What are the requirements to file a lien for work done on a property?
Full Question:
I am a licensed contractor in state of AZ. I last worked on a property March 8, 2009. I provided materials and labor to the property. I did not fill a Pre Lien notice. Can I still file liens on this property?
04/09/2009 |
Category: Contractors ยป Construction... |
State: Arizona |
#15930
Answer:
The Pre-Lien Notice must be served no later than 20 days after the claimant has first furnished labor, services, materials, machinery, fixtures, or tools to the project. If you forget, you can always serve the Pre-Lien Notice late, but you get a Mechanic’s Lien only for the labor and materials furnished for the 20 days immediately before sending out the Pre-Lien Notice and for labor and materials furnished thereafter. If you are unable to file a mechanics lien due to failure to properly serve a Pre-Lien Notice, it may still be possible to use contract remedies. If a judgment is won in a breach of contract action, and the judgment remains unpaid, it is possible to file a judgment lien on the defendant's property.
The following are AZ statutes:
33-992.01. Preliminary twenty day notice; definitions; content; election;
waiver; service; single service; contract
A. For the purposes of this section:
1. "Construction lender" means any mortgagee or beneficiary under a deed
of trust lending funds all or a portion of which are used to defray the
cost of the construction, alteration, repair or improvement, or any
assignee or successor in interest of either.
2. "Original contractor" means any contractor who has a direct
contractual relationship with the owner.
3. "Owner" means the person, or the person's successor in interest, who
causes a building, structure or improvement to be constructed, altered or
repaired, whether the interest or estate of the person is in fee, as vendee
under a contract to purchase, as lessee, or other interest or estate less
than fee. Where an interest or estate is held by two or more persons as
community property, joint tenants or tenants in common, any one or more of
the persons may be deemed the owner.
4. "Preliminary twenty day notice" means one or more written notices from
a claimant that are given prior to the recording of a mechanic's lien and
which are required to be given pursuant to this section.
B. Except for a person performing actual labor for wages, every person
who furnishes labor, professional services, materials, machinery,
fixtures or tools for which a lien otherwise may be claimed under this
article shall, as a necessary prerequisite to the validity of any claim
of lien, serve the owner or reputed owner, the original contractor or
reputed contractor, the construction lender, if any, or reputed
construction lender, if any, and the person with whom the claimant has
contracted for the purchase of those items with a written preliminary
twenty day notice as prescribed by this section.
C. The preliminary twenty day notice referred to in subsection B of this
section shall be given not later than twenty days after the claimant has
first furnished labor, professional services, materials, machinery,
fixtures or tools to the jobsite and shall contain the following
information:
1. A general description of the labor, professional services, materials,
machinery, fixtures or tools furnished or to be furnished and an estimate
of the total price thereof.
2. The name and address of the person furnishing labor, professional
services, materials, machinery, fixtures or tools.
3. The name of the person who contracted for the purchase of labor,
professional services, materials, machinery, fixtures or tools.
4. A legal description, subdivision plat, street address, location with
respect to commonly known roads or other landmarks in the area or any other
description of the jobsite sufficient for identification.
5. The following statement in bold-faced type:
In accordance with Arizona Revised Statutes section 33-992.01, this is
not a lien and this is not a reflection on the integrity of any
contractor or subcontractor.
Notice to Property Owner
If bills are not paid in full for the labor, professional services,
materials, machinery, fixtures or tools furnished or to be furnished, a
mechanic's lien leading to the loss, through court foreclosure
proceedings, of all or part of your property being improved may be placed
against the property. You may wish to protect yourself against this
consequence by either:
1. Requiring your contractor to furnish a conditional waiver and
release pursuant to Arizona Revised Statutes section 33-1008,
subsection D, paragraphs 1 and 3 signed by the person or firm giving you this notice
before you make payment to your contractor.
2. Requiring your contractor to furnish an unconditional waiver and
release pursuant to Arizona Revised Statutes section 33-1008,
subsection D, paragraphs 2 and 4 signed by the person or firm giving you this notice
after you make payment to your contractor.
