38-1-32 - Preliminary notice by subcontractor.
38-1-32. Preliminary notice by subcontractor.
(1) (a) (i) Except for a person who has a contract with an owner or an owner-builder or alaborer compensated with wages, a subcontractor shall file a preliminary notice with the databaseby the later of:
(A) 20 days after commencement of its own work or the commencement of furnishinglabor, service, equipment, and material to a construction project; or
(B) 20 days after the filing of a notice of commencement if the subcontractor's workcommences before the filing of the first notice of commencement.
(ii) A preliminary notice filed within the period described in Subsection (1)(a)(i) iseffective as to all labor, service, equipment, and material furnished to the construction project,including labor, service, equipment, and material provided to more than one contractor orsubcontractor.
(iii) (A) If more than one notice of commencement is filed for a project, a person mayattach a preliminary notice to any notice of commencement filed for the project by a partyauthorized in Section 38-1-31.
(B) A preliminary notice attached to an untimely notice of commencement is valid ifthere is also a valid and timely notice of commencement for the project filed by a partyauthorized in Section 38-1-31.
(b) If a person files a preliminary notice after the period prescribed by Subsection (1)(a),the preliminary notice becomes effective five days after the day on which the preliminary noticeis filed.
(c) Except as provided in Subsection (1)(e), failure to file a preliminary notice within theperiod required by Subsection (1)(a) precludes a person from maintaining any claim forcompensation earned for performance of labor or service or supply of materials or equipmentfurnished to the construction project before the expiration of five days after the late filing of apreliminary notice, except as against the person with whom the person contracted.
(d) (i) (A) If a person who is required to file a preliminary notice under this chapter failsto file the preliminary notice, that person may not hold a valid lien under this chapter.
(B) A county recorder need not verify that a valid preliminary notice is filed when aperson files a notice to hold and claim a lien under Section 38-1-7.
(ii) The content of a preliminary notice shall include:
(A) the building permit number for the project, or the number assigned to the project bythe designated agent;
(B) the name, address, and telephone number of the person furnishing the labor, service,equipment, or material;
(C) the name and address of the person who contracted with the claimant for thefurnishing of the labor, service, equipment, or material;
(D) the name of the record or reputed owner of the project;
(E) the name of the original contractor under which the claimant is performing or willperform its work; and
(F) the address of the project or a description of the location of the project.
(iii) Upon request by person identified in Subsection (1)(a)(i), an original contractor shallprovide the person with the building permit number for the project, or the number assigned to theproject by the designated agent.
(e) If a person provides labor, service, equipment, or material before the filing of a notice
of commencement and the notice of commencement is filed more than 15 days after the day onwhich the person providing labor, service, equipment, or material begins work on the project, theperson providing labor, service, equipment, or material need not file a preliminary notice tomaintain the person's right to hold a lien under this chapter or any other right, including a rightreferenced under Subsection (1)(c).
(2) (a) (i) Unless a person indicates to the division or designated agent that the persondoes not wish to receive a notice under this section, electronic notification of the filing of apreliminary notice or alternate notice as prescribed in Subsection (1), shall be provided to:
(A) the person filing the preliminary notice;
(B) each person that filed a notice of commencement for the project; and
(C) all interested persons who have requested notices concerning the project.
(ii) A person to whom notice is required under Subsection (2)(a)(i) is responsible for:
(A) providing an e-mail address, mailing address, or telefax number to which a noticerequired by Subsection (2)(a) is to be sent; and
(B) the accuracy of any e-mail address, mailing address, or telefax number to whichnotice is to be sent.
(iii) The designated agent fulfills the notice requirement of Subsection (2)(a)(i) when itsends the notice to the e-mail address, mailing address, or telefax number provided to thedesignated agent whether or not the notice is actually received.
(b) The burden is upon the person filing the preliminary notice to prove that the personhas substantially complied with the requirements of this section.
(c) Subject to Subsection (2)(d), a person required by this section to give preliminarynotice is only required to give one notice for each project.
(d) If the labor, service, equipment, or material is furnished pursuant to contracts undermore than one original contract, the notice requirements must be met with respect to the labor,service, equipment, or material furnished under each original contract.
(3) (a) If a construction project owner, original contractor, subcontractor, or otherinterested person believes that a preliminary notice has been filed erroneously, that owner,original contractor, subcontractor, or other interested person can request from the person whofiled the preliminary notice evidence establishing the validity of the preliminary notice.
(b) Within 10 days after the request described in Subsection (3)(a), the person or entitythat filed the preliminary notice shall provide the requesting person or entity proof that thepreliminary notice is valid.
(c) If the person or entity that filed the preliminary notice does not provide proof of thevalidity of the preliminary notice, that person or entity shall immediately cancel the preliminarynotice from the database in any manner prescribed by the division pursuant to rule.
(4) A person filing a preliminary notice by alternate filing is responsible for verifying andchanging any incorrect information in the preliminary notice before the expiration of the timeperiod during which the notice is required to be filed.
(5) Until June 1, 2008, nothing in this section affects a person's rights under Title 38,Chapter 11, Residence Lien Restriction and Lien Recovery Fund Act.
Amended by Chapter 50, 2009 General Session