Mechanic's Liens-the Intent Provisions Explored
| Publication year | 1982 |
| Pages | 1492 |
| Citation | Vol. 11 No. 6 Pg. 1492 |
1982, June, Pg. 1492. Mechanic's Liens-The Intent Provisions Explored
In 1975, the Colorado legislature enacted a law requiring a potential lien claimant, at least ten days before recording the lien statement, to serve a copy of a notice of intent to file a lien statement upon the general contractor (if the claimant itself is not the general contractor) and upon the owner.(fn1)
This article discusses a number of questions which have surfaced in connection with these intent statements. Although only one Colorado appellate cases has been published on this specific issue, it may be helpful to review and analyze these problems.
C.R.S. 1973, § 38-22-109(3) provides:
In order to preserve any lien for work performed or materials furnished, there must be a notice of intent to file a lien statement served upon the owner or reputed owner of the property or his agent and the principal or prime contractor or his agent at least ten days before the time of filing the lien statement with the county clerk and recorder. Such notice of intent shall be served by personal service or by registered or certified mail, return receipt requested, addressed to the last known address of such persons, and an affidavit of such service or mailing at least ten days before filing of the lien statement with the county clerk and recorder shall be filed for record with said statement and shall constitute proof of such service.
The statute does not specifically state that the lien statement itself must be served; only the notice of intent is mentioned. Notwithstanding such ambiguity, it would appear that an intent to file without attaching a proposed copy of the lien statement would be almost meaningless. It would not give the owner and general contractor the information the legislature apparently intended for them to have; that is, to notify the owner of the amount due so as to afford the owner opportunity to withhold that amount and protect his interests by avoiding double payments for the same labor or materials.
It is better practice for the lien statement itself to be signed by the claimant rather than by his attorney. If the matter should go to litigation, and if the attorney signed the lien statement, there would be a serious problem with the attorney's ability to act as counsel, as well as a witness, should there be a dispute about the contents of the lien statement.
Likewise, it appears to be more prudent for the attorney not to sign the two
Controversy has arisen as to when the affidavits on the Notice of Intent should be signed and dated. A standard affidavit reads in part:
... this Notice of Intent to File a Lien was (personally served upon) (mailed by fully prepaid registered or certified mail, return receipt requested, to the last known address of) ___, the owner or reputed owner of the real property described upon the reverse of this Notice, or his agent, at least ten days prior to the presentation for filing of the statement of lien upon the reverse hereof.
The latter clause could imply that the affidavit cannot be signed until at least ten days have expired from the date that the intents were actually served.
On the other hand, if this is done, there is certainly the real possibility in the ten days interim that the party who actually prepared the mailing (or served the process by personal service) has become incapacitated, moved from the jurisdiction, or even died. To avoid such an event, it may be better to sign the affidavits at once, have them notarized on the day that the intents are served (either by mailing or personal service) and then hold the original of the "intent" in the file for the...
To continue reading
Request your trial