3. Using any other method or device which is appropriate under the
circumstances.
D. The preliminary notice given by any claimant shall follow
substantially the following form:
Arizona Preliminary Twenty Day Lien Notice
In accordance with Arizona Revised Statutes section 33-992.01, this is
not a lien. This is not a reflection on the integrity of any contractor
or subcontractor.
This preliminary lien notice has
The name and address been completed by (name and address of the
owner
or of claimant):
reputed owner are: Date: _________________________
By: ___________________________
Address: ______________________
The name and address
You are hereby notified that the
of the original
claimant has furnished or will
contractor are:
furnish labor, professional
services, materials, machinery,
fixtures or tools of the following general description:
The name and address of
any lender or reputed
lender and assigns
are: In the construction, alteration or repair of the
building, structure or improvement located at:
The name and address
of the person with
whom the claimant
has contracted are:
And situated upon that certain
lot(s) or parcel(s) of land in
__________ County, Arizona,
described as follows:
An estimate of the total price of
the labor, professional services,
materials, machinery, fixtures
or tools furnished or to be
furnished is: $__________________
(The following statement shall be in bold-faced type.)
Notice to Property Owner
If bills are not paid in full for the labor, professional services,
materials, machinery, fixtures or tools furnished, or to be furnished, a
mechanic's lien leading to the loss, through court foreclosure
proceedings, of all or part of your property being improved may be placed
against the property. You may wish to protect yourself against this
consequence by either:
1. Requiring your contractor to furnish a conditional waiver and
release pursuant to Arizona Revised Statutes section 33-1008,
subsection D, paragraphs 1 and 3 signed by the person or firm giving you this notice
before you make payment to your contractor.
2. Requiring your contractor to furnish an unconditional waiver and
release pursuant to Arizona Revised Statutes section 33-1008,
subsection D, paragraphs 2 and 4 signed by the person or firm giving you this notice
after you make payment to your contractor.
3. Using any other method or device that is appropriate under the
circumstances.
(The following language shall be in type at least as large as the
largest type otherwise on the document.)
Within ten days of the receipt of this preliminary twenty day notice
the owner or other interested party is required to furnish all
information necessary to correct any inaccuracies in the notice pursuant
to Arizona Revised Statutes section 33-992.01, subsection I or lose as a
defense any inaccuracy of that information.
Within ten days of the receipt of this preliminary twenty day notice if
any payment bond has been recorded in compliance with Arizona Revised
Statutes section 33-1003, the owner must provide a copy of the payment
bond including the name and address of the surety company and bonding
agent providing the payment bond to the person who has given the
preliminary twenty day notice. In the event that the owner or other
interested party fails to provide the bond information within that ten
day period, the claimant shall retain lien rights to the extent precluded
or prejudiced from asserting a claim against the bond as a result of not
timely receiving the bond information.
Dated: ___________________
____________________________
(Company name)
By: ______________________
(Signature)
_________________________
(Title)
(Acknowledgement of receipt language from Arizona Revised Statutes
section 33-992.02 shall be inserted here.)
E. If labor, professional services, materials, machinery, fixtures or
tools are furnished to a jobsite by a person who elects not to give a
preliminary twenty day notice as provided in subsection B of this section,
that person is not precluded from giving a preliminary twenty day notice
not later than twenty days after furnishing other labor, professional
services, materials, machinery, fixtures or tools to the same jobsite. The
person, however, is entitled to claim a lien only for such labor,
professional services, materials, machinery, fixtures or tools furnished
within twenty days prior to the service of the notice and at any time
thereafter.
F. The notice or notices required by this section may be given by mailing
the notice by first class mail sent with a certificate of mailing,
registered or certified mail, postage prepaid in all cases, addressed to
the person to whom notice is to be given at the person's residence or
business address. Service is complete at the time of the deposit of notice
in the mail.
