2007 Issue

www.utahengineerscouncil.org 16 Adam T. Mow is an architect and attorney with the Salt Lake City law firm of Babcock Scott & Babcock. He can be reached at adam@babcockscott.com or 801-531-7000. mencing a lawsuit to foreclose the lien. A lien claimant must file with the recorder of the county in which the project is located a written notice to hold and claim a lien. A notice of lien must include (1) the project owner’s name or record owner’s name, (2) the name of the person who employed the claimant or to whom the claimant furnished labor, equipment, ser- vice, equipment, or materials, (3) the first and last dates of work, (4) a property description sufficient for identification, (5) the claimant’s name, address, and telephone number, (6) the amount of the claim, and (7) the claimant’s signature. Substantial compliance with these requirements is sufficient to hold and claim a lien. Notices of lien on residential projects must also include the statement specified in section 38-11-107 of the Utah Code. Additionally, the lien claimant must send by certified mail a copy of the lien to the owner of the property within thirty days of recording the lien. A lawsuit to enforce the lien must be filed within 180 days following the day on which the claimant filed the notice of lien with the county recorder. Unfortunately, the Utah legislature continues to modify the mechanic’s lien laws on a yearly basis, with most thought given only to contractors, subcontractors, and suppliers. Consequently, the law has become somewhat ambiguous as to lien filing for engineers and other design professionals. Until the courts or the legislature correct these ambiguities, it is highly recommended that lien claimants consult with an attorney before attempting to file a lien. Other Considerations Aside from the security interest a mechanic’s lien provides, lien claimants who prevail on their lien foreclosure cause of action are entitled to an award of their reasonable attorney fees and costs of court, in addition to any interest on the principal amount owed. The award of reasonable attorney fees mitigates the high cost of litigation to foreclose a mechanic’s lien. One of the potential disadvantages of filing a mechanic’s lien and seeking to foreclose on that lien is how it will affect the rela- tionship between the contracted parties. Regrettably, the reaction resulting from a lien filing is unpredictable. The lien filing may polarize interests and cause tension on the project. An engineer may be better off in a tense situation, however, than lose lien rights if a lien is not filed on time. Moreover, although tension may result, the nonpaying party otherwise may have no incentive to satisfy an open account. Additionally, an engineer should carefully assess its own potential fault before the lien is filed. An engineer who files a lien may trigger a malpractice or other claim from the party with whom it contracted if the engineer was potentially negligent or breached its contract. Conclusion Mechanic’s liens are powerful tools for the collection of outstand- ing debt as encumbrances on real property. When used properly, the recorded mechanic’s lien offers unmatched protection for the lien claimant. Engineers, like others who improve real property, have mechanic’s lien rights under Utah law. Because these rights are strictly limited by time and other filing requirements, engineers must be alert to the expiration of those rights and are advised to seek legal guidance for the filing of a mechanic’s lien. MECHANIC’S LIEN — continued