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Many Utah contractors are familiar with the construction lien process to secure payment for work or materials used in a building project. But what about the surveyors, architects, engineers, and others who provide services before breaking ground on the project? Utah actually gives them a similar payment tool, known as a preconstruction lien. However, the steps to claim one differ from the standard construction lien process. Here’s a breakdown of everything you need to know to secure, perfect, and enforce a preconstruction lien in Utah.
What is a preconstruction lien?
In Utah, a preconstruction lien is a form of payment protection for those that provide certain services before the construction phase of a project begins. This includes services such as land surveying, preparing drawings and specifications, and more.
Preconstruction liens v. construction liens
Utah provides two different types of liens for construction project participants to secure payment: The more traditional “construction lien” and a “preconstruction lien,” each of which has their own unique requirements.
But before we dive into the specifics, let’s start with the basics. What exactly constitutes “preconstruction services?”
The term is clearly defined under Utah Code §38-1a-102(29): “Preconstruction service” means to plan or design, or to assist in the planning or design of, an improvement or a proposed improvement:
- Before construction of the improvement commences
- For compensation separate from any compensation paid or to be paid for construction work for the improvement
This covers a wide variety of services, including:
- Conducting a site investigation or assessment
- Preconstruction cost or quantity estimating
- Preconstruction scheduling
- Performing a preconstruction construction feasibility review
- Procuring construction services,
- Preparing a study, report, rendering, model, boundary or topographic survey, plat, map, design, plan, drawing, specification, or contract document.
(Long) story short: A preconstruction lien is available to architects, engineers, surveyors, estimators, schedulers, and the like. Now that we know who is protected under Utah’s preconstruction lien laws, let’s move on to the how.
Preliminary notice requirements
Securing the right to file a preconstruction lien in Utah starts with a preliminary notice, which is referred to as a Notice of Preconstruction Service.
All potential claimants who provide preconstruction services must file a Notice of Preconstruction Service through the Utah State Construction Registry. It must be filed no fewer than 20 days after the person commences providing services for the anticipated improvement.
This is a strict deadline: Unlike preliminary notices for construction liens, if the deadline is missed, then the claimant loses the right to file a preconstruction lien.
Information required on a Notice of Preconstruction Service
- Claimant’s name, address, phone number, and email address
- Hiring party’s name, address, phone number, and email address
- General description of preconstruction services
- Owner of record’s name (or reputed owner’s name)
- County where the anticipated improvement is located
- Tax parcel ID number
- Statement that claimant intends to claim a preconstruction lien if not paid for the preconstruction services to be provided
How to file a preconstruction lien in Utah
If payment isn’t forthcoming, it may be time to file a lien. A preconstruction lien must be filed no later than 90 days after the last date the claimant performed services covered by the lien.
The lien must be filed in the county recorder’s office of the county where the project is located. View contact information for all county recorder offices in Utah here.
It’s a good idea to contact the recorder’s office ahead of time to confirm that you meet all the specific requirements.
The lien itself must include all of the following information:
- Claimant name, address, and number
- Statement that you are claiming a preconstruction lien
- Date notice of preconstruction services was filed
- Hiring party name
- Description of services
- Last date of performance
- Owner of record (or reputed owner) name
- Property description
- Amount claimed, excluding interest, costs, and attorney fees
- Signature of the claimant
- If the lien is against an owner-occupied residence, the lien must also include a statement describing the steps an owner may take to remove the lien in accordance with §38-11-106.
Once complete, the preconstruction lien form must be notarized before filing.
After the preconstruction lien has been filed, a copy of the claim should be sent to the property owner by certified mail within 30 days of filing.
Failing to provide a copy of the claim within 30 days isn’t fatal to the claimant’s rights, but missing the deadline will prevent them from collecting court costs and attorney fees if they need to foreclosure on the lien.
For more information, FAQs, and resources for both contractors and homeowners, visit the Utah Division of Occupational and Professional Licensing.
Preconstruction lien enforcement deadline
Utah preconstruction liens don’t last forever. Once filed, the claim will only be valid for 180 days from the date the claim was filed. If payment hasn’t been made, a foreclosure action must be initiated within this timeframe.
Keep in mind that a foreclosure action is a lawsuit, so you should consult with a Utah construction attorney to help guide you through this process.
Lastly, if payment does come before enforcement action is necessary, then a lien release should be filed to remove the claim from public record. This is standard procedure, but if a claimant fails to do so, a demand for the release of the claim will likely follow.
If such a demand is received, the lienholder should file a release within 10 days. Failure to do so can subject the lien holder to a penalty of $100 per day, or any actual damages incurred by the owner — whichever is greater.
More Utah construction payment resources
This is a guide on how to file Utah preconstruction liens, but you may have other questions about construction lien rights, prompt payment deadlines, retainage requirements, and more in Utah.
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