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Home>Levelset Community>Legal Help>What pertinent details muist be included on an Affidavit of delivery in the State of Colorado, in order to be valid?

What pertinent details muist be included on an Affidavit of delivery in the State of Colorado, in order to be valid?

ColoradoNotice of Intent to Lien

I have been contacted by a laywer saying that my affidavit of delivery is invalid, because it does not state the work that was performed. They laywer claims this would make our notice of intent invalid, which would subsequently makr our Lien invalid as well. We are reaching the end of the time frame on this, and I want to know if my affidavit is valid or not so that I can continue the Lien process if possible.

1 reply

Mar 24, 2020
Usually, an owner's first reflex, when faced with a mechanics lien claim, will be to argue the claim is invalid. And, an owner, or their attorney, may argue that a claim can't be filed for any number of reasons. So, it's right to be skeptical when assessing their claims, as discussed in this article: My Lien Was Challenged: What Do I Do? Before diving in - this question sounds pretty similar to another recent question and answer, which might provide some insight or context here: Where is my affidavit of service? Is my notice of intent invalid without it?

Colorado's affidavit of delivery rules are extremely simple

The Colorado Notice of Intent to Lien requirements can be found at CRS § 38-22-109(3), including the affidavit of delivery/affidavit of service rules. Under that section, the affidavit must show that the notice was served or mailed "...at least ten days before filing of the lien statement with the county clerk and recorder..." and then that affidavit must be served along with the lien claim. But, that section doesn't seem to state that the affidavit of mailing must contain specific information like a description of the work provided. And, that information would typically be included on the Notice of Intent to Lien, itself - not on the affidavit of delivery. Ultimately, the only reason an affidavit of delivery is required is to make sure that the Notice of Intent to Lien was actually mailed. So, there's nothing in the Colorado lien laws which requires the affidavit of delivery, itself, discuss any of the work that was done. And that makes perfect logical sense - an affidavit of delivery isn't a notice, it isn't a Notice of Intent, and it surely isn't a mechanics lien. It's not really designed to share or convey any information other than that service occurred or that mail was mailed. The point of the affidavit is to conclusively show that the owner and GC (as applicable) were sent timely notice before the lien was filed. So, when the notice was properly mailed, when it was received by the relevant parties, when there's an affidavit from the sender confirming it was properly and timely sent - there should be little doubt that the affidavit requirements have been fulfilled.

Bottom line

It's certainly important to make sure that all of your ducks are in a row when looking to file a mechanics lien. But, at the same time, keep in mind that it's in an owner's and their attorney's best interest to have a lien claimant refrain from filing their lien - so they may, on occasion, argue that the lien would be invalid even if that's not the case. If you're unsure about whether you've properly preserved your lien rights, it might be helpful to consult with a local Colorado construction attorney. After reviewing the documentation you sent, they can provide a clearer picture as to whether you've properly preserved your right to lien. For more information on Colorado's Notice of Intent to Lien requirements, this page should be valuable: Colorado Notice of Intent FAQs & Guide.
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