Notice of Commencement Requirement
Filing a Utah Notice of Commencement used to be a requirement for both private and public projects in Utah. However, that is no longer the case. Now, only government jobs require a Notice of Commencement, and the preliminary notice timing provisions with respect to the filing of a Notice of Commencement are no longer applicable.
Utah uses an electronic construction notice registry to organize and link preliminary notices and there documents for all construction projects in the state. Until relatively recently a Notice of Commencement could be filed for both private and public projects, but that has changed. Now, direct contractors on private projects are required to submit a preliminary notice in order to retain lien rights, but no longer file a Notice of Commencement for private projects – and accordingly, the timelines for other parties’ preliminary notice requirements are no longer tied to or affected by a Utah Notice of Commencement.
On public projects, however, a Utah Notice of Commencement is still required. If a Notice of Commencement is not filed on a public project, no sub-tier participant is required to provide a preliminary notice in order to retain the right to make a claim against the project’s bond. Accordingly, every participant on a public construction project in Utah has an interest in the Notice of Commencement, and a Utah Notice of Commencement has an effect on everybody’s bond claim lien rights. This means it’s very important for everybody who works on public projects in Utah to have an understanding of what a Notice of Commencement is, and why it matters.
Generally, a Notice of Commencement is a form publicly filed to signify that a construction project is going to begin, or has begun. While Notice of Commencement filing and content requirements are generally similar throughout states in which they are required, Utah’s Notice of Commencement has some unique features, specifically, that this notice must be posted through an online portal.
The form overall is fairly simple. A Utah Notice of Commencement can be filled out directly in the Utah State Construction Registry (for those who have an account) or, of course, you can make the NOC process really easy by just filing the document online.
This page provides frequently asked questions, forms, and other helpful information about Utah’s Notice of Commencement.
Watch this short video that explains important Notice of Commencement requirements in easy to understand terms.
There used to be a Notice of Commencement requirement for private projects in Utah, that set the deadlines by which sub-tier parties had to file their preliminary notices in order to retain full lien rights. And, there is still a lot of information online and elsewhere related to the old requirement.
Now, however, there is no longer an NOC requirement for private projects. The only current Utah Notice of Commencement requirement relates to government projects.
Yes. Utah requires a Notice of Commencement to be filed on governmental projects, which is defined as a project “undertaken by or for:
(a) the state, including a department, division, or other agency of the state; or
(b) a county, city, town, school district, local district, special service district, community reinvestment agency, or other political subdivision of the state.”
On public projects in Utah, where a Notice of Commencement is required, the notice must be filed by “the original contractor, owner, or owner-builder.”
As a practical matter, the notice is generally filed by the GC. However, the notice has the significant consequence that sub-tier parties are excused from preliminary notice requirements if the Notice of Commencement is not filed, and, if multiple notices of commencement are filed they all relate back to the first such notice filed. Accordingly, it is likely best practice for the public property owner to also file a Utah Notice of Commencement if it appears that the GC may miss the filing deadline.
Utah has strict requirements for the deadline by which a Notice of Commencement may be filed. In Utah, the Notice of Commencement must be filed to the Utah State Construction Registry “no later than 15 days after commencement of physical construction work.”
This deadline is strict and may not be extended. If the deadline is missed, no sub-tier party is required to file a preliminary notice in order to retain the right to make a claim against the project’s payment bond.
Utah law requires that, when applicable, a Utah notice of commencement must be filed in the Utah State Construction Registry, which is identified in statute as “the designated agent” for filing. Any party filing a notice in the registry may appoint a third party to file the notice on their behalf, but the original party remains “responsible for verifying the accuracy of the information entered into the registry.”
So, a Utah Notice of Commencement may be filled out and filed by the user on the registry’s website, but it requires the construction participant to register for an account to do so. Alternatively, you can also file your Utah Notice of Commencement electronically here.
Filing a Notice of Commencement does not have any impact on the filing party’s rights – however, since NOCs are only required on public projects, and GCs do not have bond claim rights against their own bond, there are no rights that it would impact.
Filing or not filing a timely Notice of Commencement may have an impact on bond claim exposure, however. If the NOC is filed, sub-tier participants must file a preliminary notice within 20 days in order to retain the ability to make a claim against the bond. If the NOC is not filed, this preliminary notice requirement is waived.
