100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB2615

 

Introduced , by Rep. Margo McDermed

 

SYNOPSIS AS INTRODUCED:
 
770 ILCS 60/5.1 new

    Amends the Mechanics Lien Act. Provides that, with specified exceptions, an owner, contractor, or subcontractor may not, by contract or otherwise, waive, affect, or impair any other claimant's rights unless the claimant executes and delivers a waiver and release under specified conditions and in conformance with specified statutory form language.


LRB100 07826 HEP 17894 b

 

 

A BILL FOR

 

HB2615LRB100 07826 HEP 17894 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Mechanics Lien Act is amended by adding
5Section 5.1 as follows:
 
6    (770 ILCS 60/5.1 new)
7    Sec. 5.1. Waivers.
8    (a) This Section applies to a work of improvement governed
9by this Act.
10    (b) Notwithstanding any other provision of law, an owner,
11contractor, or subcontractor may not, by contract or otherwise,
12waive, affect, or impair any other claimant's rights under this
13Act, whether with or without notice, and any term of a contract
14that purports to do so is void and unenforceable except as
15provided in this Section.
16    (c) A claimant's waiver and release does not release the
17owner, construction lender, or surety on a payment bond from a
18lien or claim unless both of the following conditions are
19satisfied:
20        (1) The waiver and release is in substantially the form
21    provided in this Section and is signed by the claimant.
22        (2) If the release is a conditional release, there is
23    evidence of payment to the claimant. Evidence of payment

 

 

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1    may be either of the following:
2            (A) The claimant's endorsement on a single or joint
3        payee check that has been paid by the financial
4        institution on which it was drawn.
5            (B) Written acknowledgment of payment by the
6        claimant.
7    (d) An oral or written statement purporting to waive,
8release, impair, or otherwise adversely affect a lien or claim
9is void and unenforceable and does not create an estoppel or
10impairment of the lien or claim unless either of the following
11conditions is satisfied:
12        (1) The statement is pursuant to a waiver and release
13    under this Section.
14        (2) The claimant has actually received payment in full
15    for the claim.
16    (e) A claimant may reduce the amount of, or release in its
17entirety, a stop payment notice. The reduction or release shall
18be in writing and may be given in a form other than a waiver and
19release form provided in this Section. The writing shall
20identify whether it is a reduction of the amount of the stop
21payment notice, or a release of the notice in its entirety. If
22the writing is a reduction, it shall state the amount of the
23reduction, and the amount to remain withheld after the
24reduction. A claimant's reduction or release of a stop payment
25notice has the following effect:
26        (1) The reduction or release releases the claimant's

 

 

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1    right to enforce payment of the claim stated in the notice
2    to the extent of the reduction or release.
3        (2) The reduction or release releases the person given
4    the notice from the obligation to withhold funds pursuant
5    to the notice to the extent of the reduction or release.
6    A reduction or release under this subsection does not
7preclude the claimant from giving a subsequent stop payment
8notice that is timely and proper. The reduction or release does
9not release any right of the claimant other than the right to
10enforce payment of the claim stated in the stop payment notice
11to the extent of the reduction or release.
12    (f) This Section does not affect the enforceability of
13either an accord and satisfaction concerning a good faith
14dispute or an agreement made in settlement of an action pending
15in court if the accord and satisfaction or agreement and
16settlement make specific reference to the lien or claim.
17    (g) If a claimant is required to execute a waiver and
18release in exchange for, or in order to induce payment of, a
19progress payment and the claimant is not, in fact, paid in
20exchange for the waiver and release or a single payee check or
21joint payee check is given in exchange for the waiver and
22release, the waiver and release is null, void, and
23unenforceable unless it is in substantially the following form:
24
CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
25NOTICE: THIS DOCUMENT WAIVES THE CLAIMANT'S LIEN, STOP PAYMENT
26NOTICE, AND PAYMENT BOND RIGHTS EFFECTIVE ON RECEIPT OF

 

 

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1PAYMENT. A PERSON SHOULD NOT RELY ON THIS DOCUMENT UNLESS
2SATISFIED THAT THE CLAIMANT HAS RECEIVED PAYMENT.
3
Identifying Information
4Name of Claimant:............................................
5Name of Customer:............................................
6Job Location:................................................
7Owner:.......................................................
8Through Date:................................................
9
Conditional Waiver and Release
10    This document waives and releases lien, stop payment
11notice, and payment bond rights the claimant has for labor and
12service provided, and equipment and material delivered, to the
13customer on this job through the Through Date of this document.
14Rights based upon labor or service provided, or equipment or
15material delivered, pursuant to a written change order that has
16been fully executed by the parties prior to the date that this
17document is signed by the claimant, are waived and released by
18this document, unless listed as an Exception below. This
19document is effective only on the claimant's receipt of payment
20from the financial institution on which the following check is
21drawn:
22Maker of Check:..............................................
23Amount of Check: $...........................................
24Check Payable to:............................................
25
Exceptions
26This document does not affect any of the following:

 

 