G. A person required by this section to give notice to the owner, to an
original contractor, to the construction lender, if any, and to the person
with whom the claimant has contracted need give only one notice to the
owner, to the original contractor, to the construction lender, if any, and
to the person with whom the claimant has contracted with respect to all
labor, professional services, materials, machinery, fixtures or tools
furnished for the building, structure or improvement, unless the actual
estimated total price for the labor, professional services, materials,
machinery, fixtures or tools furnished or to be furnished exceeds by twenty
per cent or more the total price in any prior original or subsequent
preliminary notice or unless the labor, professional services, materials,
machinery, fixtures or tools are furnished under contracts with more than
one subcontractor, in which case notice requirements shall be met for all
additional labor, professional services, materials, machinery, fixtures or
tools.
H. If a notice contains a general description required by subsection C of
this section of the labor, professional services, materials, machinery,
fixtures or tools furnished up to the date of notice, it is not defective
because after the date the person giving notice furnishes labor,
professional services, materials, machinery, fixtures or tools that are not
within the scope of the general description, or exceed by less than twenty
per cent the estimated total price thereof.
I. Within ten days after receipt of a written request from any person or
the person's agent intending to file a preliminary twenty day notice, which
request shall identify the person, the person's address, the jobsite and
the general nature of the person's labor, professional services, materials,
machinery or tools to which the preliminary twenty day notice shall apply,
or within ten days of the receipt of a preliminary twenty day notice, the
owner or other interested party shall furnish the person a written
statement containing the following information:
1. The legal description, subdivision plat, street address or location
with respect to commonly known roads or other landmarks in the area, or any
other description of the jobsite sufficient for identification.
2. The name and address of the owner or reputed owner.
3. The name and address of the original contractor or reputed contractor.
4. The name and address of the construction lender, if any, or reputed
construction lender.
5. If any payment bond has been recorded pursuant to section 33-1003, a
copy of the bond and the name and address of the surety company and bonding
agent, if any, providing the payment bond.
J. Failure of the owner or other interested party to furnish the
information required by this section does not excuse any claimant from
timely giving a preliminary twenty day notice, but it does stop the owner
from raising as a defense any inaccuracy of the information in a
preliminary twenty day notice, provided the claimant's preliminary twenty
day notice of lien otherwise complies with the provisions of this
chapter. If the information is received by the claimant after the
claimant has given a preliminary twenty day notice and the information
contained in the preliminary twenty day notice is inaccurate, the
claimant shall, within thirty days of the receipt of this information,
give an amended preliminary twenty day notice in the manner provided in
this section. An amended preliminary twenty day notice shall be
considered as having been given at the same time as the original
preliminary twenty day notice, except that the amended preliminary twenty
day notice shall be effective only as to work performed, materials
supplied or professional services rendered twenty days prior to the date
of the amended preliminary twenty day notice or the date the original
preliminary twenty day notice was given to the owner, whichever occurs
first. If a payment bond has been recorded in compliance with
section 33-1003 and the owner or other interested party fails to furnish a copy
of the bond and the other information as required by this section, the
claimant shall retain lien rights to the extent precluded or prejudiced
from asserting a claim against the bond as a direct result of not timely
receiving a copy of the bond and the other information from the owner or
other interested party.
33-981. Lien for labor; professional services or materials used in
construction, alteration or repair of structures; preliminary twenty day
notice; exceptions
A. Except as provided in sections 33-1002 and 33-1003, every person who
labors or furnishes professional services, materials, machinery, fixtures
or tools in the construction, alteration or repair of any building, or
other structure or improvement, shall have a lien on such building,
structure or improvement for the work or labor done or professional
services, materials, machinery, fixtures or tools furnished, whether the
work was done or the articles were furnished at the instance of the owner
of the building, structure or improvement, or his agent.
B. Every contractor, subcontractor, architect, builder or other person
having charge or control of the construction, alteration or repair, either
wholly or in part, of any building, structure or improvement is the agent
of the owner for the purposes of this article, and the owner shall be
liable for the reasonable value of labor or materials furnished to his
agent.
