Notice of the Pendency of the Action

Utah Code section 38-1-11 states that:
(2) (a) Within the time period provided for filing in Subsection (1) the lien claimant shall file for record with the county recorder of each county in which the lien is recorded a notice of the pendency of the action, in the manner provided in actions affecting the title or right to possession of real property, or the lien shall be void, except as to persons who have been made parties to the action and persons having actual knowledge of the commencement of the action.
(b) The burden of proof shall be upon the lien claimant and those claiming under him to show actual knowledge.
(3) This section may not be interpreted to impair or affect the right of any person to whom a debt may be due for any work done or materials furnished to maintain a personal action to recover the same.
Utah Code Ann.§ 38-1-11(2) to -(3) (Lexis 2005).

The notice of the pendency of the action is called a lis pendens and, when filed, it becomes part of the public record as does the Notice of Lien. The lis pendens puts potential purchasers, lenders and others on notice that an lawsuit has been instituted to foreclose a lien on that property. The lis pendens is usually prepared at the same time as the complaint for the foreclosure action and, therefore, it will usually be prepared and filed by the attorney for the claimant.

The validity of a lien against the owner of the liened property when the lis pendens is not properly filed was considered in Harris-Dudley Plumbing Co. v. Professional United World Travel Association (WTA), Inc., 592 P.2d 586 (Utah 1979). In that case a plumbing contractor installed a water line on two adjacent lots but was not paid for the work. The contractor timely filed a mechanic’s lien on both lots and brought an action seeking foreclosure of the lien and a personal judgment against the defendants for installation of the water line. However, the contractor’s lis pendens, which he filed, only covered one of the lots. The lower court entered an order providing for foreclosure of lien and sale of subject property and granting personal judgment for the amount due. The landowner appealed claiming, among other things, that the plumbing contractor’s lien was void under the statute requiring that notice of pendency of the action be filed within one year from the completion of the contract. The Utah Supreme Court said:

"It is true as Defendants argue, that Section 38-1-11, U.C.A., 1953, requires that a Notice of Lis Pendens be filed within one year of the lien or the lien is void. But Defendants ignore the exception contained in that section that the lien would not be void as to “persons who have been made parties to the action and persons having actual knowledge of the commencement of the action . . . .” Id. at 588.

Since the owners of the project were made parties to the action and they had actual knowledge of the commencement of the action, the lien could be foreclosed as to their interests in the property without a lis pendens being filed on the property.