No. 27020: R156-38. Residence Lien Restriction and Lien Recovery Fund Rules

DAR File No.: 27020
Filed: 06/01/2004, 12:01
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

Following a public hearing and further review by the Division, additional amendments to the rule are being proposed.

 

Summary of the rule or change:

In Section R156-38-102, amendments were to made to the definition of "permissive party" to further clarify the definition. In Section R156-38-204a, corrections were made in this section to Subsections R156-38-204a(2)(b)(i) through (iv) to change "contracting entity" to "real estate developer" since they deal with real estate developers. (DAR NOTE: This change in proposed rule has been filed to make additional changes to a proposed amendment that was published in the 04/15/2004 issue of the Utah State Bulletin, on page 39. Underlining in the rule below indicates text that has been added since the publication of the proposed rule mentioned above; strike-out indicates text that has been deleted. You must view the change in proposed rule and the proposed amendment together to understand all of the changes that will be enforceable should the agency make this rule effective.)

 

State statutory or constitutional authorization for this rule:

Section 38-11-101, and Subsections 58-1-106(1)(a) and 58-1-202(1)(a)

 

Anticipated cost or savings to:

the state budget:

No additional costs or savings will be incurred as a result of these additional amendments beyond those previously identified in the original rule filing.

 

local governments:

Additional proposed amendments do not apply to local governments. Therefore, there are no cost or savings to local governments.

 

other persons:

No additional costs or savings will be incurred as a result of these additional amendments beyond those previously identified in the original rule filing.

 

Compliance costs for affected persons:

No additional costs or savings will be incurred as a result of these additional amendments beyond those previously identified in the original rule filing.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

This change in proposed rule filing simplifies and clarifies the prior rule change published in the State Bulletin on 04/15/2004. This filing does not create any fiscal impact to businesses. Jason P. Perry, Acting Executive Director

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Commerce
Occupational and Professional Licensing
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY UT 84111-2316

 

Direct questions regarding this rule to:

Earl Webster at the above address, by phone at 801-530-7632, by FAX at 801-530-6511, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/15/2004

 

This rule may become effective on:

07/16/2004

 

Authorized by:

J. Craig Jackson, Director

 

 

RULE TEXT

R156. Commerce, Occupational and Professional Licensing.

R156-38. Residence Lien Restriction and Lien Recovery Fund Rules.

R156-38-102. Definitions.

In addition to the definitions in Title 38, Chapter 11, Residence Lien Restriction and Lien Recovery Fund Act; Title 58, Chapter 1, Division of Occupational and Professional Licensing Act; and Rule R156-1, General Rules of the Division of Occupational and Professional Licensing, which shall apply to these rules, as used in these rules:

(1) "Applicant" means either a claimant, as defined in Subsection (2), or a homeowner, as defined in Subsection (5), who submits an application for a certificate of compliance.

(2) "Claimant" means a person who submits an application or claim for payment from the fund.

(3) "Construction project", as used in Subsection 38-11-203(4), means all qualified services related to the written contract required by Subsection 38-11-204(3)(a).

(4) "Contracting entity" means an original contractor, a factory built housing retailer, or a real estate developer that contracts with a homeowner.

(5) "Homeowner" means the owner of an owner-occupied residence.

(6) "Licensed or exempt from licensure", as used in Subsection 38-11-204(3) means that, on the date the written contract was entered into, the contractor held a valid, active license issued by the Division pursuant to Title 58, Chapter 55 of the Utah Code in any classification or met any of the exemptions to licensure given in Title 58, Chapters 1 and 55.

(7) "Necessary party" includes the division, on behalf of the fund, and the claimant.

(8) "Owner", as defined in Subsection 38-11-102(16), does not include any person or developer who builds residences that are offered for sale to the public.

(9) "Permissive party" includes:

(a) with respect to claims for payment: the nonpaying party, the homeowner, and any entity who will be required to reimburse the fund if a claimant's claim is paid from the fund;[the nonpaying party in a claim for payment from the fund;]

(b) with respect to an application for a certificate of compliance: the original contractor and any entity who has demanded from the homeowner payment for qualified services.[in an application for a certificate of compliance; and

(c) the homeowner and any entity who will be required to reimburse the fund if a claimant's claim is paid from the fund in either a claim for payment or an application for certificate of compliance.]

(10) "Qualified services", as used in Subsection 38-11-102(19) do not include:

(a) services provided by the claimant to cure a breach of the contract between the claimant and the nonpaying party; or

(b) services provided by the claimant under a warranty or similar arrangement.

 

R156-38-204a. Applications for Certificate of Compliance by Homeowners - Supporting Documents and Information.

The following supporting documents shall, at a minimum, accompany each homeowner application for a certificate of compliance:

(1) a copy of the written contract between the homeowners and the contracting entity;

(2)(a) if the homeowner contracted with an original contractor, documentation issued by the division that the original contractor was licensed or exempt from licensure under Title 58, Chapter 55, Utah Construction Trades Licensing Act, on the date the contract was entered into;

(b) if the homeowner contracted with a real estate developer:

(i) credible evidence that the [contracting entity]real estate developer had an ownership interest in the property;

(ii) a copy of the contract between the [contracting entity]real estate developer and the licensed contractor with whom the [contracting entity]real estate developer contracted for construction of the residence or other credible evidence showing the existence of such a contract and setting forth a description of the services provided to the [contracting entity]real estate developer by the contractor;

(iii) credible evidence that the real estate developer offered the residence for sale to the public; and

(iv) documentation issued by the division that the contractor with whom the [contracting entity]real estate developer contracted for construction of the residence was licensed or exempt from licensure under Title 58, Chapter 55, Utah Construction Trades Licensing Act, on the date the contract was entered into;

(c) if the homeowner contracted with a manufactured housing retailer, a copy of the completed retail purchase contract;

(3) one of the following:

(a) an affidavit from the contracting entity acknowledging that the homeowner paid the contracting entity in full in accordance with the written contract and any amendments to the contract; or

(b) other credible evidence establishing that the homeowner paid the contracting entity in full in accordance with the written contract and any amendments to the contract; and

(4) an affidavit from the homeowner establishing that he is an owner as defined in Subsection 38-11-102(16) and that the residence is an owner-occupied residence as defined in Subsection 38-11-102(17).

 

KEY: licensing, contractors, liens

2004

Notice of Continuation April 6, 2000

38-11-101

58-1-106(1)(a)

58-1-202(1)(a)