guilty of a class B misdemeanor who intentionally
causes a claim of lien against any property, which contains
a greater demand than the sum due to be recorded or filed:
(1) with the intent to cloud the title;
(2) to exact from the owner or person liable by means of the
excessive claim of lien more than is due; or
(3) to procure any unjustified advantage or benefit.
38-1-26
Assignment
All liens under this chapter shall be assignable as other
chose in action, and the assignee may commence and prosecute
actions thereon in his own name in the manner herein provided.
38-1-27
Preliminary Notice, Exemption, Contents, Service, Nonwaiver,
Notice of Commencement
(1) This section relating to preliminary notices does not
apply to residential construction or to work performed in
the development of subdivisions whose end use is for residential
construction. For the purposes of this section, residential
construction means single family detached housing and multifamily
attached housing up to and including fourplexes, and includes
rental housing.
(2) Except subcontractors who are in privity of contract with
an original contractor or except for persons performing labor
for wages, any person claiming, reserving the right to claim,
or intending to claim a mechanic’s lien under this chapter
for labor, service, equipment, or material shall provide preliminary
notice to the original contractor as prescribed by this section.
Any person who fails to provide this preliminary notice has
no right to claim a mechanic’s lien under this chapter.
(3) The preliminary notice required by this section shall
be in writing and may be given at anytime during the course
of the project or improvement.
(4) A person required by this section to give preliminary
notice is only required to give one notice for each project
or improvement, which may include an entire structure or a
scheme of improvements.
(5) If the labor, service, equipment, or material is furnished
pursuant to contracts with more than one subcontractor or
with more than one original contractor, the notice requirements
must be met with respect to the labor, service, equipment,
or materials furnished to each such subcontractor or original
contractor.
(6) The person required by this section to give preliminary
notice is precluded from making a claim for any labor, service,
equipment, or material which was provided more than 45 days
prior to the date the preliminary notice is given. The preliminary
notice must be given before a notice of lien is filed with
the county recorder pursuant to Section 38-1-7.
(7) The preliminary notice under this section shall include:
(a) the name, address, and telephone number of the person
furnishing the labor, service, equipment, or material;
(b) the name and address of the person who contracted for
the furnishing of the labor, service, equipment, or material;
and
(c) the address of the project or improvement or a drawing
sufficient to describe the location of the project or improvement.
(8) (a) Service of a preliminary notice is sufficient if the
notice is deposited in the United States mail, certified or
registered, return receipt requested, postage prepaid. Service
of the preliminary notice by mail is complete upon deposit
of the certified or registered mail.
(b) A preliminary notice served by mail may be addressed to
the original contractor at his place of business, or his address
as shown on the notice of commencement on record with the
county recorder as required by Subsection (10).
(9) The applicability of this section, including the waiver
of rights or privileges granted or protected by this section,
may not be varied by agreement.
(10) Any right to assert a defense of failure to comply with
the preliminary notice requirements of this section is void
unless the original contractor records a notice of commencement
of the project or improvement with the county recorder for
the county or counties where the project is located within
30 days after commencement of the project. The notice of commencement
shall include the following:
(a) the name and address of the owner of the project or improvement;
(b) the name and address of the original contractor;
(c) the name and address of the surety providing any payment
bond for the project or improvement, or if none exists, a
statement that a payment bond was not required for the work
being performed;
(d) the name and address of the project; and
(e) a legal description of the property on which the project
is located.
CHAPTER 12 NOTICE OF LIEN FILING
38-12-101 Definitions
For purposes of this chapter:
(1) “Lien” means:
(a) failure to pay moneys owed for property, services, or
a judgment that becomes a charge against or interest in:
(i) real property, a building, a structure, or an improvement
including any franchise, privilege, appurtenance, machinery,
or fixture pertaining to or used in connection with any real
property, building, structure, or improvement;
(ii) personal property; or
(iii) a judgment, settlement, or compromise; or
(b) a tax as provided in Section 59-1-302.1, 59-5-108, 59-5-208,
59-11-110, or 59-12-112. (2) “Lien” does not mean
a charge against or interest in, for failure to pay moneys
owed for property, services, or a judgment, any:
(a) bank account;
(b) pension; or
(c) garnishment.
38-12-102 Notice of Lien, Contents
(1) No later than 30 days after the day on which a lien claimant’s
or the lien claimant’s authorized agent files for recordation
a notice of lien meeting the requirements of Subsection (2)
with a county recorder, county clerk, or clerk of the court,
a lien claimant or the lien claimant’s agent shall send
by certified mail a written copy of the notice of lien to
the last-known address of the person against whom the notice
of lien is filed.
(2) The notice of lien shall contain the following information:
(a) the name and address of the person against whom the lien
is filed;
(b) (i) a statement that certain property owned by the person
against whom the lien is filed is subject to a lien;
(ii) the amount of the judgment, settlement, or compromise
if the lien is based on a charge against or interest in a
judgment, settlement, or compromise; or
(iii) the amount of state taxes owed;
(c) the article number contained on the certified mail receipt;
(d) the date the notice of lien was filed; and
(e) the name and address of the lien claimant.
(3) The notice requirements of Subsections (1) and (2) do
not apply to a:
(a) mechanics’ lien as provided in Title 38, Chapter
1, Mechanics’ Liens;
(b) lessors’ lien as provided in Title 38, Chapter 3,
Lessors’ Liens;
(c) federal tax lien as provided in Title 38, Chapter 6, Federal
Tax Liens;
(d) hospital lien as provided in Title 38, Chapter 7, Hospital
Lien Law;
(e) self-service storage facilities lien as provided in Title
38, Chapter 8, Self-Service Storage Facilities;
(f) oil, gas, or mining lien as provided in Title 38, Chapter
10, Oil, Gas and Mining Liens;
(g) claim against the Residence Lien Recovery Fund as provided
in Title 38, Chapter 11, Residence Lien Restriction and Lien
Recovery Fund Act;
(h) trust deed;
(i) mortgage;
(j) interests subject to a security agreement as defined in
Subsection 70A-9-105(1); or
(k) other liens subject to the same or stricter notice requirements
than those imposed by Subsections (1) and (2).
38-12-103
Failure to Give Notice, Release, Penalties
(1) (a) A person who fails to meet the notice requirements
of Subsections 38-12-102(1) and (2) is precluded from receiving
an award of costs and attorneys’ fees from the person
against whom a notice of lien has been filed in an action
to enforce the lien if costs and attorneys’ fees are
authorized by contract or statute.
(b) Subsection (1)(a) does not create a right to costs and
attorneys’ fees.
(2) In addition to the penalties provided in Subsection (1)(a),
a lien claimant who, within 20 days from the date of receiving
notice of noncompliance with the notice requirements of Subsection
38-12-102(1) or (2), willfully refuses to release the notice
of lien or record the lien in compliance with Section 38-12-102
is liable to the person against whom the notice of lien was
filed for $1,000 or for treble damages, whichever is greater.
(3) Failure to meet the notice requirements of Subsections
38-12-102(1) and (2) does not:
(a) invalidate any lien arising at common law or in equity
or by any statute of this state; or
(b) affect the rules of priority provided in Title 70A, Chapter
9, Part 3.
38-12-104
Grounds of Lien
The
provisions of this chapter do not create independent grounds
for imposing a lien. |
