Over the years, I’ve fielded countless calls from frantic individuals, subcontractors, contractors and suppliers desperate to file a construction lien against a project immediately because that was the only way they were going to be paid.
They’re right. That is the only way they were likely ever to get paid. But unfortunately, it’s not quite that easy. All too often their response to my very first question dashes any hope of ever seeing their money. That question: Did you file a preliminary notice within 20 days of commencing your work on the project?
Who Has to File a Preliminary Notice?
A construction lien, in the right circumstances, can force payment for the materials or services that have been provided to the project. But as Utah law clearly states, a “person who fails to file a preliminary notice as required in this section may not claim a construction lien.”[1] That means any person, company, supplier, subcontractor, or contractor must file a preliminary notice in order to have the right to file a construction lien against a project.
I’ve watched over the last few decades as the requirement for filing a preliminary notice has changed again and again. The result is widespread confusion about who needs to file, when it needs to be filed, and what the consequences are of not filing. Years ago, if you had contracted directly with the general contractor, no preliminary notice was required. Then the statute changed and everyone but the general contractor had to file a preliminary notice. In the last few years, the statute was changed again to require EVERYONE to file a preliminary notice if they want to preserve a right to file a construction lien (or pursue a construction payment bond claim).
How Do I File a Preliminary Notice?
You have a few options. There are several construction notice filing services that assist in filing preliminary notices for a fee. If you are more of a do-it-yourselfer and are comfortable with searching property descriptions with the county recorder’s office, you can open an account with the Utah State Construction Registry and do your own preliminary notices for the nominal fee.
The important thing is that if the project you are working on is one in which you may need to rely on a construction lien or bond claim in order to secure or encourage payment, then get your preliminary notice filed within 20 days of commencing work.
Already done so? Don’t hesitate to reach out to me directly and together we’ll explore all your options when it comes to encouraging payment.
[1] Utah Code section 38-1a-501
