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1 | AN ACT concerning liens.
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2 | Be it enacted by the People of the State of Illinois, | |||||||||||||||||||
3 | represented in the General Assembly:
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4 | Section 5. The Mechanics Lien Act is amended by changing | |||||||||||||||||||
5 | Section 21 as
follows:
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6 | (770 ILCS 60/21) (from Ch. 82, par. 21)
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7 | Sec. 21. Subject to the provisions of Section 5, every | |||||||||||||||||||
8 | mechanic,
worker or other person who shall furnish any | |||||||||||||||||||
9 | materials, apparatus,
machinery or fixtures, or furnish or | |||||||||||||||||||
10 | perform services or labor for the
contractor, or shall furnish | |||||||||||||||||||
11 | any material to be employed in the process
of construction as a | |||||||||||||||||||
12 | means for assisting in the erection of the building
or | |||||||||||||||||||
13 | improvement in what is commonly termed form or form work where
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14 | concrete, cement or like material is used in whole or in part, | |||||||||||||||||||
15 | shall be
known under this Act as a sub-contractor, and shall | |||||||||||||||||||
16 | have a lien for the
value thereof, with interest on such amount | |||||||||||||||||||
17 | from the date the same is
due, from the same time, on the same | |||||||||||||||||||
18 | property as provided for the
contractor, and, also, as against | |||||||||||||||||||
19 | the creditors and assignees, and
personal and legal | |||||||||||||||||||
20 | representatives of the contractor, on the material,
fixtures, | |||||||||||||||||||
21 | apparatus or machinery furnished, and on the moneys or other
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22 | considerations due or to become due from the owner under the | |||||||||||||||||||
23 | original
contract. If the legal effect of any contract between | |||||||||||||||||||
24 | the owner and
contractor is that no lien or claim may be filed | |||||||||||||||||||
25 | or maintained by any
one and the waiver is not prohibited by | |||||||||||||||||||
26 | this Act, such provision shall be
binding; but the only | |||||||||||||||||||
27 | admissible evidence
thereof as against a sub-contractor or | |||||||||||||||||||
28 | material person
man , shall be
proof of
actual notice thereof to | |||||||||||||||||||
29 | him or her before any labor or material is
furnished
by him or | |||||||||||||||||||
30 | her ; or proof that a duly written and signed stipulation or
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31 | agreement
to that effect has been filed in the office of the | |||||||||||||||||||
32 | recorder of
the county or counties where the house, building or |
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1 | other improvement is
situated, prior to the commencement of the | ||||||
2 | work upon such house,
building or other improvement, or within | ||||||
3 | 10 days after the execution of
the principal contract or not | ||||||
4 | less than 10 days prior to the contract
of the sub-contractor | ||||||
5 | or material person
man . The recorder shall
record the same at | ||||||
6 | length in the order of time of its reception in books
provided | ||||||
7 | by him or her for that purpose, and the recorder shall index
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8 | the same, in the name of the contractor and in the name of the | ||||||
9 | owner, in
books kept for that purpose, and also in the tract or | ||||||
10 | abstract book of
the tract, lot, or parcel of land, upon which | ||||||
11 | the house, building or
other improvement is located, and the | ||||||
12 | recorder shall receive therefor a fee,
such as is provided for | ||||||
13 | the recording of instruments in his or her office.
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14 | It shall be the duty of each subcontractor who has | ||||||
15 | furnished, or is
furnishing, materials or labor for an existing | ||||||
16 | owner-occupied single
family residence, in order to preserve | ||||||
17 | his or her lien, to notify the
occupant
either personally or by | ||||||
18 | certified mail, return receipt requested,
addressed to the | ||||||
19 | occupant or his or her agent of the residence within 60
days
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20 | from his or her first furnishing materials or labor, that he or | ||||||
21 | she is supplying
materials or labor; provided, however, that | ||||||
22 | any notice given after 60
days by the subcontractor shall | ||||||
23 | preserve his
or her lien, but only to the
extent that the owner | ||||||
24 | has not been prejudiced by payments made prior to
receipt of | ||||||
25 | the notice. The notification shall include a warning to the
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26 | owner that before any payment is made to the contractor, the | ||||||
27 | owner
should receive a waiver of lien executed by each | ||||||
28 | subcontractor who has
furnished materials or labor.
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29 | It shall be the duty of each subcontractor who has | ||||||
30 | furnished, or is
furnishing, materials or labor for an existing | ||||||
31 | commercial structure, in order to preserve his or her lien, to | ||||||
32 | notify the
owner of the commercial structure
either personally | ||||||
33 | or by certified mail, return receipt requested,
addressed to | ||||||
34 | the owner or his or her agent of the commercial structure | ||||||
35 | within 60 days from his or her first furnishing materials or | ||||||
36 | labor or within 60 days of substantial completion of the |
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1 | construction of the commercial structure for which the | ||||||
2 | materials or labor were furnished, that he or she is supplying
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3 | materials or labor; provided, however, that any notice given | ||||||
4 | after 60
days from substantial completion by the subcontractor | ||||||
5 | shall preserve his or her lien, but only to the
extent that the | ||||||
6 | owner has not been prejudiced by payments made prior to
receipt | ||||||
7 | of the notice. The notification shall include a warning to the
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8 | owner that before any payment is made to the contractor, the | ||||||
9 | owner
should receive a waiver of lien executed by each | ||||||
10 | subcontractor who has
furnished materials or labor.
