Colorado § 38-22-110 - Action commenced within six months.

§ 38-22-110. Action commenced within six months.

No lien claimed by virtue of this article, as against the owner of the property or as against one primarily liable for the debt upon which the lien is based or as against anyone who is neither the owner of the property nor one primarily liable for such debt, shall hold the property longer than six months after the last work or labor is performed, or laborers or materials are furnished, or after the completion of the building, structure, or other improvement, or the completion of the alteration, addition to, or repair thereof, as prescribed in section 38-22-109, unless an action has been commenced within that time to enforce the same, and unless also a notice stating that such action has been commenced is filed for record within that time in the office of the county clerk and recorder of the county in which said property is situate. Where two or more liens are claimed of record against the same property, the commencement of any action and the filing of the notice of the commencement of such action within that time by any one or more of such lien claimants in which action all the lien claimants as appear of record are made parties, either plaintiff or defendant shall be sufficient.

Source: L. 1899: p. 271, § 10. R.S. 08: § 4034. L. 15: p. 333, § 2. C.L. § 6451. CSA: C. 101, § 24. L. 37: p. 481, § 4. CRS 53: § 86-3-10. C.R.S. 1963: § 86-3-10. L. 2000: Entire section amended, p. 210, § 9, effective August 2.

Cross references: For filing notice of lis pendens, see C.R.C.P. 105(f).

ANNOTATION

I. General Consideration.

II. Six Months Limitation.

III. Notice of Lis Pendens.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Curative Statutes of Colorado Respecting Titles to Real Estate", see 16 Dicta 71 (1940). For article, "Curative Statutes of Colorado Respecting Titles to Real Estate", see 26 Dicta 321 (1949).

No presumption of performance necessary to lien's acquisition. No act necessary to the acquisition of a lien can be presumed to have been performed in the absence of proof that it was performed. Kalamath Inv. Co. v. Asphalt Paving Co., 153 Colo. 109, 384 P.2d 938 (1963).

Lien claimant has burden of proving its right to a lien on property. Kalamath Inv. Co. v. Asphalt Paving Co., 153 Colo. 109, 384 P.2d 938 (1963).

This section and § 38-22-109 must be construed together. Pacific Lumber Co. v. Lieberman, 76 Colo. 332, 231 P. 673 (1924).

Applied in Weiner v. Rumble, 11 Colo. 607, 19 P. 760 (1888); Small v. Foley, 8 Colo. App. 435, 47 P. 64 (1896); Bitter v. Mouat Lumber & Inv. Co., 10 Colo. App. 307, 51 P. 519 (1897); Burleigh Bldg. Co. v. Merchant Brick & Bldg. Co., 13 Colo. App. 455, 59 P. 83 (1899); Ferguson v. Christensen, 59 Colo. 42, 147 P. 352 (1915); Hawkins v. Grisham, 69 Colo. 156, 170 P. 187 (1918); Laverents v. Craig, 74 Colo. 297, 225 P. 250 (1923); Campbell v. Graham, 144 Colo. 532, 357 P.2d 366 (1960); Nat'l Union Fire Ins. Co. v. Denver Brick & Pipe Co., 162 Colo. 519, 427 P.2d 861 (1967); First Com. Corp. v. First Nat'l Bancorporation, Inc., 572 F. Supp. 1430 (D. Colo. 1983).

II. SIX MONTHS LIMITATION.

Time when suit should be brought procedural matter. The time when a suit should be brought is a matter of procedure and within the control of the general assembly so long as reasonable time was provided. Orman v. Crystal River Ry., 5 Colo. App. 493, 39 P. 434 (1895); Chicago Lumber Co. v. Dillon, 13 Colo. App. 196, 56 P. 989 (1899).

Applicability of section. This statute of limitations applies to the joinder of additional parties by amendment. McIntire & Quiros of Colo., Inc. v. Westinghouse Credit Corp., 40 Colo. App. 398, 576 P.2d 1026 (1978); Trustees of Mtg. Trust of Am. v. District Court, 621 P.2d 310 (Colo. 1980).

Materialman may begin his suit at any time within six months after the last material furnished by him or within six months after the completion of the building. Pac. Lumber Co. v. Lieberman, 76 Colo. 332, 231 P. 673 (1924); Meurer, Serafini & Meurer, Inc. v. Skiland Corp., 38 Colo. App. 61, 551 P.2d 1089 (1976).

Right to enforce lien is lost by the failure to commence suit within the time limited. Orman v. Crystal River Ry., 5 Colo. App. 493, 39 P. 434 (1895); Johnston v. Bennett, 6 Colo. App. 362, 40 P. 847 (1895).

A mechanics' lien is extinguished upon the claimant's failure to initiate an action within the statutory six-month period. Where there is no notice of commencement of the action filed, there can be no cloud upon the plaintiffs' title. Schlosky v. Mobile Premix Concrete, Inc., 656 P.2d 1321 (Colo. App. 1982).