According to Utah statute, a Notice of Commencement must include:
“Government project-identifying information” is identified as:
“(a) the lot or parcel number of each lot included in the project property that has a lot or parcel number; or
(b) the unique project number assigned by the designated agent.”
Additionally, a “notice of commencement may include a general description of the project.”
No. Unlike some other states with strict time limits for the effective period of a Notice of Commencement, there is no specific effective period set forth by Utah law for a notice of commencement in that state.
Utah requires the use of an online registry filing system for the filing of Notices of Commencement. Accordingly, there is no notarization requirement with respect to the filing of these notices.
There is no specific requirement to cancel or release the NOC directly. However, contractors on projects in Utah can and should file both a Notice of Intent to Complete (at least 45 days prior to the completion of the project) and a Notice of Completion (after the final inspection, certificate of occupancy, or substantial completion of work).
In Utah, a Notice of Commencement is only to be filed by the GC, the owner, or the owner-builder. As the filing of a Notice of Commencement imposes additional notice requirements on sub-tiered parties bond claim rights, it does not make sense for any sub-tier party to file a Notice of Commencement.
Yes. On public projects for which a Notice of Commencement is required, the filing of or failure to file a Notice of Commencement directly determines whether a preliminary notice is strictly required. While it is always best practice to send a preliminary notice in every case, whether or not specifically required, any sub-tier party “need not file a preliminary notice to maintain any right the person would otherwise have, if the notice of commencement” is not filed or is filed untimely.
The right to make a bond claim is not specific affected by the filing of a Notice Commencement, but as noted above, if the NOC is filed, sub-tier parties must provide a preliminary notice in order to retain these rights.
So, while the Notice of Commencement doesn’t directly impact bond claim rights, it does add an additional step to the process.
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Utah’s public works “Little Miller Act” statute can be found in Utah Code Titles 14, 38 and 63G. And, the rules and requirements specifically related to the Notice of Commencement process, for public projects, can be found at § 38-1b-201. Notice of commencement for a government project.
(1) No later than 15 days after commencement of physical construction work at a government project site, the original contractor, owner, or owner-builder shall file a notice of commencement with the registry.
(2) An original contractor, owner, or owner-builder on a government project may file a notice of commencement with the designated agent before the commencement of physical construction work on the project property.
(3)(a) If duplicate notices of commencement are filed, they shall be combined into one notice for each government project, and any notices filed relate back to the date of the earliest-filed notice of commencement for the project.
(b) A duplicate notice of commencement that is untimely filed relates back under Subsection (3)(a) if the earlier filed notice of commencement is timely filed.
(c) Duplicate notices of commencement shall be automatically linked by the designated agent.
(4) The designated agent shall assign each government project a unique project number that:
(a) identifies the project; and
(b) can be associated with all notices of commencement, preliminary notices, and notices of completion filed in connection with the project.
(5) A notice of commencement is effective only as to any construction work that is provided after the notice of commencement is filed.
(6)(a) A notice of commencement shall include:
(i) the name, address, and email address of the owner;
(ii) the name, address, and email address of the original contractor;
(iii) the name, address, and email address of the surety providing any payment bond for the project or, if none exists, a statement that a payment bond was not required for the work being performed;
(iv)(A) the address of the project property if the project property can be reasonably identified by an address; or
(B) the name and general description of the location of the project property, if the project property cannot be reasonably identified by an address; and
(v) the government project-identifying information.
(b) A notice of commencement may include a general description of the project.
(7) If a notice of commencement for a government project is not filed within the time set forth in Subsection (1), then Section 38-1b-202 and Section 38-1b-203 , with respect to the filing of a notice of completion, do not apply.
(8)(a) The burden is upon any person seeking to enforce a notice of commencement to verify the accuracy of information in the notice of commencement and prove that the notice of commencement is filed timely and meets all of the requirements of this section.
(b) A substantial inaccuracy in a notice of commencement renders the notice of commencement invalid.
(c) A person filing a notice of commencement by alternate means is responsible for verifying and changing any incorrect information in the notice of commencement before the expiration of the time period during which the notice is required to be filed.