Full Text of SB1985 97th General Assembly
SB1985 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 SB1985 Introduced 2/10/2011, by Sen. Pamela J. Althoff SYNOPSIS AS INTRODUCED: | | 770 ILCS 60/21 | from Ch. 82, par. 21 |
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Amends the Mechanics Lien Act. Makes a technical change in a
Section concerning a sub-contractor's lien.
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| | A BILL FOR |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois, | 3 | | represented in the General Assembly:
| 4 | | Section 5. The Mechanics Lien Act is amended by changing | 5 | | Section 21 as follows:
| 6 | | (770 ILCS 60/21) (from Ch. 82, par. 21)
| 7 | | Sec. 21. Sub-contractor defined; lien of sub-contractor; | 8 | | notice; size of type; service of notice; amount of lien; | 9 | | default by contractor.
| 10 | | (a) Subject to the
the provisions of Section 5, every | 11 | | mechanic,
worker or other person who shall furnish any labor, | 12 | | services, material, fixtures, apparatus or
machinery, forms or | 13 | | form work for the
contractor, or shall furnish any material to | 14 | | be employed in the process
of construction as a means for | 15 | | assisting in the erection of the building
or improvement in | 16 | | what is commonly termed form or form work where
concrete, | 17 | | cement or like material is used in whole or in part, shall be
| 18 | | known under this Act as a sub-contractor, and shall have a lien | 19 | | for the
value thereof, with interest on such amount from the | 20 | | date the same is
due, from the same time, on the same property | 21 | | as provided for the
contractor, and, also, as against the | 22 | | creditors and assignees, and
personal and legal | 23 | | representatives of the contractor, on the material,
fixtures, |
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| 1 | | apparatus or machinery furnished, and on the moneys or other
| 2 | | considerations due or to become due from the owner under the | 3 | | original
contract. | 4 | | (b) If the legal effect of any contract between the owner | 5 | | and
contractor is that no lien or claim may be filed or | 6 | | maintained by any
one and the waiver is not prohibited by this | 7 | | Act, or that such contractor's lien shall be subordinated to | 8 | | the interests of any other party, such provision shall be
| 9 | | binding; but the only admissible evidence
thereof as against a | 10 | | subcontractor or material supplier, shall be proof of
actual | 11 | | notice thereof to him or her before his or her contract is | 12 | | entered into. Such subordination provision shall not be binding | 13 | | on the subcontractor unless set forth in its entirety in | 14 | | writing in the contract between the contractor and | 15 | | subcontractor or material supplier.
| 16 | | (c) It shall be the duty of each subcontractor who has | 17 | | furnished, or is
furnishing, labor, services, material, | 18 | | fixtures, apparatus or machinery, forms or form work for an | 19 | | existing owner-occupied single
family residence, in order to | 20 | | preserve his lien, to notify the occupant
either personally or | 21 | | by certified mail, return receipt requested,
addressed to the | 22 | | occupant or his agent of the residence within 60 days
from his | 23 | | first furnishing labor, services, material, fixtures, | 24 | | apparatus or machinery, forms or form work, that he is | 25 | | supplying labor, services, material, fixtures, apparatus or | 26 | | machinery, forms or form work provided, however, that any |
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| 1 | | notice given after 60
days by the subcontractor shall preserve | 2 | | his lien, but only to the
extent that the owner has not been | 3 | | prejudiced by payments made prior to
receipt of the notice. The | 4 | | notification shall include a warning to the
owner that before | 5 | | any payment is made to the contractor, the owner
should receive | 6 | | a waiver of lien executed by each subcontractor who has
| 7 | | furnished labor, services, material, fixtures, apparatus or | 8 | | machinery, forms or form work.
| 9 | | The notice shall contain the name and address of the | 10 | | subcontractor or
material man, the date he started to work or | 11 | | to deliver materials, the
type of work done and to be done or | 12 | | the type of materials delivered and
to be delivered, and the | 13 | | name of the contractor requesting the work.
The notice shall | 14 | | also contain the following warning:
| 15 | | "NOTICE TO OWNER
| 16 | | The subcontractor providing this notice has performed work | 17 | | for or
delivered material to your home improvement contractor. | 18 | | These services or
materials are being used in the improvements | 19 | | to your residence and entitle
the subcontractor to file a lien | 20 | | against your residence if the services or
materials are not | 21 | | paid for by your home improvement contractor. A lien
waiver | 22 | | will be provided to your contractor when the subcontractor is | 23 | | paid,
and you are urged to request this waiver from your | 24 | | contractor when paying
for your home improvements."
| 25 | | Such warning shall be in at least 10 point bold face type. | 26 | | For
purposes of this Section, notice by certified mail is |
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| 1 | | considered served
at the time of its mailing.
| 2 | | (d) In no case, except as hereinafter provided, shall the | 3 | | owner be
compelled to pay a greater sum for or on account of | 4 | | the completion of
such house, building or other improvement | 5 | | than 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, services, | 15 | | material, fixtures, apparatus or machinery, forms or form work | 16 | | used in said house, building or other improvement,
and the sum | 17 | | named in said original contract, and said difference shall
be | 18 | | considered a part of the contract and be subject to a lien. But | 19 | | where
the contractor's statement, made as provided in Section | 20 | | 5, shows the
amount to be paid to the sub-contractor, or party | 21 | | furnishing material,
or the sub-contractor's statement, made | 22 | | pursuant to Section 22, shows
the amount to become due for | 23 | | material; or notice is given to the owner,
as provided in | 24 | | Sections 24 and 25, and thereafter such sub-contract
shall be | 25 | | performed, or material to the value of the amount named in such
| 26 | | statements or notice, shall be prepared for use and delivery, |
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| 1 | | or
delivered without written protest on the part of the owner | 2 | | previous to
such performance or delivery, or preparation for | 3 | | delivery, then, and in
any of such cases, such sub-contractor | 4 | | or party furnishing or preparing
material, regardless of the | 5 | | price named in the original contract, shall
have a lien | 6 | | therefor to the extent of the amount named in such
statements | 7 | | or notice. In case of default or abandonment by the
contractor, | 8 | | the sub-contractor or party furnishing material, shall have
and | 9 | | may enforce his lien to the same extent and in the same manner | 10 | | that
the contractor may under conditions that arise as provided | 11 | | for in
Section 4 of this Act, and shall have and may exercise | 12 | | the same rights
as are therein provided for the contractor.
| 13 | | (e) Any provision in a contract, agreement, or | 14 | | understanding,
when payment from a contractor to a | 15 | | subcontractor or supplier is
conditioned upon receipt of the | 16 | | payment from any other party including a
private or public | 17 | | owner, shall not be a defense by the
party responsible for | 18 | | payment to a claim brought under Section 21, 22, 23,
or 28 of | 19 | | this Act against the party. For the purpose of this Section,
| 20 | | "contractor" also includes subcontractor or supplier. The | 21 | | provisions of
Public Act 87-1180 shall be construed as
| 22 | | declarative of existing law and not as a new enactment.
| 23 | | (Source: P.A. 94-615, eff. 1-1-06; 94-627, eff. 1-1-06.)
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