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1    (1) Retentions.
2    (2) Extras for which the claimant has not received payment.
3    (3) The following progress payments for which the claimant
4    has previously given a conditional waiver and release but
5    has not received payment:
6        Date(s) of waiver and release:.......................
7        Amount(s) of unpaid progress payment(s): $...........
8    (4) Contract rights, including: (i) a right based on
9    rescission, abandonment, or breach of contract; and (ii)
10    the right to recover compensation for work not compensated
11    by the payment.
12
Signature
13Claimant's Signature:........................................
14Claimant's Title:............................................
15Date of Signature:...........................................
16    (h) If the claimant is required to execute a waiver and
17release in exchange for, or in order to induce payment of, a
18progress payment and the claimant asserts in the waiver that
19the claimant has, in fact, been paid the progress payment, the
20waiver and release shall be null, void, and unenforceable
21unless it is in substantially the following form, with the text
22of the "Notice to Claimant" in at least as large a type as the
23largest type otherwise in the form:
24
UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
25NOTICE TO CLAIMANT: THIS DOCUMENT WAIVES AND RELEASES LIEN,
26STOP PAYMENT NOTICE, AND PAYMENT BOND RIGHTS UNCONDITIONALLY

 

 

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1AND STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS.
2THIS DOCUMENT IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN
3IF YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN PAID, USE A
4CONDITIONAL WAIVER AND RELEASE FORM.
5
Identifying Information
6Name of Claimant:............................................
7Name of Customer:............................................
8Job Location:................................................
9Owner:.......................................................
10Through Date:................................................
11
Unconditional Waiver and Release
12    This document waives and releases lien, stop payment
13notice, and payment bond rights the claimant has for labor and
14service provided, and equipment and material delivered, to the
15customer on this job through the Through Date of this document.
16Rights based upon labor or service provided, or equipment or
17material delivered, pursuant to a written change order that has
18been fully executed by the parties prior to the date that this
19document is signed by the claimant, are waived and released by
20this document, unless listed as an Exception below. The
21claimant has received the following progress payment: $......
22
Exceptions
23This document does not affect any of the following:
24    (1) Retentions.
25    (2) Extras for which the claimant has not received payment.
26    (3) Contract rights, including: (i) a right based on

 

 

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1rescission, abandonment, or breach of contract; and (2) the
2right to recover compensation for work not compensated by the
3payment.
4
Signature
5Claimant's Signature:........................................
6Claimant's Title:............................................
7Date of Signature:...........................................
8    (i) If the claimant is required to execute a waiver and
9release in exchange for, or in order to induce payment of, a
10final payment and the claimant is not, in fact, paid in
11exchange for the waiver and release or a single payee check or
12joint payee check is given in exchange for the waiver and
13release, the waiver and release shall be null, void, and
14unenforceable unless it is in substantially the following form:
15
CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
16NOTICE: THIS DOCUMENT WAIVES THE CLAIMANT'S LIEN, STOP PAYMENT
17NOTICE, AND PAYMENT BOND RIGHTS EFFECTIVE ON RECEIPT OF
18PAYMENT. A PERSON SHOULD NOT RELY ON THIS DOCUMENT UNLESS
19SATISFIED THAT THE CLAIMANT HAS RECEIVED PAYMENT.
20
Identifying Information
21Name of Claimant:............................................
22Name of Customer:............................................
23Job Location:................................................
24Owner:.......................................................
25
Conditional Waiver and Release
26    This document waives and releases lien, stop payment

 

 

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1notice, and payment bond rights the claimant has for labor and
2service provided, and equipment and material delivered, to the
3customer on this job. Rights based upon labor or service
4provided, or equipment or material delivered, pursuant to a
5written change order that has been fully executed by the
6parties prior to the date that this document is signed by the
7claimant, are waived and released by this document, unless
8listed as an Exception below. This document is effective only
9on the claimant's receipt of payment from the financial
10institution on which the following check is drawn:
11Maker of Check:..............................................
12Amount of Check: $...........................................
13Check Payable to:............................................
14
Exceptions
15This document does not affect any of the following:
16    Disputed claims for extras in the amount of: $...........
17
Signature
18Claimant's Signature:........................................
19Claimant's Title:............................................
20Date of Signature:...........................................
21    (j) If the claimant is required to execute a waiver and
22release in exchange for, or in order to induce payment of, a
23final payment and the claimant asserts in the waiver that the
24claimant has, in fact, been paid the final payment, the waiver
25and release shall be null, void, and unenforceable unless it is
26in substantially the following form, with the text of the

 

 

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1"Notice to Claimant" in at least as large a type as the largest
2type otherwise in the form:
3
UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
4NOTICE TO CLAIMANT: THIS DOCUMENT WAIVES AND RELEASES LIEN,
5STOP PAYMENT NOTICE, AND PAYMENT BOND RIGHTS UNCONDITIONALLY
6AND STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS.
7THIS DOCUMENT IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN
8IF YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN PAID, USE A
9CONDITIONAL WAIVER AND RELEASE FORM.
10
Identifying Information
11Name of Claimant:............................................
12Name of Customer:............................................
13Job Location:................................................
14Owner:.......................................................
15
Unconditional Waiver and Release
16    This document waives and releases lien, stop payment
17notice, and payment bond rights the claimant has for all labor
18and service provided, and equipment and material delivered, to
19the customer on this job. Rights based upon labor or service
20provided, or equipment or material delivered, pursuant to a
21written change order that has been fully executed by the
22parties prior to the date that this document is signed by the
23claimant, are waived and released by this document, unless
24listed as an Exception below. The claimant has been paid in
25full.
26
Exceptions

 

 

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1This document does not affect the following:
2    Disputed claims for extras in the amount of: $...........
3
Signature
4Claimant's Signature:........................................
5Claimant's Title:............................................
6Date of Signature:...........................................