(concurring and dissenting):
I join the Court in following precedent which interpreted Utah Code Ann. § 38-1-11 as permitting a lien claimant to bring an action within twelve months after the completion of a contract or, alternatively, within twelve months after there has been a suspension of work for a period of thirty days.1 However, I do not join the Court wherein it fails and refuses to follow likewise good precedent which invalidates the notice of a mechanic’s lien which is not verified under oath.
Utah Code Ann. § 38-1-7 (Supp.1981) (amended 1985 and 1987) specifically required that the contents of a mechanic’s lien be verified under oath. In addition, prior to 1988 any instrument in writing which affected the title to real property required the formality of an oath.2
The underlying policy considerations for the requirement of verification are as stated in First Security Mortgage Co. v. Hansen: 3
A lien creates an encumbrance on property that deprives the owner of his ability to convey clear title and impairs his credit. The filing of a lien for an excessive amount could be used to force a settlement unfairly weighed in favor of the claimant. Such abuse is made a misdemeanor by § 38-1-25. These serious consequences justify the statutory imposition of a requirement that one who makes the claim must furnish a sworn statement to the truthfulness of the facts giving rise to it. Frivolous, unfounded, and inflated claims can thereby be minimized, and the prejudgment property rights of the individuals receive their due protection.4
Thereupon, we concluded that verification is a mandatory condition precedent to the very creation and existence of a lien.
In Graff v. Boise Cascade Corp.5 we observed that the doctrine of substantial compliance has application in an appropriate case, but that the lack of verification is not a hypertechnicality that the Court is free to discount. Accordingly, in Helsten v. Schwendiman,6 we held that a police officer’s failure to sign his sworn report under oath in the presence of a notary public constituted a lack of verification. Similarly, in Colman v. Schwendiman,7 we held that a formal verbal affirmation is required in order for a statement to be validly sworn to.8
In the instant case, plaintiff’s own testimony was that he executed the notice of lien without being placed under oath and did not recite under oath any of the matters stated in the notice before the notary who placed her signature and notarial seal on the instrument. Without such verification, no lien was created.
I would affirm the judgment of the trial court, albeit on these different grounds.
. Totorica v. Thomas, 16 Utah 2d 175, 397 P.2d 984 (1965).
. Utah Code Ann. §§ 57-2-1, -7 (1986) (repealed 1988).
. 631 P.2d 919 (Utah 1981).
. Id. 631 P.2d at 922; see also Graff v. Boise Cascade, 660 P.2d 721 (Utah 1983); Colman v. Schwendiman, 680 P.2d 29 (Utah 1984); Helsten v. Schwendiman, 668 P.2d 509 (Utah 1983).
. 660 P.2d 721 (Utah 1983).
. 668 P.2d 509 (Utah 1983).
. 680 P.2d 29 (Utah 1984).
. Id. at 31 (citing and relying upon Spangler v. District Court of Salt Lake County, 104 Utah 584, 140 P.2d 755 (1943); McKnight v. State Land Board, 14 Utah 2d 238, 381 P.2d 726 (1963)).