So Who Says You Can’t Get Paid?

Mechanic’s Lien Pre-Lien Notices in Colorado, New Mexico and Wyoming

Mechanic’s liens are highly effective collection tools for unpaid contractors, subcontractors, designers and suppliers available on privately-owned projects. In Colorado, New Mexico and Wyoming, mechanic’s liens are available only if the conditions of the state’s statues are first met. One of those conditions is a pre-lien or preliminary lien notice.

Mechanic’s liens are available to all persons supplying labor, laborers, materials, machinery, tools, or equipment, to be used in the construction, alteration or repair of any structure, or to make an improvement upon the land itself, including design services. For lien claimants in Colorado, New Mexico and Wyoming, the first condition may be a pre-lien or preliminary lien notice. Colorado does not have a mandatory pre-lien notice requirement, but New Mexico and Wyoming do.

Colorado law, §38-22-102, allows for a preliminary notice that is not mandatory. The unpaid supplier, contractor or designer may give a written notice to the owner or the construction superintendent, agent, architect, or to the financing institution or other person disbursing construction funds. The written notice states “in general terms the kind of labor, laborers, or materials and the name of the person to or for whom the same was or is to be done, or performed, or both, and the estimated or agreed amount in value,” and is sent to the owner and “a principal contractor, or any person acting by authority of the owner.” If a preliminary notice is sent, the owner must make sure there will be sufficient funds available to assure payment to the claimant sending the notice – powerful stuff!

New Mexico law, §48-2-2.1, requires persons claiming a right to lien to send a notice of right to lien to the owner or to the original contractor within 60 days of furnishing work or materials. This notice is not required for claims of $5,000 or less or for residences of four units or less. If a lien claimant elects not to give the notice within 60 days of the claimant’s first work or supplying materials, then the claimant can look back only 30 days prior to the date notice is given.

Wyoming law is the most restrictive of the three states. Wyoming made substantial changes to its mechanic’s lien statutes that went into effect on July 1, 2011. The claimant shall send written notice to the record owner or agent and to the contractor of the right to assert a lien against the property for which services or materials are provided. The notice must be sent within 30 days after first providing services or materials to the construction project. The preliminary notice is required and, if it is not sent within the time specified, the claimant shall be barred from asserting a lien. The preliminary notice must be sent for all Wyoming projects. Wyoming provides a sample preliminary notice form and lien waiver under W.S. §29-10-101.

So, before you start that next construction project, make sure you know your time deadline to serve your pre-lien or preliminary lien notice. Sending the notice will give you one more tool to assure you get paid!

By Jean Arnold, Esq. Arnold & Arnold, LLP