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| Public Act 098-0764
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| SB3023 Enrolled | LRB098 17607 HEP 52719 b |
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Mechanics Lien Act is amended by changing |
Sections 1 and 21 as follows:
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(770 ILCS 60/1) (from Ch. 82, par. 1)
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Sec. 1. Contractor defined; amount of lien; waiver of lien; |
attachment of lien; agreement to waive; when not enforceable.
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(a) Any person who shall by any contract or contracts, |
express or
implied, or partly expressed or implied, with the |
owner of a lot or
tract of land, or with one whom the owner has |
authorized or knowingly
permitted to contract, to improve the |
lot or tract of land or for the purpose of improving the tract |
of land, or to manage a
structure under construction thereon, |
is known under this Act as a contractor and has a lien upon the |
whole of such lot or tract of land and upon adjoining or |
adjacent lots or tracts of land of such owner constituting the |
same premises and occupied or used in connection with such lot |
or tract of land as a place of residence or business; and in |
case the contract relates to 2 or more buildings, on 2 or more |
lots or tracts of land, upon all such lots and tracts of land |
and improvements thereon for the amount due to him or her for |
the material, fixtures, apparatus, machinery, services or |
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labor, and interest at the rate of 10% per annum from the date |
the same is due. This lien extends to an estate in fee, for |
life, for years, or any other estate or any right of redemption |
or other interest that the owner may have in the lot or tract |
of land at the time of making such contract or may subsequently |
acquire and this lien attaches as of the date of the contract. |
(b) As used in subsection (a) of this Section, "improve" |
means to furnish labor, services, material, fixtures, |
apparatus or
machinery, forms or form work in the process of |
construction where
cement, concrete or like material is used |
for the purpose of or in the
building, altering, repairing or |
ornamenting any house or other building,
walk or sidewalk, |
whether the walk or sidewalk is on the land or bordering
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thereon, driveway, fence or improvement or appurtenances to the |
lot or
tract of land or connected therewith, and upon, over or |
under a sidewalk,
street or alley adjoining; or fill, sod or |
excavate such lot or tract of
land, or do landscape work |
thereon or therefor; or raise or lower any house
thereon or |
remove any house thereto, or remove any house or other |
structure
therefrom, or perform any services or incur any |
expense as an architect,
structural engineer, professional |
engineer, land surveyor or
property manager in, for or on a lot |
or tract of land for any such purpose;
or drill any water well |
thereon; or furnish or perform labor or services as
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superintendent, time keeper, mechanic, laborer or otherwise, |
in the
building, altering, repairing or ornamenting of the |
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same; or furnish
material, fixtures, apparatus, machinery, |
labor or services, forms or form
work used in the process of |
construction where concrete, cement or like
material is used, |
or drill any water well on the order of his agent,
architect, |
structural engineer or superintendent having charge of the
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improvements, building, altering, repairing or ornamenting the |
same. |
(c) The taking of additional
security by the contractor or |
sub-contractor is not a waiver of any
right of lien which he |
may have by virtue of this Act, unless made a
waiver by express |
agreement of the parties and the waiver is not
prohibited by |
this Act.
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(d) An agreement to waive any right to enforce or claim any |
lien under this Act, or an agreement to subordinate the lien, |
where the agreement is in anticipation of and in consideration |
for the awarding of a contract or subcontract, either express |
or implied, to perform work or supply materials for an |
improvement upon real property is against public policy and |
unenforceable. This Section does not prohibit release of lien |
under subsection (b) of Section 35 of this Act, nor does it |
prohibit an agreement to subordinate a mechanics lien to a |
mortgage lien that secures a construction loan if that |
agreement is made after more than 50% of the loan has been |
disbursed to fund improvements to the property or prohibit |
subordination of the lien, except as provided in Section 21.
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(Source: P.A. 94-627, eff. 1-1-06.)
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(770 ILCS 60/21) (from Ch. 82, par. 21)
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Sec. 21. Sub-contractor defined; lien of sub-contractor; |
notice; size of type; service of notice; amount of lien; |
default by contractor.
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(a) Subject to the provisions of Section 5, every mechanic,
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worker or other person who shall furnish any labor, services, |
material, fixtures, apparatus or
machinery, forms or form work |
for the
contractor, or shall furnish any material to be |
employed in the process
of construction as a means for |
assisting in the erection of the building
or improvement in |
what is commonly termed form or form work where
concrete, |
cement or like material is used in whole or in part, shall be
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known under this Act as a sub-contractor, and shall have a lien |
for the
value thereof, with interest on such amount from the |
date the same is
due, from the same time, on the same property |
as provided for the
contractor, and, also, as against the |
creditors and assignees, and
personal and legal |
representatives of the contractor, on the material,
fixtures, |
apparatus or machinery furnished, and on the moneys or other
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considerations due or to become due from the owner under the |
original
contract. |
(b) If the legal effect of a provision in any contract |
between the owner and
contractor or contractor and |
subcontractor is that no lien or claim may be filed or |
maintained by any
one and the waiver is not prohibited by this |
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Act, or that such contractor's lien shall be subordinated to |
the interests of any other party, and the provision is not |
prohibited by this Act, such provision shall be
binding if made |
as part of an agreement not prohibited by this Act. such |
provision shall be
binding; but the only admissible evidence
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thereof as against a subcontractor or material supplier, shall |
be proof of
actual notice thereof to him or her before his or |
her contract is entered into. Such subordination provision |
shall not be binding on the subcontractor unless set forth in |
its entirety in writing in the contract between the contractor |
and subcontractor or material supplier.
