Chapter 2 - § 2.1 PERSONS WHO MAY FILE LIENS

• Jurisdiction: Colorado

§ 2.1 PERSONS WHO MAY FILE LIENS

Because lien statutes are in derogation of the common law, they are strictly construed when determining who is entitled to a lien. As explained over a century ago:

A mechanic's lien statute . . . must be strictly construed in determining the question as to whether the right to a lien exists. Where the inquiry is whether a person asserting a lien or the work for which he claims it, comes within the statutes, or whether the statutory requirements necessary to initiate the lien have been complied with, the statute must be strictly construed. . . . Only those persons to whom the statute plainly or expressly gives the right to a lien, can acquire it.¹

Although this strict construction has resulted in the denial of lien rights to those who do not fall squarely within the statute, Colorado's lien statute is fairly broad and has been amended by legislation to expand the class of parties entitled to lien rights.

§ 2.1.1—Contractors

General contractors and subcontractors are clearly within the scope of those entitled to liens. Specifically:

contractors, subcontractors, builders, and all persons of every class performing labor upon or furnishing directly to the owner or persons furnishing labor, laborers, or materials to be used in construction, alteration, improvement, addition to, or repair, either in whole or in part, of any [improvement] . . . shall have a lien upon the property. . . .²

§ 2.1.2—Laborers

In addition to laborers themselves, those supplying laborers for construction projects are also entitled to liens. In 2000, in response to the Colorado Court of Appeals holding in Skillstaff of Colorado, Inc. v. Centex Real Estate Corporation,³ the Colorado General Assembly passed SB 00-066, which extended lien rights to personnel agencies and labor pools that furnish laborers for construction projects.

§ 2.1.3—Superintendents

While superintendents are included within the scope of the lien statute, not all work performed by such superintendents is lienable. In Pitschke v. Pope,⁴ the court of appeals held that "superintendence" work that is lienable involves "seeing that the labor was properly applied to the material."⁵ In contrast, time spent putting pressure on suppliers to ensure delivery is not considered "superintendence" and thus is not lienable.⁶

§ 2.1.4—Designers, Engineers, and Architects

Architects, engineers, and others providing design services are also specifically identified in Colorado's mechanics' lien statute as having lien rights. Specifically, the lien statute covers:

architects, engineers, draftsmen, and artisans who have furnished designs, plans, plats, maps, specifications, drawings, estimates of cost, surveys, or superintendence, or who have rendered other professional or skilled service, or bestowed labor in whole or in part, describing or illustrating, or superintending such structure, or work done or to be done, or any part connected therewith, shall have a lien upon the property. . . .⁷

In fact, because the statute specifies that an architect's lien applies to both "work done or to be done," these design and engineering professionals can have lien rights even when their designs and plans are not used and the improvements are never built.⁸

The fact that design professionals have lien rights is important to all classes of lien claimants, since, as discussed below in § 2.5.1, the priority date for all lien claimants relates back to the time of the commencement of work under the contract between the owner and the first contractor.⁹ The design professionals are typically the first ones to perform work, and preliminary design services constitute "commencement of the work" for purposes of priority.¹⁰

§ 2.1.5—Surveyors and Engineers Plotting Mines

The lien statute specifically notes that it applies to surveyors and civil and mining engineers doing any work of surveying or plotting of any mines, mining claims, lodes, or mineral deposits.¹¹

§ 2.1.6—Material and Equipment Suppliers

Material and equipment suppliers can have lien rights, but there are limitations. One key limitation to the lien rights of equipment and material suppliers is that the equipment and materials must have been supplied to the owner or the owner's "agent." "Privity" with the owner is not necessary in order to be entitled to lien rights. But anyone claiming a lien must have provided services or materials "at the instance of the owner, or of any other person acting by the owner's authority or under the owner, as agent, contractor, or otherwise. . . ."¹² An "agent" of the owner includes the principal contractor and subcontractors...