Every contractor, subcontractor or materialman performing any work on or furnishing any materials has lien rights. A subcontractor is now defined as a person (other than a contractor) performing work for a contractor or subcontractor under contract, and a materialman is defined as a person (other than a contractor) who furnishes material to, but does not perform work for, an owner, a contractor, or a subcontractor under contract. Architects, engineers and surveyors are considered contractors and do have lien rights. Material includes equipment and machinery. Suppliers to suppliers do not have lien rights. [29-1-201; American Bldgs. Co. v. Wheelers Stores, 585 P.2d 845 (1978)]
1. Who May Have A Lien?
Private:
Public:
Under contracts with the Department of Administration and Information, it is not clear whether second-tier subs or suppliers to suppliers will be covered. On contracts with all other agencies, however, furnishers of labor or materials, which were used in the execution of the contract, will be covered. This latter statute is apparently not limited to those supplying a general or sub, and a supplier to a materialman to a sub will be covered. [9-2-1016(b)(xviii), 16-6-112; D & L Building, Inc. v. State for Use and Benefit of Maltby Tank & Barge, Inc., 747 P.2d 517 (1987), DeLozier Bros., Inc. v. Fremont County School Dist. No. 14, 747 P.2d 515 (1987)]
2. What Is The Lien Against?
Private:
Building or improvement and land on which structure is situated, to extent of entire lot or 1 acre, or more if improvements cover more property. If work is done for a TENANT, owner’s interest is covered by lien where owner agrees to pay for improvement or where owner specifically authorizes improvements. NOTE, HOWEVER, that according to case law, “specifically authorizing” improvements means more than a landlord’s knowledge, acquiescence, or permission. The court determined it requires a showing of an agency relationship between the landlord and the tenant before a lien may attach to the landlord’s real property. [29-2-101, 29-2-105; Redco Const. v. Profile Properties, LLC, 271 P.3d 408 (Wyo. 2012)]]
Public:
Contractor’s payment bond. [16-6-112]
3. Who Must Give The Preliminary Notice?
Private:
All contractors, subcontractors and material suppliers. [29-2-112]
Public:
All subs and material suppliers, where total amount of the prime contractor’s contract is $50,000 or more. [16-6-121; Schor at §51.02[D]] (Apparently the notice need only be given where the general contractor posts a notice at the jobsite citing the relevant statute and informing the subs and suppliers of the preliminary notice requirement, and that failure to give the notice waives their right to protection under the bond or guaranty, but it is advisable to give the notice in all cases.) Although there is no statutory requirement, the Department of Administration and Information apparently requires in its contracts that the notices be given. [Schor at §51.02[D]
4. To Whom Is The Preliminary Notice Given?
Private:
BY THE PRIME CONTRACTOR:
To the record owner. [29-2-112] Note that the contractor is also required to provide to subs and suppliers the name and address of the record owner and the owner’s agent, if applicable, and a legal description of the site of the project. [29-2-113]
BY SUBS AND SUPPLIERS:
To the record owner with a copy to the prime contractor for which the subs and suppliers are providing services or materials. [29-2-112]
Public:
To the prime contractor. [16-6-121]
5. When Must Preliminary Notice Be Given?
Private:
BY THE PRIME CONTRACTOR:
To the owner, prior to receiving any payment, including advances. To subs and suppliers, at the time of contracting with them. NOTE that a notice is deemed to have been sent at the time it is deposited in the mail or delivered by any other means, and for an electronic record, at the time of sending. [29-2-112, 29-2-113; 29-1-201]
BY SUBS AND SUPPLIERS:
Within 30 days after first providing services or materials to the project. NOTE that a notice is deemed to have been sent at the time it is deposited in the mail or delivered by any other means, and for an electronic record, at the time of sending. [29-2-112; 29-1-201]
NOTE that if more than 180 days elapse between work or deliveries by the claimant, the later work or deliveries are considered part of a separate contract, and the claimant must start anew giving notices pertaining to this later work or deliveries. [29-1-403]
Public:
Notice must be mailed within 60 days after first furnishing services or material. [16-6-121]
6. Contents of Preliminary Notice.
Private:
BY THE PRIME CONTRACTOR:
Notice to the subs and suppliers must contain the name and address of the record owner and the owner’s agent, if applicable, and a legal description of the site of the project. [29-2-113]
BY SUBS AND SUPPLIERS:
Notice of the claimant’s right to assert a lien against the property if the claimant is not paid, and of the right of the owner or contractor to obtain a lien waiver upon payment for services or materials. [29-2-112, 29-10-101]
Public:
-Statement that it is a notice of a right to protection under the bond or guaranty;
-Signed by claimant;
-Claimant’s name, address, phone number and name of a contact person;
-Name and address of claimant’s vendor; and
-Type or description of materials or services furnished. [16-6-121]
