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Where is my affidavit of service? is my notice of intent invalid without it?

Hello, We are a small company who was subcontracted to do asbestos work at a house in november. we have not seen payment for it. We filed with your company a notice of intent and received an email from a lwayer stating our notice was invalid becuase the notice did not also come with a service affidavit. In my account I can find an affidavit of delviery, not an affidavit of service. Is this the same thing?

1 reply

Mar 20, 2020

It's extremely common for an owner, a contractor, or their attornies to challenge a mechanics lien filing or even a Notice of Intent to Lien. And, often, they'll do this even if there's no real issue present. You can read more about that here: My Lien Was Challenged: What Do I Do?

Colorado's Notice of Intent may be mailed, and an affidavit of delivery is sufficient

Colorado's Notice of Intent to Lien requirements can be found at CRS § 38-22-109(3). Under that section, the notice must be "served by personal service or by registered or certified mail, return receipt requested, addressed to the last known address of such persons..." So, clearly, personal service isn't strictly required since delivery by mail is explicitly allowed by statute. Further, that section continues to state that "...an affidavit of such service or mailing...shall be filed for record with said statement and shall constitute proof of such service." So, again - it's clear that the notice may be made by mail and that an affidavit of that mailing is sufficient to prove the notice was properly and timely sent. Finally, if they are in actual receipt of the notice at least 10 days before the lien was filed/will be filed, then it's likely all a moot point. Ultimately, the purpose of sending the notice is to make sure than an owner and/or contractor receives it. And, if they've actually got it in their hands before the deadline, then that's ultimately the most important thing anyway. As a final note - if you've got any questions your Levelset account, feel free to contact your account manager or the Levelset Support team.

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