Substitute for Notorization

The Utah Legislature recently passed a law allowing a person to self-authenticate his or her signature in certain circumstances, rather than have it notarized by a notary public. In lieu of having a notary public authenticate the signature, the person signing the document will sign and date the document a second time with language provided in the statute that is in the following form:

"I declare (or certify, verify, or state) under criminal penalty of the State of Utah that the foregoing is true and correct."

It is important to note that a party may only self-authenticate where the Utah Rules of Criminal Procedure, Civil Procedure, or Evidence require or permit notarization. Consequently, self-authentication likely is not permissible in other contexts where notarization is required (i.e., execution of deeds or similar conveyances).

Dealing with Excessive and Wrongful Liens in Utah

Utah law provides means to address situations you may confront as an owner of property where someone records an excessive lien or a wrongful or illegal lien against your property. How you address a lien recorded against your property will depend on whether the lien claimant has a legitimate right to record a lien, but does so in an amount in excess of the lien right, or whether the lien claimant has no right to record a lien (wrongful or illegal lien).

Excessive Lien

Where a lien claimant has a right to a lien, but has recorded a notice of claim of lien in excess of the actual right, you can address the excessive lien through the abuse of lien statutes and through the Division of Occupational and Professional Licensing.

For example, if Contractor A provides $10,000.00 in materials and services to improve your property, and if Contractor A subsequently records a mechanic’s lien in the amount of $20,000.00, then Contractor A has abused his or her lien right. As a result, Contractor A runs the risk of criminal liability for the excessive lien. Utah law makes it a class B misdemeanor to intentionally cause a claim of lien to be recorded against any property containing a greater demand than the sum due. See Utah Code § 38-1-25 (additional elements must also be met). Significantly, if Contractor A is found guilty of abusing his or her lien right, then Contractor A may also be liable to you for damages.

In addition to the criminal and civil actions available, a property owner may also report a lien claimant to the Division of Occupational and Professional Licensing. The Division’s website is found at http://www.dopl.utah.gov/.

No Right to Lien (Wrongful or Illegal Lien)

If a person files a lien against your property without a legitimate right to do so, then you may petition a court to nullify or remove the wrongful lien. To nullify a wrongful lien, you must present a petition to the court explaining the specific reasons why the lien is improper. The petition must be made by or on behalf of a person that has a present, lawful interest in the property (i.e., owner, titleholder, mortgagee, trustee, or beneficial owner). The petition must be accompanied by an affidavit signed by the interest holder.

After the petition is filed with the court and served on the person claiming the wrongful lien, the court will hold a hearing to determine if the document is a wrongful lien. If at the time of the hearing the court determines that the lien is wrongful, then the court will enter an order declaring the lien void, releasing the property, and awarding costs and attorney’s fees to the owner of the property. The court’s order nullifying the wrongful lien will contain a legal description of the property allowing the owner of the property to record the order with the county.