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Liens | |
Mechanics' Liens | |
Section 32 | Preliminary notice for a private project. |
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38-1-32. Preliminary notice for a private project. (1) As used in this section: (a) "Pre-lender claimant" means a person whose lien under this chapter is made subject to a construction lender's mortgage or trust deed, as provided in Subsection 38-1-5(3)(b), by the person's acceptance of payment in full and the person's withdrawal of the person's preliminary notice. (b) "Refiled preliminary notice" means a preliminary notice that a pre-lender claimant files under Subsection (2)(a)(ii) with the database on a project after withdrawing a preliminary notice that the claimant previously filed for the same project. (2) (a) (i) A person who, under Section 38-1-3, is entitled to a construction service lien with respect to a private project shall file a preliminary notice with the database no later than 20 days after the person commences furnishing construction service to the project. (ii) A pre-lender claimant who, under Section 38-1-3, is entitled to claim a construction service lien for construction service the claimant furnishes to a private project after the recording of a construction lender's mortgage or trust deed on the project property shall file a preliminary notice within 20 days after the recording of the mortgage or trust deed. (b) Subject to Subsection (2)(c), a preliminary notice is effective as to all construction service that the person filing the notice furnishes to the private project, including construction service that the person furnishes to more than one contractor or subcontractor on that same project. (c) A preliminary notice filed after the period provided in Subsection (2)(a): (i) becomes effective five days after the day the preliminary notice is filed; and (ii) is not effective for construction service that the person who files the preliminary notice furnishes to the construction project before five days after the preliminary notice is filed. (d) (i) (A) A person who fails to file a preliminary notice as required in this section may not hold a valid construction service lien under this chapter. (B) A person who files a preliminary notice after the period provided in Subsection (2)(a) may not hold a valid construction service lien for construction service the person furnishes to the construction project before five days after the preliminary notice is filed. (ii) 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. (e) (i) Except as provided in Subsection (2)(e)(ii), a preliminary notice that is timely filed with the database with respect to a private project is considered to be filed at the time of the first preliminary notice filing, as defined in Section 38-1-5. (ii) A timely filed preliminary notice that is a refiled preliminary notice is considered to be filed immediately after the recording of a mortgage or trust deed of the construction lender that paid the pre-lender claimant in full for construction service the claimant furnished before the recording of the mortgage or trust deed. (f) If a preliminary notice filed with the database includes the tax parcel identification number of a parcel not previously associated in the database with a private project, the designated agent shall promptly notify the person who filed the preliminary notice that: (i) the preliminary notice includes a tax parcel identification number of a parcel not previously associated in the database with a private project; and (ii) the likely explanation is that: (A) the preliminary notice is the first filing for the project; or (B) the tax parcel identification number is incorrectly stated in the preliminary notice. (g) A preliminary notice for a private project shall include: (i) the name, address, telephone number, and email address of the person furnishing the construction service for which the preliminary notice is filed; (ii) the name and address of the person who contracted with the claimant for the furnishing of the construction service; (iii) the name of the record or reputed owner of the project property; (iv) the name of the original contractor for construction service under which the claimant is furnishing or will furnish construction service; (v) the address of the project property or a description of the location of the project; (vi) the name of the county in which the project property is located; and (vii) (A) the tax parcel identification number of each parcel included in the project property; (B) the entry number of a previously filed notice of construction loan under Section 38-1-30.7 on the same project; (C) the entry number of a previously filed preliminary notice on the same project that includes the tax parcel identification number of each parcel included in the project property; or (D) the entry number of the building permit issued for the project. (h) A preliminary notice for a private project may include: (i) the subdivision, development, or other project name applicable to the construction project for which the preliminary notice is filed; and (ii) the lot or parcel number of each lot or parcel that is included in the project property. (3) (a) 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 filing shall be provided to: (i) the person filing the preliminary notice; and (ii) each person who has requested a notice concerning the project. (b) A person to whom notice is required to be provided under Subsection (2)(a) is responsible for: (i) providing an email address, mailing address, or telefax number to which a notice required by Subsection (2)(a) is to be sent; and (ii) the accuracy of any email address, mailing address, or telefax number to which notice is to be sent. (c) The designated agent fulfills the notice requirement of Subsection (2)(a) by sending the notice to the email address, mailing address, or telefax number provided to the designated agent, whether or not the notice is actually received. (4) (a) The burden is upon the person filing the preliminary notice to prove that the person has substantially complied with the requirements of this section. (b) Substantial compliance with the requirements of Subsection (2)(g) may be established by a person's reasonable reliance on information in the database provided by a previously filed: (i) notice of construction loan under Section 38-1-30.7; (ii) preliminary notice; or (iii) building permit. (5) (a) Subject to Subsection (5)(b), a person required by this section to give preliminary
notice is only required to give one notice for each project.
Amended by Chapter 299, 2011 General Session |
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