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11 | The notice shall contain the name and address of the | ||||||
12 | subcontractor or
material person
man , the date he or she | ||||||
13 | started to work or to
deliver materials, the
type of work done | ||||||
14 | and to be done or the type of materials delivered and
to be | ||||||
15 | delivered, and the name of the contractor requesting the work.
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16 | The notice shall also contain the following warning:
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17 | "NOTICE TO OWNER
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18 | The subcontractor providing this notice has performed work | ||||||
19 | for or
delivered material to your home improvement contractor. | ||||||
20 | These services or
materials are being used in the improvements | ||||||
21 | to your residence and entitle
the subcontractor to file a lien | ||||||
22 | against your residence if the services or
materials are not | ||||||
23 | paid for by your home improvement contractor. A lien
waiver | ||||||
24 | will be provided to your contractor when the subcontractor is | ||||||
25 | paid,
and you are urged to request this waiver from your | ||||||
26 | contractor when paying
for your home improvements."
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27 | Such warning shall be in at least 10 point bold face type. | ||||||
28 | For
purposes of this Section, notice by certified mail is | ||||||
29 | considered served
at the time of its mailing.
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30 | In no case, except as hereinafter provided, shall the owner | ||||||
31 | be
compelled to pay a greater sum for or on account of the | ||||||
32 | completion of
such house, building or other improvement than | ||||||
33 | the price or sum
stipulated in said original contract or | ||||||
34 | agreement, unless payment be
made to the contractor or to his | ||||||
35 | or her order, in violation of the rights
and
interests of the | ||||||
36 | persons intended to be benefited by this act: Provided,
if it |
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1 | shall appear to the court that the owner and contractor
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2 | fraudulently, and for the purpose of defrauding | ||||||
3 | sub-contractors fixed an
unreasonably low price in their | ||||||
4 | original contract for the erection or
repairing of such house, | ||||||
5 | building or other improvement, then the court
shall ascertain | ||||||
6 | how much of a difference exists between a fair price for
labor | ||||||
7 | and material used in said house, building or other improvement,
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8 | and the sum named in said original contract, and said | ||||||
9 | difference shall
be considered a part of the contract and be | ||||||
10 | subject to a lien. But where
the contractor's statement, made | ||||||
11 | as provided in Section 5, shows the
amount to be paid to the | ||||||
12 | sub-contractor, or party furnishing material,
or the | ||||||
13 | sub-contractor's statement, made pursuant to Section 22, shows
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14 | the amount to become due for material; or notice is given to | ||||||
15 | the owner,
as provided in Sections 24 and 25, and thereafter | ||||||
16 | such sub-contract
shall be performed, or material to the value | ||||||
17 | of the amount named in such
statements or notice, shall be | ||||||
18 | prepared for use and delivery, or
delivered without written | ||||||
19 | protest on the part of the owner previous to
such performance | ||||||
20 | or delivery, or preparation for delivery, then, and in
any of | ||||||
21 | such cases, such sub-contractor or party furnishing or | ||||||
22 | preparing
material, regardless of the price named in the | ||||||
23 | original contract, shall
have a lien therefor to the extent of | ||||||
24 | the amount named in such
statements or notice. In case of | ||||||
25 | default or abandonment by the
contractor, the sub-contractor or | ||||||
26 | party furnishing material, shall have
and may enforce his or | ||||||
27 | her lien to the same extent and in the same manner
that
the | ||||||
28 | contractor may under conditions that arise as provided for in
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29 | section 4 of this Act, and shall have and may exercise the same | ||||||
30 | rights
as are therein provided for the contractor.
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31 | Any provision in a contract, agreement, or understanding,
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32 | when payment from a contractor to a subcontractor or supplier | ||||||
33 | is
conditioned upon receipt of the payment from any other party | ||||||
34 | including a
private or public owner, shall not be a defense by | ||||||
35 | the
party responsible for payment to a claim brought under | ||||||
36 | Section 21, 22, 23,
or 28 of this Act against the party. For |
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1 | the purpose of this Section,
"contractor" also includes | ||||||
2 | subcontractor or supplier. The provisions of
Public Act 87-1180 | ||||||
3 | shall be construed as
declarative of existing law and not as a | ||||||
4 | new enactment.
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5 | (Source: P.A. 87-361; 87-362; 87-895; 87-1180; 88-45.)
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