Chapter 2 - § 2.6 PROPERTY COVERED BY A MECHANICS' LIEN
| Jurisdiction | Colorado |
§ 2.6.1—Interests Subject to Liens
Mechanics' liens "extend to and cover so much of the lands whereon such building, structure, or improvement is made as may be necessary for the convenient use and occupation of such building, structure, or improvement. . . ."124 In fact, mechanics' liens can also extend to any additional property acquired by the owner after making the contract for the improvements.125
Additionally, a lien may attach to any transferable interest in property, not just the entire fee.126 This means that interests such as leases and licenses can also be subject to mechanics' liens.
The lien which attaches is not limited to an estate in fee, but extends to any interest of the person that is transferable, assignable, or conveyable in the real estate at whose instance and upon which a building, structure, or improvement is erected. For the purposes of the act, such person is deemed the owner. If he owns the fee, the lien is upon the fee. If he owns a lease estate, the lien attaches to that interest.127
Note that mechanics' liens are only allowed on private property.128 But that does not mean that all projects on public land are not subject to liens. Specifically, certain public-private partnership projects may technically be on public land, but include a lease to a private developer, such as lease-develop-operate arrangements. Although the fee interest would not be subject to a lien, the leasehold interest to the private entity might be. Furthermore, in 2019 Colorado passed SB 19-138, which requires bonds on certain construction projects using a public-private partnership funding agreement.129
§ 2.6.2—Liens Under Two or More Contracts
Occasionally, a lien claimant's work on a project will be performed pursuant to multiple contracts for various segments of work. But so long as the work is continuous, any lien that attaches shall be the same as if the work was performed pursuant to a single contract.130 This provision of the statute can impact the timing of the recording of a lien.
§ 2.6.3—Condos, Townhomes, and Common Areas
Performing work on the common areas of condominium and townhome projects entitles the lien claimant to a lien on the units themselves. In Plateau Supply Co. v. Bison Meadows Corp.,131 for example, all of Plateau's work was for the "common elements" of the condominium development, which each unit owner owns an undivided fractional interest in.132 All units benefit from work performed in the common areas. The court of appeals held that Plateau could lien the entire project.133 Furthermore, Plateau could bring its claim against the unsold units only without also claiming against the sold units.
In addition to the units that benefit from the work, a lien claimant performing work for the common areas may also claim a lien against the common areas themselves.134
See § 2.6.7 for a discussion of how courts handle blanket liens and apportionment of the same.
§ 2.6.4—Liens on Mining Property
Colorado's mechanics' lien statute also applies to work performed on and materials and equipment supplied for mines. But note that there is an exception for owners of any mine, lode, mining claim, deposit, mill, or tunnel where the work or labor has been performed for or the laborers or materials furnished to a lessee.135 This is contrary to the law with respect to the rights of lien claimants performing work under a contract with a lessee, as discussed in § 2.6.6.136
§ 2.6.5—Liens on Water Rights
By statute, mechanics' liens also attach to water rights. In the case of corporations, mechanics' liens attach to all the franchises and charter privileges that may pertain in any manner to said specified property.137
§ 2.6.6—Leased Real Estate and Real Estate Under Contract to Sell
On many occasions, construction takes place on real estate where a lessee or vendee, not the fee owner, is engaged either in the building of some structure or the remodeling of an existing structure (such as tenant finish), or is having design or construction work performed in contemplation of a purchase of the property. While the timing issues and other rules apply, there are some key issues to be aware of.
Work performed at the request of a lessee or vendee can be deemed to have been performed "at the instance and request of" the owner if the owner by lease or contract authorized the improvements.138 This section can apply not only to work performed pursuant to an actual lease, but to services performed under an option to lease even when the option is not exercised. In Seracuse...
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