One of our homeowners got an attorney who wrote us a letter saying that it is not legal for us to lien their property in the state of Utah since we are doing mitigation work only. Is this true?
In the case of All Clean, Inc. v. Timberline Properties, 2011 UT App 370, 264 P.3d 244 (link: https://www.courtlistener.com/opinion/2354897/all-clean-inc-v-timberline-properties/), the Utah Court of Appeals found that All Clean’s water remediation work, which included "the removal of the excess water and the drying, scrubbing, and mold prevention activities within the building, rather than replacements or changes implicating the structural components of ... [the] building or its fixtures" was not lienable, because it was, essentially, “ordinary cleanup” as opposed to an “improvement” to the real property. Id. at 2011 UT App 370, ¶ 17, 264 P.3d 244, 250.
Based upon the foregoing, the question of whether your water remediation work is lienable turns on whether it was “ordinary cleanup”—similar to All Clean’s work—or an “improvement” to the property. If your work was an “improvement,” it may be lienable, and you could file a lien provided you have complied with
Utah’s preliminary notice requirement by timely filing a proper preliminary notice on the Utah State Construction Registry (link: https://secure.utah.gov/scr/guide/index.html).
Even if your work is not lienable (or if you have not preserved your lien rights by filing a preliminary notice), you would still have a breach of contract claim (and possibly other claims) to collect your money.
All the best to you in collecting your money.