Bill Text: IN HB1183 | 2013 | Regular Session | Introduced
Bill Title: Abandoned structure liens.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2013-01-10 - First reading: referred to Committee on Judiciary [HB1183 Detail]
Download: Indiana-2013-HB1183-Introduced.html
Citations Affected: IC 32-28-15; IC 34-30.
Synopsis: Abandoned structure liens. Provides that a person who
repairs, cleans up, or maintains a neighboring abandoned structure is
entitled to a lien on the property, not to exceed the lesser of: (1) the fair
market value of the work performed; or (2) $10,000. Establishes a
procedure for creating, filing, and enforcing the lien. Provides that any
of the following may repair, clean up, or maintain an abandoned
structure (and may assert, file, and enforce a lien) on behalf of one or
more property owners whose property bears the specified geographic
proximity to an abandoned structure: (1) A neighborhood association.
(2) A homeowners association. (3) A community organization.
Provides that the lien has priority over: (1) a lien created after it; and
(2) a mortgage of a creditor. Specifies that the lien expires if not
enforced within one year after the statement and notice of intention to
hold a lien is recorded with the county recorder.
Effective: July 1, 2013.
January 10, 2013, read first time and referred to Committee on Judiciary.
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A BILL FOR AN ACT to amend the Indiana Code concerning
property.
Chapter 15. Lien for Repair, Cleanup, or Maintenance of Neighboring Abandoned Property
Sec. 1. This chapter applies only to a Class 2 structure (as defined in IC 22-12-1-5).
Sec. 2. As used in this chapter, "abandoned structure" has the meaning set forth in IC 36-7-36-1.
Sec. 3. As used in this chapter, "creditor" has the meaning set forth in IC 34-30-26-1.
Sec. 4. As used in this chapter, "neighboring abandoned structure" means an abandoned structure that is located on property:
(1) that is:
(A) contiguous or geographically adjacent to; or
(B) in contact with;
any point on the border of property owned or occupied by a person asserting a lien under this chapter; or
(2) some part of which is not more than three hundred (300) feet from the property line of property owned or occupied by a person asserting a lien under this chapter.
Sec. 5. As used in this chapter, "owner", with respect to real property, has the meaning set forth in IC 36-7-36-4.
Sec. 6. (a) A person who repairs, cleans up, or maintains a neighboring abandoned structure is entitled to a neighboring abandoned structure lien on the structure and the real property on which the structure is located, as set forth in this chapter.
(b) Notwithstanding section 4 of this chapter, any of the following may repair, clean up, or maintain an abandoned structure on behalf of one (1) or more property owners whose property bears the geographic proximity to an abandoned structure set forth in section 4 of this chapter:
(1) A neighborhood association, whether incorporated or unincorporated, the official geographic boundaries of which encompass both:
(A) the property of the one (1) or more owners whose property bears the geographic proximity to an abandoned structure set forth in section 4 of this chapter; and
(B) the abandoned structure.
(2) A homeowners association (as defined in IC 32-28-14-2) for a subdivision that includes both:
(A) the property of the one (1) or more owners whose property bears the geographic proximity to an abandoned structure set forth in section 4 of this chapter; and
(B) the abandoned structure.
(3) A community organization (as defined in IC 36-7-9-2), the official geographic boundaries of which encompass both:
(A) the property of the one (1) or more owners whose property bears the geographic proximity to an abandoned structure set forth in section 4 of this chapter; and
(B) the abandoned structure.
An entity described in subdivisions (1) through (3) that acts under this subsection on behalf of one (1) or more property owners is subject to and shall comply with the requirements set forth in this chapter that would otherwise apply to the one (1) or more property owners on whose behalf the entity acts.
(c) Notwithstanding section 4 of this chapter, any of the following may assert, file, and enforce a lien under this chapter on
behalf of one (1) or more property owners whose property bears
the geographic proximity to an abandoned structure set forth in
section 4 of this chapter:
(1) A neighborhood association, whether incorporated or
unincorporated, the official geographic boundaries of which
encompass both:
(A) the property of the one (1) or more owners whose
property bears the geographic proximity to an abandoned
structure set forth in section 4 of this chapter; and
(B) the abandoned structure.
(2) A homeowners association (as defined in IC 32-28-14-2)
for a subdivision that includes both:
(A) the property of the one (1) or more owners whose
property bears the geographic proximity to an abandoned
structure set forth in section 4 of this chapter; and
(B) the abandoned structure.
(3) A community organization (as defined in IC 36-7-9-2), the
official geographic boundaries of which encompass both:
(A) the property of the one (1) or more owners whose
property bears the geographic proximity to an abandoned
structure set forth in section 4 of this chapter; and
(B) the abandoned structure.
An entity described in subdivisions (1) through (3) that acts under
this subsection on behalf of one (1) or more property owners is
subject to and shall comply with the requirements set forth in this
chapter that would otherwise apply to the one (1) or more property
owners on whose behalf the entity acts. The entity may assert, file,
and enforce a lien under this chapter in its own name, or in the
name or names of the one (1) or more property owners on whose
behalf the entity acts. A lien asserted by a homeowners association
under this subsection on behalf of one (1) or more property owners
is supplemental and in addition to any lien for common expenses
that the homeowners association may assert in its own right under
IC 32-28-14 against the owner of an abandoned structure.
Sec. 7. A lien under this chapter may not exceed the lesser of the
following:
(1) The fair market value of the work performed and
materials used.
(2) Ten thousand dollars ($10,000).
Sec. 8. (a) To assert a lien under this chapter, a person must, not
later than ten (10) days before commencing the repair, cleanup, or
maintenance of a neighboring abandoned structure, send to the
owner of the neighboring abandoned structure written notice
asserting the person's intention to repair, clean up, or maintain the
neighboring abandoned structure.