7. How Must Preliminary Notice Be Given?
Private:
ALL CLAIMANTS:
By certified mail, return receipt requested, or other mail delivery requiring a receipt for delivery; or by commercial carrier that requests and maintains a receipt for delivery; or by electronic record (as set forth in the Uniform Electronic Transactions Act) if the sender and recipient have previously communicated by electronic means. First class mail is also permitted, but it is recommended to use a method that includes some proof of delivery. [29-2-112, 29-1-201]
Public:
Certified mail, or delivered to and receipted by prime contractor or its agent. Notice is effective upon mailing. [16-6-121]
8. Who Must Give Interim Notice?
Private:
All claimants. [29-2-107]
Public:
An interim notice is not required.
9. Contents of Interim Notice.
Private:
Please contact Levy von Beck & Associates for information.
Public:
Not applicable.
10. When Must Interim Notice Be Given?
Private:
Notice must be sent at least twenty days before filing lien. NOTE that a notice is deemed to have been sent at the time it is deposited in the mail or delivered by any other means, and for an electronic record, at the time of sending. [29-2-107, 29-10-102]
Public:
Not applicable.
11. Who Must Give Final Notice?
Private:
All claimants. [29-2-106, 29-1-301]
Public:
All claimants. [16-6-113]
12. To Whom Is Final Notice Given?
Private:
-County clerk
-Owner. [29-1-301]
Public:
Contracting agency or public body (i.e., obligee named in the bond). [16-6-113]
13. When Is Final Notice Given?
Private:
TO THE COUNTY CLERK:
By The General Contractor: Filed within 150 days of the EARLIER of (1) the last day when work was performed or materials furnished under contract, or (2) the date of substantial completion of the project on which the work was performed materials were furnished under contract.
By Everyone Else: Filed within 120 days of the EARLIER of (1) the last day when work was performed or materials furnished under contract, (2) the date of substantial completion of the project on which the work was performed materials were furnished under contract, or (3) for subcontractors, the last day the claimant performed work at the direction of the contractor or other person authorized to provide direction. NOTE that if the owner files and sends to claimants a copy of the Notice of Substantial Completion (form is not attached), then the date of filing will be presumed to be the date of substantial completion. [29-2-106]
TO THE OWNER:
The notice is to be sent within 30 days after the lien statement is filed. NOTE that a notice is deemed to have been sent at the time it is deposited in the mail or delivered by any other means, and for an electronic record, at the time of sending. Note also that failure to send this notice does not affect the validity of the lien, however it is strongly recommended that the notice be sent. [29-1-312; 29-1-201]Enter Text Here.
Public:
At the same time the claimant begins an action against the bond. [16-6-113]
14. How Is Final Notice Given?
Private:
COUNTY CLERK:
Filed.
OWNER:
By certified mail, return receipt requested, or other mail delivery requiring a receipt for delivery; or by commercial carrier that requests and maintains a receipt for delivery; or by electronic record (as set forth in the Uniform Electronic Transactions Act) if the sender and recipient have previously communicated by electronic means. First class mail is also permitted, but it is recommended to use a method that includes some proof of delivery. [29-2-103, 29-1-201]
Public:
No specific provision; certified and regular mail recommended. [16-6-113]
15. Contents of Final Notice
Private:
Please contact Levy von Beck & Associates for information.
Although not recommended, the court has held that a lien may still be valid even though it contains inadvertent inaccuracies or omissions that are not prejudicial. [KM Upstream, LLC v. Elkhorn Const., Inc.,
278 P.3d 711, 2012 WY 79 (Wy. 2012)]
Public:
-Inform obligee of beginning of action
-Names of parties
-Description of guaranty or bond
-Amount of claim
-Nature of claim. [16-6-113]
16. Time to Start Suit / Foreclose?
Private:
Within 180 days after filing lien statement. [29-2-109] Note that holders of prior perfected liens are entitled to notice in suits to foreclose the lien, though failure to give the notice does not make the foreclosure invalid. [29-1-404]
Public:
For all contracts other than those with the Department of Administration and Information, suit must be brought within 1 year after date of first publication of notice of final payment of the contract. Also, note that judgment cannot be entered until 30 days after final notice was given. For contracts with the Department of Administration and Information, there is no 1-year limit for bringing suit, unless such a time is specified in the contract itself. It is advisable, therefore, to obtain a copy of the bond. [16-6-115, 16-6-113; Schor at §51.02[D]]
