Representative Marc K. Roberts proposes the following substitute bill:




Chief Sponsor: Marc K. Roberts

Senate Sponsor: Daniel McCay


8     General Description:
9          This bill amends and enacts provisions related to notices filed with the State
10     Construction Registry.
11     Highlighted Provisions:
12          This bill:
13          ▸     amends definitions;
14          ▸     creates a new filing with the registry for a notice of intent to finance;
15          ▸     creates a new registry filing of a final lien waiver for a subcontractor to respond to a
16     notice of intent to finance; and
17          ▸     makes technical changes.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          This bill provides a special effective date.
22     Utah Code Sections Affected:
23     AMENDS:
24          38-1a-102, as last amended by Laws of Utah 2015, Chapter 258
25     ENACTS:

26          38-1a-603, Utah Code Annotated 1953
27          38-1a-604, Utah Code Annotated 1953

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 38-1a-102 is amended to read:
31          38-1a-102. Definitions.
32          As used in this chapter:
33          (1) "Alternate means" means a method of filing a legible and complete notice or other
34     document with the registry other than electronically, as established by the division by rule.
35          (2) "Anticipated improvement" means the improvement:
36          (a) for which preconstruction service is performed; and
37          (b) that is anticipated to follow the performing of preconstruction service.
38          (3) "Applicable county recorder" means the office of the recorder of each county in
39     which any part of the property on which a claimant claims or intends to claim a preconstruction
40     or construction lien is located.
41          (4) "Bona fide loan" means a loan to an owner or owner-builder by a lender in which
42     the owner or owner-builder has no financial or beneficial interest greater than 5% of the voting
43     shares or other ownership interest.
44          (5) "Claimant" means a person entitled to claim a preconstruction or construction lien.
45          (6) "Compensation" means the payment of money for a service rendered or an expense
46     incurred, whether based on:
47          (a) time and expense, lump sum, stipulated sum, percentage of cost, cost plus fixed or
48     percentage fee, or commission; or
49          (b) a combination of the bases listed in Subsection (6)(a).
50          (7) "Construction lender" means a person who makes a construction loan.
51          (8) "Construction lien" means a lien under this chapter for construction work.
52          (9) "Construction loan" does not include a consumer loan secured by the equity in the
53     consumer's home.
54          (10) "Construction project" means an improvement that is constructed pursuant to an
55     original contract.
56          (11) "Construction work":

57          (a) means labor, service, material, or equipment provided for the purpose and during
58     the process of constructing, altering, or repairing an improvement; and
59          (b) includes scheduling, estimating, staking, supervising, managing, materials testing,
60     inspection, observation, and quality control or assurance involved in constructing, altering, or
61     repairing an improvement.
62          (12) "Contestable notice" means a notice of preconstruction service under Section
63     38-1a-401, a preliminary notice under Section 38-1a-501, or a notice of completion under
64     Section 38-1a-506.
65          (13) "Contesting person" means an owner, original contractor, subcontractor, or other
66     interested person.
67          (14) "Designated agent" means the third party the division contracts with as provided
68     in Section 38-1a-202 to create and maintain the registry.
69          (15) "Division" means the Division of Occupational and Professional Licensing created
70     in Section 58-1-103.
71          (16) "Entry number" means the reference number that:
72          (a) the designated agent assigns to each notice or other document filed with the
73     registry; and
74          (b) is unique for each notice or other document.
75          (17) "Final completion" means:
76          (a) the date of issuance of a permanent certificate of occupancy by the local
77     government entity having jurisdiction over the construction project, if a permanent certificate
78     of occupancy is required;
79          (b) the date of the final inspection of the construction work by the local government
80     entity having jurisdiction over the construction project, if an inspection is required under a
81     state-adopted building code applicable to the construction work, but no certificate of occupancy
82     is required;
83          (c) unless the owner is holding payment to ensure completion of construction work, the
84     date on which there remains no substantial work to be completed to finish the construction
85     work under the original contract, if a certificate of occupancy is not required and a final
86     inspection is not required under an applicable state-adopted building code; or
87          (d) the last date on which substantial work was performed under the original contract,