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(c) It shall be the duty of each subcontractor who has |
furnished, or is
furnishing, labor, services, material, |
fixtures, apparatus or machinery, forms or form work for an |
existing owner-occupied single
family residence, in order to |
preserve his lien, to notify the occupant
either personally or |
by certified mail, return receipt requested,
addressed to the |
occupant or his agent of the residence within 60 days
from his |
first furnishing labor, services, material, fixtures, |
apparatus or machinery, forms or form work, that he is |
supplying labor, services, material, fixtures, apparatus or |
machinery, forms or form work provided, however, that any |
notice given after 60
days by the subcontractor shall preserve |
his lien, but only to the
extent that the owner has not been |
prejudiced by payments made prior to
receipt of the notice. The |
notification shall include a warning to the
owner that before |
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any payment is made to the contractor, the owner
should receive |
a waiver of lien executed by each subcontractor who has
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furnished labor, services, material, fixtures, apparatus or |
machinery, forms or form work.
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The notice shall contain the name and address of the |
subcontractor or
material man, the date he started to work or |
to deliver materials, the
type of work done and to be done or |
the type of materials delivered and
to be delivered, and the |
name of the contractor requesting the work.
The notice shall |
also contain the following warning:
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"NOTICE TO OWNER
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The subcontractor providing this notice has performed work |
for or
delivered material to your home improvement contractor. |
These services or
materials are being used in the improvements |
to your residence and entitle
the subcontractor to file a lien |
against your residence if the services or
materials are not |
paid for by your home improvement contractor. A lien
waiver |
will be provided to your contractor when the subcontractor is |
paid,
and you are urged to request this waiver from your |
contractor when paying
for your home improvements."
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Such warning shall be in at least 10 point bold face type. |
For
purposes of this Section, notice by certified mail is |
considered served
at the time of its mailing.
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(d) In no case, except as hereinafter provided, shall the |
owner be
compelled to pay a greater sum for or on account of |
the completion of
such house, building or other improvement |
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than the price or sum
stipulated in said original contract or |
agreement, unless payment be
made to the contractor or to his |
order, in violation of the rights and
interests of the persons |
intended to be benefited by this Act: Provided,
if it shall |
appear to the court that the owner and contractor
fraudulently, |
and for the purpose of defrauding sub-contractors fixed an
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unreasonably low price in their original contract for the |
erection or
repairing of such house, building or other |
improvement, then the court
shall ascertain how much of a |
difference exists between a fair price for
labor, services, |
material, fixtures, apparatus or machinery, forms or form work |
used in said house, building or other improvement,
and the sum |
named in said original contract, and said difference shall
be |
considered a part of the contract and be subject to a lien. But |
where
the contractor's statement, made as provided in Section |
5, shows the
amount to be paid to the sub-contractor, or party |
furnishing material,
or the sub-contractor's statement, made |
pursuant to Section 22, shows
the amount to become due for |
material; or notice is given to the owner,
as provided in |
Sections 24 and 25, and thereafter such sub-contract
shall be |
performed, or material to the value of the amount named in such
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statements or notice, shall be prepared for use and delivery, |
or
delivered without written protest on the part of the owner |
previous to
such performance or delivery, or preparation for |
delivery, then, and in
any of such cases, such sub-contractor |
or party furnishing or preparing
material, regardless of the |
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price named in the original contract, shall
have a lien |
therefor to the extent of the amount named in such
statements |
or notice. In case of default or abandonment by the
contractor, |
the sub-contractor or party furnishing material, shall have
and |
may enforce his lien to the same extent and in the same manner |
that
the contractor may under conditions that arise as provided |
for in
Section 4 of this Act, and shall have and may exercise |
the same rights
as are therein provided for the contractor.
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(e) Any provision in a contract, agreement, or |
understanding,
when payment from a contractor to a |
subcontractor or supplier is
conditioned upon receipt of the |
payment from any other party including a
private or public |
owner, shall not be a defense by the
party responsible for |
payment to a claim brought under Section 21, 22, 23,
or 28 of |
this Act against the party. For the purpose of this Section,
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"contractor" also includes subcontractor or supplier. The |
provisions of
Public Act 87-1180 shall be construed as
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declarative of existing law and not as a new enactment.
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(Source: P.A. 94-615, eff. 1-1-06; 94-627, eff. 1-1-06.)
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Section 99. Effective date. This Act takes effect upon |
becoming law.
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