Judiciary I - Civil Law Committee
Adopted in House Comm. on Mar 04, 2004
|
|||||||
| |||||||
| |||||||
1 | AMENDMENT TO HOUSE BILL 3994
| ||||||
2 | AMENDMENT NO. ______. Amend House Bill 3994 by replacing | ||||||
3 | everything after the enacting clause with the following:
| ||||||
4 | "Section 5. The Mechanics Lien Act is amended by changing | ||||||
5 | Sections 1, 5, and 21 as follows:
| ||||||
6 | (770 ILCS 60/1) (from Ch. 82, par. 1)
| ||||||
7 | Sec. 1. Any person who shall by any contract or contracts, | ||||||
8 | express or
implied, or partly expressed or implied, with the | ||||||
9 | owner of a lot or
tract of land, or with one whom the owner has | ||||||
10 | authorized or knowingly
permitted to contract, to improve the | ||||||
11 | lot or tract of land or to manage a
structure thereon, or to | ||||||
12 | furnish material, fixtures, apparatus or
machinery, forms or | ||||||
13 | form work used in the process of construction where
cement, | ||||||
14 | concrete or like material is used for the purpose of or in the
| ||||||
15 | building, altering, repairing or ornamenting any house or other | ||||||
16 | building,
walk or sidewalk, whether the walk or sidewalk is on | ||||||
17 | the land or bordering
thereon, driveway, fence or improvement | ||||||
18 | or appurtenances to the lot or
tract of land or connected | ||||||
19 | therewith, and upon, over or under a sidewalk,
street or alley | ||||||
20 | adjoining; or fill, sod or excavate such lot or tract of
land, | ||||||
21 | or do landscape work thereon or therefor; or raise or lower any | ||||||
22 | house
thereon or remove any house thereto, or remove any house | ||||||
23 | or other structure
therefrom, or perform any services or incur | ||||||
24 | any expense as an architect,
structural engineer, professional |
| |||||||
| |||||||
1 | engineer, land surveyor or
property manager in, for or on a lot | ||||||
2 | or tract of land for any such purpose;
or drill any water well | ||||||
3 | thereon; or furnish or perform labor or services as
| ||||||
4 | superintendent, time keeper, mechanic, laborer or otherwise, | ||||||
5 | in the
building, altering, repairing or ornamenting of the | ||||||
6 | same; or furnish
material, fixtures, apparatus, machinery, | ||||||
7 | labor or services, forms or form
work used in the process of | ||||||
8 | construction where concrete, cement or like
material is used, | ||||||
9 | or drill any water well on the order of his agent,
architect, | ||||||
10 | structural engineer or superintendent having charge of the
| ||||||
11 | improvements, building, altering, repairing or ornamenting the | ||||||
12 | same, is
known under this Act as a contractor, and has a lien | ||||||
13 | upon the whole of such
lot or tract of land and upon adjoining | ||||||
14 | or adjacent lots or tracts of land
of such owner constituting | ||||||
15 | the same premises and occupied or used in
connection with such | ||||||
16 | lot or tract of land as a place of residence or
business; and | ||||||
17 | in case the contract relates to 2 or more buildings, on 2 or
| ||||||
18 | more lots or tracts of land, upon all such lots and tracts of | ||||||
19 | land and
improvements thereon for the amount due to him for | ||||||
20 | such material, fixtures,
apparatus, machinery, services or | ||||||
21 | labor, and interest at the rate of 10%
per annum from the date | ||||||
22 | the same is due. This lien
extends to an estate in fee, for | ||||||
23 | life, for years,
or any other estate or any right of | ||||||
24 | redemption, or other interest which
the owner may have in the | ||||||
25 | lot or tract of land at the time of making
such contract or may | ||||||
26 | subsequently acquire. The taking of additional
security by the | ||||||
27 | contractor or sub-contractor is not a waiver of any
right of | ||||||
28 | lien which he may have by virtue of this Act, unless made a
| ||||||
29 | waiver by express agreement of the parties and the waiver is | ||||||
30 | not
prohibited by this Act. This lien attaches as of the date | ||||||
31 | of the contract. A contractor for improvements of an | ||||||
32 | owner-occupied single-family residence must give the owner | ||||||
33 | written notice before filing a lien against any property of the | ||||||
34 | owner.