88     if, because the original contract is terminated before completion of the construction work
89     defined by the original contract, the local government entity having jurisdiction over the
90     construction project does not issue a certificate of occupancy or perform a final inspection.
91          (18) "Final lien waiver" means a form that complies with Subsection 38-1a-802(4)(c).
92          [(18)] (19) "First preliminary notice filing" means a preliminary notice that:
93          (a) is the earliest preliminary notice filed on the construction project for which the
94     preliminary notice is filed;
95          (b) is filed on a construction project that, at the time the preliminary notice is filed, has
96     not reached final completion; and
97          (c) is not cancelled under Section 38-1a-307.
98          [(19)] (20) "Government project-identifying information" has the same meaning as
99     defined in Section 38-1b-102.
100          [(20)] (21) "Improvement" means:
101          (a) a building, infrastructure, utility, or other human-made structure or object
102     constructed on or for and affixed to real property; or
103          (b) a repair, modification, or alteration of a building, infrastructure, utility, or object
104     referred to in Subsection [(20)] (21)(a).
105          [(21)] (22) "Interested person" means a person that may be affected by a construction
106     project.
107          [(22)] (23) "Notice of commencement" means a notice required under Section
108     38-1b-201 for a government project, as defined in Section 38-1b-102.
109          [(23)] (24) "Original contract":
110          (a) means a contract between an owner and an original contractor for preconstruction
111     service or construction work; and
112          (b) does not include a contract between an owner-builder and another person.
113          [(24)] (25) "Original contractor" means a person, including an owner-builder, that
114     contracts with an owner to provide preconstruction service or construction work.
115          [(25)] (26) "Owner" means the person that owns the project property.
116          [(26)] (27) "Owner-builder" means an owner, including an owner who is also an
117     original contractor, who:
118          (a) contracts with one or more other persons for preconstruction service or construction

119     work for an improvement on the owner's real property; and
120          (b) obtains a building permit for the improvement.
121          [(27)] (28) "Preconstruction lien" means a lien under this chapter for a preconstruction
122     service.
123          [(28)] (29) "Preconstruction service":
124          (a) means to plan or design, or to assist in the planning or design of, an improvement or
125     a proposed improvement:
126          (i) before construction of the improvement commences; and
127          (ii) for compensation separate from any compensation paid or to be paid for
128     construction work for the improvement; and
129          (b) includes consulting, conducting a site investigation or assessment, programming,
130     preconstruction cost or quantity estimating, preconstruction scheduling, performing a
131     preconstruction construction feasibility review, procuring construction services, and preparing
132     a study, report, rendering, model, boundary or topographic survey, plat, map, design, plan,
133     drawing, specification, or contract document.
134          [(29)] (30) "Private project" means a construction project that is not a government
135     project.
136          [(30)] (31) "Project property" means the real property on or for which preconstruction
137     service or construction work is or will be provided.
138          [(31)] (32) "Registry" means the State Construction Registry under Part 2, State
139     Construction Registry.
140          [(32)] (33) "Required notice" means:
141          (a) a notice of preconstruction service under Section 38-1a-401;
142          (b) a preliminary notice under Section 38-1a-501 or Section 38-1b-202;
143          (c) a notice of commencement;
144          (d) a notice of construction loan under Section 38-1a-601;
145          (e) a notice under Section 38-1a-602 concerning a construction loan default;
146          (f) a notice of intent to obtain final completion under Section 38-1a-506; or
147          (g) a notice of completion under Section 38-1a-507.
148          [(33)] (34) "Subcontractor" means a person that contracts to provide preconstruction
149     service or construction work to:

150          (a) a person other than the owner; or
151          (b) the owner, if the owner is an owner-builder.
152          [(34)] (35) "Substantial work" does not include repair work or warranty work.
153          [(35)] (36) "Supervisory subcontractor" means a person that:
154          (a) is a subcontractor under contract to provide preconstruction service or construction
155     work; and
156          (b) contracts with one or more other subcontractors for the other subcontractor or
157     subcontractors to provide preconstruction service or construction work that the person is under
158     contract to provide.
159          Section 2. Section 38-1a-603 is enacted to read:
160          38-1a-603. Notice of intent to finance.
161          (1) An owner may file with the registry a notice of intent to finance.
162          (2) A notice of intent to finance under Subsection (1) shall state:
163          (a) the anticipated date on which financing will occur;
164          (b) the anticipated lender's name, address, and telephone number;
165          (c) the name of the trustor on the trust deed securing the anticipated loan;
166          (d) the tax parcel identification number of each parcel included in the project property;
167     and
168          (e) the name of the county in which the project property is located.
169          (3) If an owner chooses to file a notice of intent to finance, the owner shall file the
170     notice of intent to finance no less than 14 days before the date on which the financing is
171     anticipated to occur.
172          (4) If the financing does not occur within 30 days after the anticipated date specified in
173     the notice of intent to finance, the notice of intent to finance shall automatically have no effect
174     and shall be removed from the registry.
175          Section 3. Section 38-1a-604 is enacted to read:
176          38-1a-604. Notice of final lien waiver.
177          (1) After a notice of intent to finance is filed under Section 38-1a-603 on a project
178     property, each subcontractor that has filed a preliminary notice pertaining to the project
179     property may file with the registry a final lien waiver, if the subcontractor has performed all
180     anticipated construction work under the contract, and has been paid for all construction work

181     performed under the contract.
182          (2) The final lien waiver under Subsection (1) shall include a statement:
183          (a) that all anticipated construction work under the contract has been completed; and
184          (b) that no amount is owed under the contract.
185          (3) The final lien waiver described in Subsection (1) may be filed on the registry even
186     if no notice of intent to finance was filed on the registry.
187          Section 4. Effective date.
188          This bill takes effect on January 1, 2020.