LIEN:
-Name of owner or reputed owner (or statement that owner’s name is unknown to claimant);
-Name of claimant;
-Name of party supplying materials or labor to the claimant (apparently this is directed to subcontractors);
-Name of party to whom supplied;
-Name of contractor (or statement that contractor’s name is unknown to claimant);
-Description of property sufficient for identification. Note that an overly broad description will not invalidate an otherwise valid lien. [Sure-Shock Electric, Inc. v. Diamond Lofts Venture, LLC, — P.3d —-, 2014 WL 4242399 (Ct.App.Div.4, 2014)]
-Amount due to claimant at the time of filing the notice. An excessive lien will be void. Note, however, that interest is recoverable at the agreed rate, or if there is no agreed rate, than at 12% per annum, and note that including interest in the lien amount does not necessarily render the lien excessive, especially if interest is provided for in the claimant’s contract [Honnen Equipment Co., Inc. v. Never Summer Backhoe Service, Inc., 261 P.3d 507 (Colo.App.,2011)]. NOTE that the direct contractor’s lien is limited to the amount owed ON THE DIRECT CONTRACT after all other liens have been satisfied. Furthermore, where the direct contract is not filed, subs and suppliers (but not the general contractor) will have a lien for the value of their labor or materials; it is not limited to the contract balance. In addition, if the claimant files an excessive lien in light of the information available to the claimant at the time he or she files the lien, the entire lien will be invalid. [Byerly v. Bank of Colorado, — P.3d —-, 2013 WL 979373 (Colo.App., 2013)]
-Verified; 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. While the case law does not say with certainty whether the claimant’s attorney may sign the notice, it appears from the statutory language that it would be acceptable. If the attorney or some other person is signing the affidavit on behalf of the claimant, it is recommended that the verification include language so reflecting that the affiant is signing on behalf of the claimant. [38-22-109; 38-22-102; Schor at §7.04[C]]
NOTE that where the claimant supplies materials or labor to more than one structure being built and constructed by the same person, under the same contract, the claimant may apportion the claim among the structures, but if the costs cannot readily and definitely be apportioned among the structures, the claimant may treat the improvements as one structure or improvement, and file one lien covering the entire project. Though it is not recommended, a claimant is allowed to bring its entire claim against fewer than all of the properties in a multi-property project, as long as the debtor holds the sole interest in all of the properties benefiting under the contract. In that case, however, the decision to include only a portion of the properties may affect the extent to which the claimant can recover from the remaining properties. [38-22-103; Compass Bank v. Brickman Group, Ltd., 107 P.3d 955 (2005)]
-REMEMBER to attach affidavit of service of the notice of intent to file lien, when filing the lien itself. [Schor at §7.04[C]]
PAYMENT BOND:
(For claims less than $2,000; no notice is required for larger claims.) Affidavit stating that claimant furnished labor or materials used or performed in the prosecution of the work on such project, that claimant is unpaid, and the amount of the claim. Supporting documents should be attached. If the affidavit is uncontroverted for 45 days, the surety is required to pay the claimant directly. Neither the statute nor the case law indicates whether anyone other than the claimant can sign the affidavit. [38-22-130]
