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Can you file a Utah Preliminary Notice before starting the project and still be compliant with the notice deadline?

UtahLien DeadlinesPreliminary Notice

Typically the department for this zlien user will receive a copy of the contract for a new project, but won't know the exact start date until the month after. Since they won't know the start date until after the deadline, could they file the preliminary notice when they receive the copy of the contract? If they did this, would they still be compliant with the deadline and be fully protected?

1 reply

Aug 1, 2018
Generally, absent specific language to the contrary, it is perfectly acceptable to send preliminary notice "early" and maintain lien rights.

Many states, including Utah, have similar language to California's preliminary notice requirement that specifies that notices must be provided within 20 days from first furnishing labor or materials to the project. Utah, specifically, notes that "a person who desires to claim a construction lien on real property shall file a preliminary notice with the registry no later than 20 days after the day on which the person commences providing construction work on the real property."

The general interpretation by courts of this particular type of language is that "The statute does not specify an initial date for serving the preliminary notice nor does it specify a date before which notice may not be given; it merely provides a deadline after which a preliminary notice may not be served. Moreover, the purpose of the preliminary notice requirement is to notify the owner, contractor, and lender of potential mechanic’s lien claims. Allowing the notice to be given before work begins is consistent with the statutory purpose of giving notice, facilitates the constitutionally guaranteed right to claim for work or materials furnished, and avoids the absurd consequences that would result from a contrary interpretation." (from a CA case on exactly this issue).

Accordingly, notices provided pursuant to signing the contract are generally acceptable and sufficient to retain lien rights and protect the amount to be furnished to the project - whether the labor or materials were as yet un-furnished at the time the notice was provided / filed in the registry.
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