When Does a Notice of Intent to File a Mechanics Lien Need to Be Filed in Colorado?
Full Question:
Answer:
The following is a portion of CO statute 32-22-109:
" The filing of said notice shall
serve as notice that said person may thereafter file a lien statement and
shall extend the time for filing of the mechanic's lien statement to four
months after completion of the structure or other improvement or six
months after the date of filing of said notice, whichever occurs first.
Unless sooner terminated as provided in subsection (11) of this section,
the notice provided for in this subsection (10) shall automatically
terminate six months after the date said notice is filed. In the event
that said structure or other improvements have not been completed prior
to the termination of said notice, a claimant, prior to said termination
date, may file a new or amended notice which shall remain effective for
an additional period of six months after the date of filing or four
months after the date of completion of said structure or other
improvements, whichever occurs first."
Generally, the above means that the person claiming a lien has either six months after the filing of the notice of intent or four months after the completion of work in order to file a lien. Under 38-23-110, action to foreclose on (collect on) the lien must be taken within six months after the last work was performed, work was completed, or the last materials were supplied by anyone on the project.
Please see the following CO statutes:
38-22-110. Action commenced within six months.
No lien claimed by virtue of this article, as against the owner of the
property or as against one primarily liable for the debt upon which the
lien is based or as against anyone who is neither the owner of the property
nor one primarily liable for such debt, shall hold the property longer than
six months after the last work or labor is performed, or laborers or
materials are furnished, or after the completion of the building,
structure, or other improvement, or the completion of the alteration,
addition to, or repair thereof, as prescribed in section 38-22-109, unless
an action has been commenced within that time to enforce the same, and
unless also a notice stating that such action has been commenced is filed
for record within that time in the office of the county clerk and recorder
of the county in which said property is situate. Where two or more liens
are claimed of record against the same property, the commencement of any
action and the filing of the notice of the commencement of such action
within that time by any one or more of such lien claimants in which action
all the lien claimants as appear of record are made parties, either
plaintiff or defendant shall be sufficient.
38-22-109. Lien statement.
(1) Any person wishing to use the provisions of this article shall file
for record, in the office of the county clerk and recorder of the county
wherein the property, or the principal part thereof, to be affected by the
lien is situated, a statement containing:
(a) The name of the owner or reputed owner of such property, or in case
such name is not known to him, a statement to that effect;
(b) The name of the person claiming the lien, the name of the person who
furnished the laborers or materials or performed the labor for which the
lien is claimed, and the name of the contractor when the lien is claimed by
a subcontractor or by the assignee of a subcontractor, or, in case the name
of such contractor is not known to a lien claimant, a statement to that
effect;
(c) A description of the property to be charged with the lien, sufficient
to identify the same; and
(d) A statement of the amount due or owing such claimant.
(2) Such statement shall be signed and sworn to by the party, or by one
of the parties, claiming such lien, or by some other person in his or
their behalf, to the best knowledge, information, and belief of the
affiant; and the signature of any such affiant to any such verification
shall be a sufficient signing of the statement.
(3) In order to preserve any lien for work performed or laborers or
materials furnished, there must be a notice of intent to file a lien
statement served upon the owner or reputed owner of the property or the
owner's agent and the principal or prime contractor or his or her agent at
least ten days before the time of filing the lien statement with the county
clerk and recorder. Such notice of intent shall be served by personal
service or by registered or certified mail, return receipt requested,
addressed to the last known address of such persons, and an affidavit of
such service or mailing at least ten days before filing of the lien
statement with the county clerk and recorder shall be filed for record with
said statement and shall constitute proof of such service.
(4) All such lien statements claimed for labor and work by the day or
piece, but without furnishing laborers or materials therefor, must be filed
for record after the last labor for which the lien claimed has been
performed and at any time before the expiration of two months next after
the completion of the building, structure, or other improvement.
(5) Except as provided in subsections (10) and (11) of this section, the
lien statements of all other lien claimants must be filed for record at any
time before the expiration of four months after the day on which the last
labor is performed or the last laborers or materials are furnished by such
lien claimant.
(6) New or amended statements may be filed within the periods provided in
this section for the purpose of curing any mistake or for the purpose of
more fully complying with the provisions of this article.
(7) No trivial imperfection in or omission from the said work or in the
construction of any building, improvement, or structure, or of the
alteration, addition to, or repair thereof, shall be deemed a lack of
completion, nor shall such imperfection or omission prevent the filing of
any lien statement or filing of or giving notice, nor postpone the running
of any time limit within which any lien statement shall be filed for record
or served upon the owner or reputed owner of the property or such owner's
agent and the principal or prime contractor or his or her agent, or within
which any notice shall be given. For the purposes of this section,
abandonment of all labor, work, services, and furnishing of laborers or
materials under any unfinished contract or upon any unfinished building,
improvement, or structure, or the alteration, addition to, or repair
thereof, shall be deemed equivalent to a completion thereof. For the
purposes of this section, "abandonment" means discontinuance of all labor,
work, services, and furnishing of laborers or materials for a three-month
period.
(8) Subject to the prior termination of the lien under the provisions of
section 38-22-110, no lien claimed by virtue of this article shall hold the
property, or remain effective longer than one year from the filing of such
lien, unless within thirty days after each annual anniversary of the filing
of said lien statement there is filed in the office of the county clerk and
recorder of the county wherein the property is located an affidavit by the
person or one of the persons claiming the lien, or by some person in his
behalf, stating that the improvements on said property have not been
completed.
(9) Upon the filing of the notice required and the commencement of an
action, within the time and in the manner required by said section
38-22-110, no annual affidavit need be filed thereafter.
(10) Within the applicable time period provided in subsections (4) and
(5) of this section and subject to the provisions of section 38-22-125,
any lien claimant granted a lien pursuant to section 38-22-101 may file
with the county clerk and recorder of the county in which the real
property is situated a notice stating the legal description or address or
such other description as will identify the real property; the name of
the person with whom he has contracted; and the claimant's name,
address, and telephone number. One such notice may be filed upon more
than one property, and, in the case of a subdivision, one notice may
describe only the part thereof upon which the claimant has or will obtain
a lien pursuant to section 38-22-101. The filing of said notice shall
serve as notice that said person may thereafter file a lien statement and
shall extend the time for filing of the mechanic's lien statement to four
months after completion of the structure or other improvement or six
months after the date of filing of said notice, whichever occurs first.
Unless sooner terminated as provided in subsection (11) of this section,
the notice provided for in this subsection (10) shall automatically
terminate six months after the date said notice is filed. In the event
that said structure or other improvements have not been completed prior
to the termination of said notice, a claimant, prior to said termination
date, may file a new or amended notice which shall remain effective for
an additional period of six months after the date of filing or four
months after the date of completion of said structure or other
improvements, whichever occurs first.
(11) Upon termination of agreement to provide labor, laborers, or
materials, the owner, or someone in such owner's behalf, may demand from
the person filing said notice a termination of said notice, which
termination shall identify the properties upon which labor has not been
performed or to which laborers or materials have not been furnished and as
to which said notice is terminated. Upon the filing of said termination in
the office of the county clerk and recorder in the county wherein said
property is situated, such notice no longer constitutes notice as provided
in subsection (10) of this section as to the property described in said
termination.
(12) The notices provided for in subsections (10) and (11) of this
section shall be recorded in the office of the county clerk and recorder
of the county wherein the real property is located.