|
| |||||||
| |||||||
1 | (Source: P.A. 86-807; 87-361.)
| ||||||
2 | (770 ILCS 60/5) (from Ch. 82, par. 5)
| ||||||
3 | Sec. 5. It shall be the duty of the contractor to give the | ||||||
4 | owner,
and the duty of the owner to require of the contractor, | ||||||
5 | before the owner
or his agent, architect, or superintendent | ||||||
6 | shall pay or cause to be
paid to the contractor or to his order | ||||||
7 | any moneys or other consideration
due or to become due to the | ||||||
8 | contractor, or make or cause to be made to the
contractor any | ||||||
9 | advancement of any moneys or any other consideration, a
| ||||||
10 | statement in writing, under oath or verified by affidavit, of | ||||||
11 | the names and
addresses of all parties furnishing materials and | ||||||
12 | labor and of the amounts
due or to become due to each. | ||||||
13 | Merchants and dealers in materials only
shall not be required | ||||||
14 | to make statements required in this Section.
| ||||||
15 | Each contractor shall provide each owner, either as part of | ||||||
16 | the
contract or as a separate printed statement, the following:
| ||||||
17 | "THE LAW REQUIRES THAT THE CONTRACTOR SHALL SUBMIT A SWORN
| ||||||
18 | STATEMENT OF PERSONS FURNISHING MATERIALS AND LABOR BEFORE ANY | ||||||
19 | PAYMENTS
ARE REQUIRED TO BE MADE TO THE CONTRACTOR."
| ||||||
20 | If printed in the contract, the statement shall be set in | ||||||
21 | type
that is at least the same size as the largest type used in | ||||||
22 | the body of
the contract and is bold face or another font that | ||||||
23 | clearly contrasts
with and sets the statement apart from the | ||||||
24 | rest of the body of the contract.
| ||||||
25 | It shall be the duty of each contractor or subcontractor | ||||||
26 | who has furnished, or
is furnishing, materials or labor for an | ||||||
27 | existing owner-occupied
single-family residence, in order to | ||||||
28 | preserve his lien, to notify the
occupant either personally or | ||||||
29 | by certified mail, return receipt requested,
addressed to the | ||||||
30 | occupant or his agent at the residence within 60 days from
his | ||||||
31 | first furnishing materials or labor, that he is supplying | ||||||
32 | materials or
labor. Any notice given after 60 days by the | ||||||
33 | contractor or subcontractor, however, shall
preserve his lien, |
| |||||||
| |||||||
1 | but only to the extent that the owner has not been
prejudiced | ||||||
2 | by payments made before receipt of the notice.
| ||||||
3 | The notice shall contain the name and address of the | ||||||
4 | subcontractor
or material man, the date he started to work or | ||||||
5 | to deliver materials, the
type of work done and to be done or | ||||||
6 | the type of materials delivered and to
be delivered, and the | ||||||
7 | name of the contractor requesting the work. The
notice shall | ||||||
8 | also contain the following warning:
| ||||||
9 | "NOTICE TO OWNER
| ||||||
10 | The contractor providing this notice has performed work or | ||||||
11 | materials for your home improvement or the subcontractor | ||||||
12 | providing this notice has performed work for or
delivered | ||||||
13 | material to your home improvement contractor. These services or
| ||||||
14 | materials are being used in the improvements to your residence | ||||||
15 | and entitle
the contractor to file a lien against your | ||||||
16 | residence or the subcontractor to file a lien against your | ||||||
17 | residence if the services or
materials are not paid for by your | ||||||
18 | home improvement contractor. A lien
waiver will be provided to | ||||||
19 | your contractor when the subcontractor is paid,
and you are | ||||||
20 | urged to request this waiver from your contractor when paying
| ||||||
21 | for your home improvements."
| ||||||
22 | The warning shall be in at least 10 point boldface type. | ||||||
23 | For purposes
of this Section, notice by certified mail is | ||||||
24 | considered served at the
time of its mailing.
| ||||||
25 | (Source: P.A. 87-362.)
