H.B. 171

1

MECHANICS' LIEN AMENDMENTS
2 2006 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Ross I. Romero
5 Senate Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill amends provisions concerning the enforcement of a mechanics' lien.
10 Highlighted Provisions:
11 This bill:
12 . provides that an unenforced mechanics' lien is void;
13 . addresses a court's lack of jurisdiction over a void lien; and
14 . makes technical changes.
15 Monies Appropriated in this Bill:
16 None
17 Other Special Clauses:
18 None
19 Utah Code Sections Affected:
20 AMENDS:
21 38-1-11, as last amended by Chapter 64, Laws of Utah 2005
22
23 Be it enacted by the Legislature of the state of Utah:
24 Section 1. Section 38-1-11 is amended to read:
25 38-1-11. Enforcement -- Time for -- Lis pendens -- Action for debt not affected --
26 Instructions and form affidavit and motion.
27 (1) A lien claimant shall file an action to enforce the lien filed under this chapter within

28 180 days from the day on which the lien claimant filed a notice of claim under Section 38-1-7 .
29 (2) (a) Within the time period provided for filing in Subsection (1) the lien claimant
30 shall file for record with the county recorder of each county in which the lien is recorded a
31 notice of the pendency of the action, in the manner provided in actions affecting the title or
32 right to possession of real property, or the lien shall be void, except as to persons who have
33 been made parties to the action and persons having actual knowledge of the commencement of
34 the action.
35 (b) The burden of proof [shall be] is upon the lien claimant and those claiming under
36 the lien claimant to show actual knowledge.
37 (3) (a) A lien filed under this chapter is automatically and immediately void if an action
38 to enforce the lien is not filed within the time required by this section.
39 (b) Notwithstanding Section 78-12-40 , a court has no subject matter jurisdiction to
40 adjudicate a lien that becomes void under Subsection (3)(a).
41 [(3)] (4) This section may not be interpreted to impair or affect the right of any person
42 to whom a debt may be due for any work done or materials furnished to maintain a personal
43 action to recover the same.
44 [(4)] (5) (a) If a lien claimant files an action to enforce a lien filed under this chapter
45 involving a residence, as defined in Section 38-11-102 , the lien claimant shall include with the
46 service of the complaint on the owner of the residence:
47 (i) instructions to the owner of the residence relating to the owner's rights under Title
48 38, Chapter 11, Residence Lien Restriction and Lien Recovery Fund Act; and
49 (ii) a form affidavit to enable the owner of the residence to specify the grounds upon
50 which the owner may exercise available rights under Title 38, Chapter 11, Residence Lien
51 Restriction and Lien Recovery Fund Act.
52 (b) The instructions and form affidavit required by Subsection [(4)] (5)(a) shall meet
53 the requirements established by rule by the Division of Occupational and Professional
54 Licensing in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
55 (c) If a lien claimant fails to provide to the owner of the residence the instructions and
56 form affidavit required by Subsection [(4)] (5)(a), the lien claimant [shall be] is barred from
57 maintaining or enforcing the lien upon the residence.
58 (d) Judicial determination of the rights and liabilities of the owner of the residence

59 under Title 38, [Chapters] Chapter 1, Mechanics' Liens, and Chapter 11, Residence Lien
60 Restriction and Lien Recovery Fund Act, and Title 14, Chapter 2, Private Contracts, shall be
61 stayed until after the owner has been given a reasonable period of time to establish compliance
62 with Subsections 38-11-204 (4)(a) and (4)(b) through an informal proceeding, as set forth in
63 Title 63, Chapter 46b, Administrative Procedures Act, commenced within 30 days of the owner
64 being served summons in the foreclosure action, at the Division of Occupational and
65 Professional Licensing and obtain a certificate of compliance or denial of certificate of
66 compliance, as defined in Section 38-11-102 .
67 (e) An owner applying for a certificate of compliance under Subsection [(4)] (5)(d)
68 shall send by certified mail to all lien claimants:
69 (i) a copy of the application for a certificate of compliance; and
70 (ii) all materials filed in connection with the application.
71 (f) The Division of Occupational and Professional Licensing shall notify all lien
72 claimants listed in an owner's application for a certificate of compliance under Subsection [(4)]
73 (5)(d) of the issuance or denial of a certificate of compliance.
74 [(5)] (6) The written notice requirement applies to liens filed on or after July 1, 2004.




Legislative Review Note
as of 1-12-06 3:26 PM

Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.

Office of Legislative Research and General Counsel