Colorado Notice of Intent to File a Lien Statement

Introduction

Key Things to Know

1. 1

   Colorado's early notice is the notice of intent to file a lien statement in section 38-22-109(3). It is served privately on two parties, it is not recorded, and the only thing that reaches the county clerk and recorder is the affidavit proving it was served.

2. 2

   Section 38-22-109(3) names no exempt class. It frames the notice as what is required in order to preserve any lien for work performed or laborers or materials furnished, so a laborer, a yard, a subcontractor and a design professional all sit inside it.

3. 3

   Both recipients are mandatory and neither is a bank: the owner or reputed owner of the property or the owner's agent, and the principal or prime contractor or his or her agent. Colorado does not list a construction lender as a recipient of this notice.

4. 4

   Two service methods, and the subsection lists no others: personal service, or registered or certified mail with return receipt requested, addressed to the last-known address of each person served.

5. 5

   Colorado names the proof and the place to put it. An affidavit of the service or mailing, showing it happened at least ten days before the filing, is filed for record together with the statement, and the statute says that affidavit shall constitute proof of such service.

6. 6

   No form exists. Section 38-22-109(3) prescribes recipients, methods, the ten day gap and the affidavit, and prescribes no wording, no warning paragraph and no content list, which puts the burden on the drafter to identify the property, the parties and the amount clearly.

7. 7

   Section 38-22-126 is the part most claimants miss. Subsection (3) obliges whoever ordered from you to furnish, on demand, the names, addresses and telephone numbers of the owner or reputed owner, the principal contractor and the disburser, plus a legal description or address of the land. Subsection (4) then lets you notify the disburser and get paid out of undisbursed funds.

Colorado Requirements for Preliminary Notice

• No Exempt Class Under Section 38-22-109(3)

  The subsection is drafted as a condition, not as a duty on one trade: 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. There is no carve-out for a laborer, for a design professional, or for a claimant who contracted directly with the owner.

• Owner and Prime Contractor, and No Lender

  Service must reach the owner or reputed owner of the property or the owner's agent AND the principal or prime contractor or his or her agent. Colorado does not name a construction lender as a recipient of this notice. The route to a lender is the separate notice to the disburser in section 38-22-126(4).

• Personal Service, or Registered or Certified Mail

  Section 38-22-109(3) names two methods and no others: personal service, or registered or certified mail, return receipt requested, addressed to the last-known address of each person served. Ordinary first class mail, email and fax are not among them.

• Ten Clear Days, Counted Backward

  The notice must be served at least ten days before the time of filing the lien statement with the county clerk and recorder. Colorado's clock runs backward from the claimant's own filing rather than forward from an event on the job, so the ten days have to be built into the plan rather than discovered at the end.

• The Affidavit Is the Statutory Proof, and It Goes on Record

  An affidavit of the service or mailing, showing it happened at least ten days before the filing, is filed for record with the statement, and the statute says that affidavit shall constitute proof of such service. There is no acknowledgment-of-receipt route and nothing for the recipient to sign and return.

• No Prescribed Form and No Prescribed Warning

  Section 38-22-109(3) prescribes recipients, methods, the ten day gap and the affidavit, and nothing about contents. Colorado supplies no form and no boldface owner warning for this notice. Section 38-22-109(1) does list what the statement the notice announces must contain: the owner or reputed owner's name or a statement that it is unknown; the claimant's name, the name of the person who furnished the laborers or materials or performed the labor, and the contractor's name where a subcontractor claims; a description of the property sufficient to identify it; and a statement of the amount due or owing.

• Your Customer Must Hand Over the Owner and Disburser Details

  Section 38-22-126(3) makes it the duty of any person ordering or contracting for labor, services, machinery, tools, equipment, laborers or materials, on demand of the person they are ordering from, to furnish the names, addresses and telephone numbers of the owner or reputed owner of the land, the principal contractor if any and the disburser if any, plus a legal description or the address of the land. Section 38-22-105.5 separately has the residential permit authority mail the owner an IMPORTANT NOTICE TO OWNERS naming the contractor, except for new residential construction or residential property with more than four living units.

• The Notice to the Disburser, and Direct Payment

  Under section 38-22-126 a disburser includes a lender making progress disbursements, a person receiving funds to disburse as work progresses, and an owner paying a contractor in progress payments. Any claimant entitled to a lien may give it a written notice stating the property, the claimant's name, address and telephone number, the person the claimant contracted with and a general statement of the contract, served by certified mail, personal delivery, or leaving a copy at the residence or place of business with some person in charge. The disburser must then ascertain what is due on any disbursement date and pay it directly out of undisbursed funds, and is liable to the claimant for failing, to the extent of the claimant's loss.