| ||||||
26 | (770 ILCS 60/21) (from Ch. 82, par. 21)
| ||||||
27 | Sec. 21. Subject to the provisions of Section 5, every | ||||||
28 | mechanic,
worker or other person who shall furnish any | ||||||
29 | materials, apparatus,
machinery or fixtures, or furnish or | ||||||
30 | perform services or labor for the
contractor, or shall furnish | ||||||
31 | any material to be employed in the process
of construction as a | ||||||
32 | means for assisting in the erection of the building
or | ||||||
33 | improvement in what is commonly termed form or form work where
|
| |||||||
| |||||||
1 | concrete, cement or like material is used in whole or in part, | ||||||
2 | shall be
known under this Act as a sub-contractor, and shall | ||||||
3 | have a lien for the
value thereof, with interest on such amount | ||||||
4 | from the date the same is
due, from the same time, on the same | ||||||
5 | property as provided for the
contractor, and, also, as against | ||||||
6 | the creditors and assignees, and
personal and legal | ||||||
7 | representatives of the contractor, on the material,
fixtures, | ||||||
8 | apparatus or machinery furnished, and on the moneys or other
| ||||||
9 | considerations due or to become due from the owner under the | ||||||
10 | original
contract. If the legal effect of any contract between | ||||||
11 | the owner and
contractor is that no lien or claim may be filed | ||||||
12 | or maintained by any
one and the waiver is not prohibited by | ||||||
13 | this Act, such provision shall be
binding; but the only | ||||||
14 | admissible evidence
thereof as against a sub-contractor or | ||||||
15 | material man, shall be proof of
actual notice thereof to him | ||||||
16 | before any labor or material is furnished
by him; or proof that | ||||||
17 | a duly written and signed stipulation or agreement
to that | ||||||
18 | effect has been filed in the office of the recorder of
the | ||||||
19 | county or counties where the house, building or other | ||||||
20 | improvement is
situated, prior to the commencement of the work | ||||||
21 | upon such house,
building or other improvement, or within 10 | ||||||
22 | days after the execution of
the principal contract or not less | ||||||
23 | than 10 days prior to the contract
of the sub-contractor or | ||||||
24 | material man. The recorder shall
record the same at length in | ||||||
25 | the order of time of its reception in books
provided by him for | ||||||
26 | that purpose, and the recorder shall index
the same, in the | ||||||
27 | name of the contractor and in the name of the owner, in
books | ||||||
28 | kept for that purpose, and also in the tract or abstract book | ||||||
29 | of
the tract, lot, or parcel of land, upon which the house, | ||||||
30 | building or
other improvement is located, and the recorder | ||||||
31 | shall receive therefor a fee,
such as is provided for the | ||||||
32 | recording of instruments in his office.
| ||||||
33 | It shall be the duty of each contractor or subcontractor | ||||||
34 | who has furnished, or is
furnishing, materials or labor for an |
| |||||||
| |||||||
1 | existing owner-occupied single
family residence, in order to | ||||||
2 | preserve his lien, to notify the occupant
either personally or | ||||||
3 | by certified mail, return receipt requested,
addressed to the | ||||||
4 | occupant or his agent of the residence within 60 days
from his | ||||||
5 | first furnishing materials or labor, that he is supplying
| ||||||
6 | materials or labor; provided, however, that any notice given | ||||||
7 | after 60
days by the contractor or subcontractor shall preserve | ||||||
8 | his lien, but only to the
extent that the owner has not been | ||||||
9 | prejudiced by payments made prior to
receipt of the notice. The | ||||||
10 | notification shall include a warning to the
owner that before | ||||||
11 | any payment is made to the contractor, the owner
should receive | ||||||
12 | a waiver of lien executed by each contractor or subcontractor | ||||||
13 | who has
furnished materials or labor.
| ||||||
14 | The notice shall contain the name and address of the | ||||||
15 | subcontractor or
material man, the date he started to work or | ||||||
16 | to deliver materials, the
type of work done and to be done or | ||||||
17 | the type of materials delivered and
to be delivered, and the | ||||||
18 | name of the contractor requesting the work.