Strict limitation makes titles more safe and marketable. Strictly limiting the time during which property is encumbered renders titles to real property and to interests and estates therein more safe, secure and marketable. King v. W.R. Hall Transp. & Storage Co., 641 P.2d 916 (Colo. 1982).

Only one claimant required to begin action within limitation period. This section and § 38-22-111 read together require only that one of the lien claimants begins the action within six months of the completion of the work, and that the filing of such action by one lien claimant is sufficient to meet the six-month time limitation as to all lien claimants, as appear of record, who are made parties either plaintiff or defendant within the six-month limitation period. Bulow v. Ward Terry & Co., 155 Colo. 560, 396 P.2d 232 (1964).

Intervention order relates back to filing date of motion. Order of intervention properly relates back to date of filing of motion to intervene in a mechanic's lien foreclosure action. Franklin Contract Sales Co. v. First Nat'l Bank, 200 Colo. 370, 615 P.2d 684 (1980).

Trial court lacks jurisdiction over intervention granted after limitation expired. Intervention by a mechanic's lien claimant in a pending foreclosure action sought and granted after expiration of the six-month period prescribed by this section does not vest the trial court with jurisdiction to decree foreclosure of that lien and to assign it priority over a deed of trust recorded after the work for which such lien was asserted, had commenced. Cox v. Bankers Trust Co., 39 Colo. App. 303, 570 P.2d 6 (1977).

Late joinder not allowed. Joinder of one lien claimant after the statutory period in an action initiated by another claimant within the time limit is not allowed under this section, nor is tardy joinder of an additional defendant allowed in an action timely brought. King v. W.R. Hall Transp. & Storage Co., 641 P.2d 916 (Colo. 1982).

Six-month period may not be tolled. The mechanics' lien statute contains no specific provisions allowing the six-month period to be tolled. King v. W.R. Hall Transp. & Storage Co., 641 P.2d 916 (Colo. 1982).

Strict application of the six-month limit is based on the principle that extending the lifetime of a perfected lien would vest a lien creditor with greater rights than were granted by the statutory provision creating the right. King v. W.R. Hall Transp. & Storage Co., 641 P.2d 916 (Colo. 1982).

Six-month period may be tolled. 11 U.S.C. § 108 in the federal bankruptcy code tolls the running of the period until 30 days after relief from stay is granted or the underlying bankruptcy case is terminated. In re Cantrup, 38 B.R. 148 (Bankr. D. Colo. 1984); In re Nash Phillips/Copus, Inc., 78 B.R. 798 (Bankr. W.D. Tex. 1987).

Where complaint amended after statutory period. Complaint against the owner and principal contractor within the statutory six-month period, followed by an amendment joining a mortgage company and a plumbing and heating company after the expiration of the statutory period, is not sufficient to satisfy the requirements of this section and preserve the enforceability of the claims of both the original plaintiff company and the plumbing and heating company against the mortgage company. Rogers Concrete, Inc. v. Jude Contractors, 38 Colo. App. 26, 550 P.2d 892 (1976).

III. NOTICE OF LIS PENDENS.

Purpose of lis pendens is to give notice to those interested in the property in question that a suit to foreclose a mechanic's lien is on file. Only one such notice is necessary. Bulow v. Ward Terry & Co., 155 Colo. 560, 396 P.2d 232 (1964).

The purpose of recording the lis pendens notice is to give notice of the pendency of an action to persons who may subsequently acquire or seek to acquire rights in the property. King v. W.R. Hall Transp. & Storage Co., 641 P.2d 916 (Colo. 1982).

Filing of one lis pendens is sufficient notice to subsequent purchasers of pending litigation against property. Abrams v. Colo. Seal & Stripe, Inc., 702 P.2d 765 (Colo. App. 1985).

Notice of lis pendens prerequisite to establishment of lien right. A notice of lis pendens is a prerequisite to the establishment of a lien right as against the owner of property or one primarily liable for the debt upon which the lien is based and, where no such lis pendens is filed, it is error to hold that no such notice is necessary as against the owner of the property involved. Kalamath Inv. Co. v. Asphalt Paving Co., 153 Colo. 109, 384 P.2d 938 (1963).

Bonding pursuant to § 38-22-131 does not excuse failure to record a notice of lis pendens. Weize Co., LLC v. Colo. Reg'l Constr., 251 P.3d 489 (Colo. App. 2010).

Failure to file notice not fatal to claimant's lien. Failure to file notice of lis pendens by one of several lien claimants is not fatal to the lien of the nonfiling claimant when the notice that has been filed discloses the existence and nature of the claim of the nonfiling claimant. Amco Elec. Co. v. First Nat'l Bank, 622 P.2d 608 (Colo. App. 1981).

Notice sufficient even though proprietorship incorrectly identified. Where a proprietorship is incorrectly identified as a corporation in the caption of the lis pendens, but the error is remedied by amendment and the defendants are not prejudiced thereby, the notice is sufficient under this section. Fasso v. Straten, 640 P.2d 272 (Colo. App. 1982).