C. A person who is required to be licensed as a contractor but who does
not hold a valid license as such contractor issued pursuant to title 32,
chapter 10 shall not have the lien rights provided for in this section.
D. A person required to give preliminary twenty day notice pursuant to
section 33-992.01 is entitled to enforce the lien rights provided for in
this section only if he has given such notice and has made proof of service
pursuant to section 33-992.02.
E. A person who furnishes professional services but who does not hold a
valid certificate of registration issued pursuant to title 32, chapter 1
shall not have the lien rights provided for in this section.
F. A person who furnishes professional services is entitled to enforce
the lien rights provided for in this section only if such person has an
agreement with the owner of the property or with an architect, an engineer
or a contractor who has an agreement with the owner of the property.
33-1003. Payment bond in lieu of lien right; bond purposes and conditions;
recording
A. Every owner of land, including any person who has a legal or
equitable interest therein, who enters a contract requiring any person to
perform labor or professional services or to furnish materials, machinery,
fixtures or tools in the construction, alteration or repair of any
building, or other structure or improvement on such land, may avoid the
lien provisions of section 33-981 pertaining to agents by requiring the
person with whom he contracts to furnish a payment bond. Upon recordation
of the payment bond together with a copy of such contract in the office of
the county recorder, in the county in which the land is located, no lien
shall thereafter be allowed or recorded by the person claiming a lien
against the land on which the labor or professional services are performed
or the materials, machinery, fixtures or tools furnished, as provided in
this article, except by the person who contracts, in writing, directly with
the owner.
B. A payment bond furnished pursuant to subsection A of this
section shall be in the amount and form prescribed by title 34, chapter 2,
article 2. The contract recorded with the bond shall contain a legal
description of the land on which the work is being or is to be
performed.
C. The bond provided for in this section shall be executed solely by one
or more surety companies holding a certificate of authority to transact
surety business in this state issued by the director of the department of
insurance pursuant to title 20, chapter 2, article 1 and shall be
accompanied by a power of attorney disclosing the authority of the person
executing the same on behalf of the surety. Notwithstanding any other
statute, the bond shall not be executed by an individual surety or
sureties, even if the requirements of section 7-101 are satisfied.
D. The county recorder of the county in which the bond and contract are
recorded shall index the bond and contract under the index classification
in which mechanics' and materialmen's liens are recorded.
33-1002. Definitions; inapplicability of certain liens to owner-occupied
dwelling; waiver void
A. In this section:
1. "Dwelling" means real property upon which there has been constructed
or is to be constructed any building, structure or improvement which is
designed for either single one-family or single two-family residential
purposes or activities related thereto, including an apartment in a
horizontal property regime or other condominium.
2. "Owner-occupant" means a natural person who:
(a) Prior to commencement of the construction, alteration, repair or
improvement holds legal or equitable title to the dwelling by a deed or
contract for the conveyance of real property recorded with the county
recorder of the county in which the dwelling is located, and
(b) Resides or intends to reside in the dwelling at least thirty days
during the twelve-month period immediately following completion of the
construction, alteration, repair or improvement and does not intend to sell
or lease the dwelling to others. Residence in the dwelling or intent to
reside in the dwelling may be evidenced by the following or other physical
acts:
(i) The placing of his or her personal belongings and furniture in the
dwelling, and
(ii) Occupancy either by the person or members of his or her family. A
single act shall not establish a person as an owner-occupant if such person
permits exclusive occupancy by other than members of his or her family for
other than temporary purposes thereby negating his or her intent to reside
in the dwelling primarily for use as his or her home.
B. No lien provided for in this article shall be allowed or recorded by
the person claiming a lien against the dwelling of a person who became an
owner-occupant prior to the construction, alteration, repair or
improvement, except by a person having executed in writing a contract
directly with the owner-occupant.
C. Any provision of an agreement made or entered into by an
owner-occupant which waives the provisions of this section is void.
