38-1-32.   Preliminary notice by subcontractor.
     (1) (a) (i) Except for a person who has a contract with an owner or an owner-builder or a laborer compensated with wages, a subcontractor shall file a preliminary notice with the database within the later of:
     (A) 20 days after commencement of its own work or the commencement of furnishing labor, service, equipment, and material to a construction project; or
     (B) 20 days after the filing of a notice of commencement.
     (ii) A preliminary notice filed within the period described in Subsection (1)(a)(i) is effective as to all labor, service, equipment, and material furnished to the construction project, including labor, service, equipment, and material provided to more than one contractor or subcontractor.
     (iii) (A) If more than one notice of commencement is filed for a project, a person may attach a preliminary notice to any of the notices of commencement filed for the project.
     (B) A preliminary notice attached to an untimely notice of commencement is valid if there is also a valid and timely notice of commencement for the project to which the preliminary notice may attach.
     (b) If a person files a preliminary notice after the period prescribed by Subsection (1)(a), the preliminary notice becomes effective five days after the day on which the preliminary notice is filed.
     (c) Except as provided in Subsection (1)(e), failure to file a preliminary notice within the period required by Subsection (1)(a) precludes a person from maintaining any claim for compensation earned for performance of labor or service or supply of materials or equipment furnished to the construction project before the expiration of five days after the late filing of a preliminary notice, except as against the person with whom the person contracted.
     (d) (i) (A) If a person who is required to file a preliminary notice under this chapter fails to file the preliminary notice, that person may not hold a valid lien under this chapter.
     (B) A county recorder need not verify that a valid preliminary notice is filed when a person files a notice to hold and claim a lien under Section 38-1-7.
     (ii) The content of a preliminary notice shall include:
     (A) the building permit number for the project, or the number assigned to the project by the designated agent;
     (B) the name, address, and telephone number of the person furnishing the labor, service, equipment, or material;
     (C) the name and address of the person who contracted with the claimant for the furnishing of the labor, service, equipment, or material;
     (D) the name of the record or reputed owner of the project;
     (E) the name of the original contractor under which the claimant is performing or will perform its work; and
     (F) the address of the project or a description of the location of the project.
     (iii) Upon request by person identified in Subsection (1)(a)(i), an original contractor shall provide the person with the building permit number for the project, or the number assigned to the project by the designated agent.
     (e) If a person provides labor, service, equipment, or material before the filing of a notice of commencement and the notice of commencement is filed more than 15 days after the day on which the person providing labor, service, equipment, or material begins work on the project, the

person providing labor, service, equipment, or material need not file a preliminary notice to maintain the person's right to hold a lien under this chapter or any other right, including a right referenced under Subsection (1)(c).
     (2) (a) (i) Unless a person indicates to the division or designated agent that the person does not wish to receive a notice under this section, electronic notification of the filing of a preliminary notice or alternate notice as prescribed in Subsection (1), shall be provided to:
     (A) the person filing the preliminary notice;
     (B) each person that filed a notice of commencement for the project; and
     (C) all interested persons who have requested notices concerning the project.
     (ii) A person to whom notice is required under Subsection (2)(a)(i) is responsible for:
     (A) providing an e-mail address, mailing address, or telefax number to which a notice required by Subsection (2)(a) is to be sent; and
     (B) the accuracy of any e-mail address, mailing address, or telefax number to which notice is to be sent.
     (iii) The designated agent fulfills the notice requirement of Subsection (2)(a)(i) when it sends the notice to the e-mail address, mailing address, or telefax number provided to the designated agent whether or not the notice is actually received.
     (b) The burden is upon the person filing the preliminary notice to prove that the person has substantially complied with the requirements of this section.
     (c) Subject to Subsection (1)(d), a person required by this section to give preliminary notice is only required to give one notice for each project.
     (d) If the labor, service, equipment, or material is furnished pursuant to contracts under more than one original contract, the notice requirements must be met with respect to the labor, service, equipment, or material furnished under each original contract.
     (3) (a) If a construction project owner, original contractor, subcontractor, or other interested person believes that a preliminary notice has been filed erroneously, that owner, original contractor, subcontractor, or other interested person can request from the person who filed the preliminary notice evidence establishing the validity of the preliminary notice.
     (b) Within ten days after the request described in Subsection (3)(a), the person or entity that filed the preliminary notice shall provide the requesting person or entity proof that the preliminary notice is valid.
     (c) If the person or entity that filed the preliminary notice does not provide proof of the validity of the preliminary notice, that person or entity shall immediately cancel the preliminary notice from the database in any manner prescribed by the division pursuant to rule.
     (4) A person filing a preliminary notice by alternate filing is responsible for verifying and changing any incorrect information in the preliminary notice before the expiration of the time period during which the notice is required to be filed.
     (5) Until June 1, 2008, nothing in this section affects a person's rights under Title 38, Chapter 11, Residence Lien Restriction and Lien Recovery Fund Act.

Amended by Chapter 332, 2007 General Session
Download Code Section Zipped WordPerfect 38_01_003200.ZIP 4,616 Bytes

Sections in this Chapter|Chapters in this Title|All Titles|Legislative Home Page

Last revised: Wednesday, July 23, 2008