The notice shall | ||||||
19 | also contain the following warning:
| ||||||
20 | "NOTICE TO OWNER
| ||||||
21 | The contractor providing this notice has performed work or | ||||||
22 | materials for your home improvement or the subcontractor | ||||||
23 | providing this notice has performed work for or
delivered | ||||||
24 | material to your home improvement contractor. These services or
| ||||||
25 | materials are being used in the improvements to your residence | ||||||
26 | and entitle
the contractor to file a lien against your | ||||||
27 | residence or the subcontractor to file a lien against your | ||||||
28 | residence if the services or
materials are not paid for by your | ||||||
29 | home improvement contractor. A lien
waiver will be provided to | ||||||
30 | your contractor when the subcontractor is paid,
and you are | ||||||
31 | urged to request this waiver from your contractor when paying
| ||||||
32 | for your home improvements."
| ||||||
33 | Such warning shall be in at least 10 point bold face type. | ||||||
34 | For
purposes of this Section, notice by certified mail is |
| |||||||
| |||||||
1 | considered served
at the time of its mailing.
| ||||||
2 | In no case, except as hereinafter provided, shall the owner | ||||||
3 | be
compelled to pay a greater sum for or on account of the | ||||||
4 | completion of
such house, building or other improvement than | ||||||
5 | the price or sum
stipulated in said original contract or | ||||||
6 | agreement, unless payment be
made to the contractor or to his | ||||||
7 | order, in violation of the rights and
interests of the persons | ||||||
8 | intended to be benefited by this act: Provided,
if it shall | ||||||
9 | appear to the court that the owner and contractor
fraudulently, | ||||||
10 | and for the purpose of defrauding sub-contractors fixed an
| ||||||
11 | unreasonably low price in their original contract for the | ||||||
12 | erection or
repairing of such house, building or other | ||||||
13 | improvement, then the court
shall ascertain how much of a | ||||||
14 | difference exists between a fair price for
labor and material | ||||||
15 | used in said house, building or other improvement,
and the sum | ||||||
16 | named in said original contract, and said difference shall
be | ||||||
17 | considered a part of the contract and be subject to a lien. But | ||||||
18 | where
the contractor's statement, made as provided in Section | ||||||
19 | 5, shows the
amount to be paid to the sub-contractor, or party | ||||||
20 | furnishing material,
or the sub-contractor's statement, made | ||||||
21 | pursuant to Section 22, shows
the amount to become due for | ||||||
22 | material; or notice is given to the owner,
as provided in | ||||||
23 | Sections 24 and 25, and thereafter such sub-contract
shall be | ||||||
24 | performed, or material to the value of the amount named in such
| ||||||
25 | statements or notice, shall be prepared for use and delivery, | ||||||
26 | or
delivered without written protest on the part of the owner | ||||||
27 | previous to
such performance or delivery, or preparation for | ||||||
28 | delivery, then, and in
any of such cases, such sub-contractor | ||||||
29 | or party furnishing or preparing
material, regardless of the | ||||||
30 | price named in the original contract, shall
have a lien | ||||||
31 | therefor to the extent of the amount named in such
statements | ||||||
32 | or notice. In case of default or abandonment by the
contractor, | ||||||
33 | the sub-contractor or party furnishing material, shall have
and | ||||||
34 | may enforce his lien to the same extent and in the same manner |
| |||||||
| |||||||
1 | that
the contractor may under conditions that arise as provided | ||||||
2 | for in
section 4 of this Act, and shall have and may exercise | ||||||
3 | the same rights
as are therein provided for the contractor.
| ||||||
4 | Any provision in a contract, agreement, or understanding,
| ||||||
5 | when payment from a contractor to a subcontractor or supplier | ||||||
6 | is
conditioned upon receipt of the payment from any other party | ||||||
7 | including a
private or public owner, shall not be a defense by | ||||||
8 | the
party responsible for payment to a claim brought under | ||||||
9 | Section 21, 22, 23,
or 28 of this Act against the party. For | ||||||
10 | the purpose of this Section,
"contractor" also includes | ||||||
11 | subcontractor or supplier. The provisions of
Public Act 87-1180 | ||||||
12 | shall be construed as
declarative of existing law and not as a | ||||||
13 | new enactment.
| ||||||
14 | (Source: P.A. 87-361; 87-362; 87-895; 87-1180; 88-45.)".
|