March 1999 Volune 12 No3 - Utah State Bar

34
provide a lien claiant with a signifcant remedy for the non-
payment of labor and materials used to improve real property.
On the other hand, faiure to properly perfect a mechanc's lien
will cause the lien to be void.
E. HOW DO YOU ENFORCE A MECHAIC'S LIEN?
The enforcement of a mechanic's lien is generally referred to as
a "foreclosure." A mechanic's lien foreclosure is simar to a
mortgage foreclosure in that it is accomplished through a court.
In a successful mechanc's lien foreclosure lawsuit, the court
wil order the liened real property sold to pay the debt
evidenced by the mechanc's lien. The sale is conducted by the
county sherif. The real property, however, is subject to the
statutory six month right of redemption from the date of the sale.
On a residence, the lien claimant must fie a lawsuit to foreclose
the mechanic's lien within 180 days "from the date the lien
claimant last performed labor and services or last furnished
equipment or material."15 On nonresidential construction, the
lien claiant must fie a lawsuit to foreclose the mechanic's lien
within 12 months "from the date of final completion of the
original contract."16 In addition, in both instances, the lien
claiant is required, withi the same relevant time period, to
record with the county recorder of each county in which the
mechanic's lien is recorded a notice of pendency (i.e. a Notice
of Lis Pendens) of the lawsuit.
17 Faiure to timely fie the lawsuit
wi cause the mechanc's lien to be void. Faiure to timely
record the Notice of Lis Pendens shal cause the mechanic's lien
to be void, except as to those persons or entities who have been
made parties to the lawsuit and as to persons or entities having
actual knowledge of the commencement of the lawsuit.
Utah's mechanic's lien law is a complicated area of law and
contais many nuances. Cases interpreting Utah's mechanc's
lien statute tend to be very fact specifc. While this article
attempts to provide a brief overview of Utah mechanc's lien law,
attorneys involved in, or desiring to become involved in, the
preparation, fing, enforcing and defending of mechanc's liens
must frequently consult all relevant statutes and case law to
ensure al applicable requirements are timely satisfied.
lUtah's mechanic lien statue is contained in Utah Code Ann. §§38-1-1 to -270997 &
1998 Supp.).
2In some instances on residential projects, Section 38-1-3 may require subcontractors
to release their mechanc's lien and pursue recovery agaist the Residential lien
Restriction and lien Recovery Fund Act That Act provides that a lien claiant on a
residence, who has not contracted directly with the owner, cannot maintain a
mechanic's lien against an owner's real propert if: (1) the owner has a written contract
with an oiiginal contractor, (2) the owner assured that the original contractor was
properly licensed, (3) the owner assured that all necessaiy bullding permits were
obtaied from the applicable local government agency, and (4) the owner paid every-
thing due under the written contract with the original contractor. Such a lien claimant
must pursue recovery from the Residence Lien Restriction and Lien Recovery Fund and
not agaist the owner's residence.
3See Utah Code An. §58-50-11 (997) and§58A-I-16 (997).
4Utah Code Ann. § 38-1-3.
5SeeKing Brothers,Inc. v. Utah Dry Kiln Co., Inc., 374 P.2d 254 (Utah 1962).
6State v. Papanikola, 427 P.2d 749, 751 (Utah 1967).
7UtahCodeAn. §38-1-3.
8Utah Code Ann. § 38-1-17.
9 As a prerequisite to recoveiy of attorney's fees and costs, Section 38-1-7 requires a lien
claiant, withi 30 days afer fig a notice of lien, to deliver or mail by certifed mail a
copy of the notice of lien to either the reputed owner or record owner of the real
propert.
I°Utah Code An. §38-1-27(1).
llUta Code An. §38-1-7(1) (a) 0998 Supp.).
12Uta Code An. §38-11-102(l7 (997).
13Utah Code Ann. §38-1-70) (b) 0998 Supp.).
14Utah Code An. §38-1-5.
15Utah Code An. §38-1-11(1)(b) (997).
16Utah Code Ann. §38-1-11 0) (a) (997).
17Utah Code An. §38-1-11 (2) (a) (997).
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