(b) Written notice under this section must be sent by registered
or certified mail, return receipt requested, to the latest address of
the owner of the neighboring abandoned structure as shown on the
property tax records of the county in which the structure is
located. If the person described in subsection (a) provides evidence
that the notice under this section was sent by registered or certified
mail, return receipt requested, and as prescribed by this section, it
is not necessary that the owner of the neighboring abandoned
structure accept receipt of the notice for the person described in
subsection (a) to proceed to assert a lien as allowed under this
chapter.
(c) If the owner of the neighboring abandoned structure does
not begin repair, cleanup, or maintenance of the neighboring
abandoned structure not later than seven (7) days after the owner
receives the notice described in subsection (a), the person described
in subsection (a) may:
(1) commence the repair, cleanup, or maintenance of the
neighboring abandoned structure; and
(2) proceed to acquire, in the manner set forth in section 9 of
this chapter, a lien on the neighboring abandoned structure
for the work performed.
In any given calendar year, regardless of the number of occasions
on which a person described in subsection (a) repairs, cleans up, or
maintains a neighboring abandoned structure as allowed under
this chapter, the person described in subsection (a) is required to
send only one (1) written notice under subsection (a) per calendar
year to acquire a lien for all work performed by the person to
repair, clean up, or maintain the neighboring abandoned structure
during the calendar year. However, to acquire a lien for the work
performed on each separate occasion, the person described in
subsection (a) must comply with section 9 of this chapter for each
lien asserted.
(d) Subject to section 14 of this chapter, to acquire a lien under
this chapter for work performed under subsection (c)(1), a person
described in subsection (a) is not required to personally perform
the repair, clean up, or maintenance of the neighboring abandoned
structure and may employ or otherwise engage a contractor, an
agent, an employee, or another person to perform the work. A
person described in:
(1) subsection (a) who repairs, cleans up, or maintains a
neighboring abandoned structure under subsection (c)(1); or
(2) section 14(a) of this chapter;
is immune from civil liability and from claims of civil and criminal
trespass in connection with the repair, clean up, or maintenance of
a neighboring abandoned structure under this chapter, to the
extent provided in IC 34-30-26-5.
Sec. 9. (a) A person who wishes to acquire a lien on a
neighboring abandoned structure under this section must file in
duplicate a sworn statement and notice of the person's intention to
hold a lien on the neighboring abandoned structure for the amount
of the claim:
(1) in the recorder's office of the county in which the
neighboring abandoned structure is located; and
(2) not later than sixty (60) days after performing the repair,
cleanup, or maintenance on the neighboring abandoned
structure as described in this chapter.
The statement and notice of intention to hold a lien may be verified
and filed on behalf of a client by an attorney licensed to practice
law in Indiana.
(b) A statement and notice of intention to hold a lien filed under
this section must specifically set forth:
(1) the amount claimed;
(2) the name and address of the claimant;
(3) the:
(A) name; and
(B) latest address, as shown on the property tax records of
the county;
of the owner of the neighboring abandoned structure; and
(4) the street and address, if any, of the neighboring
abandoned structure.
A statement and notice filed under this section must also include a
copy of the written notice mailed to the owner of the neighboring
abandoned structure under section 8 of this chapter.
(c) The recorder shall:
(1) mail, by first class United States mail and not later than
three (3) business days after the date of the recording under
subsection (a), one (1) copy of the statement and notice of
intention to hold a lien to the owner of the neighboring
abandoned structure named in the statement and notice;
(2) post records as to the date of the mailing; and
(3) collect a fee of two dollars ($2) from the lien claimant for
each statement and notice that is mailed.
The statement and notice must be addressed to the latest address
of the owner of the neighboring abandoned structure, as
specifically set out in the sworn statement and notice of the person
intending to hold a lien upon the neighboring abandoned structure.
(d) The recorder shall record the statement and notice of
intention to hold a lien in the miscellaneous record book. The
recorder shall charge a fee for recording the statement and notice
in accordance with IC 36-2-7-10. When the statement and notice of
intention to hold a lien is recorded, the lien is created. The
recorded lien relates back to the date the person began to perform
the repair, cleanup, or maintenance. A lien created under this
chapter has priority over:
(1) a lien created after it, including a lien created after it
under this chapter by another person or by the same person
asserting the lien under this section; and
(2) a mortgage of a creditor.
Sec. 10. A lien under this chapter does not attach to real estate
purchased by an innocent purchaser for value without notice
unless the lien is recorded under section 9 of this chapter before the
deed by which the purchaser takes title is recorded.
Sec. 11. (a) A person may enforce a lien created under this
chapter by filing a complaint in the circuit or superior court of the
county where the neighboring abandoned structure that is the
subject of the lien is located. The complaint must be filed not later
than one (1) year after the date the statement and notice of
intention to hold a lien is recorded under section 9 of this chapter.
(b) If a lien created under this chapter is not enforced within the
time set forth in subsection (a), the lien is void.
(c) If a lien created under this chapter is foreclosed, the court
rendering judgment shall order a sale of the property that is
subject to the lien. The officers making the sale shall sell the
property without any relief from valuation or appraisement laws.
Sec. 12. (a) A person whose lien is recorded under this chapter
may be a party to an action to enforce the lien.
(b) The court, by judgment, may direct a sale of the land and
building for the satisfaction of the lien and costs. Except as
provided in section 9(d) of this chapter, the sale does not prejudice
the rights of:
(1) a prior encumbrance; or
(2) an owner or other person who is not a party to the action.
(c) If several actions are brought by different claimants with
regard to the same neighboring abandoned structure and are
pending at the same time, the court may order the actions to be
consolidated.
Sec. 13. If the proceeds of the sale of property subject to a lien
under this chapter are insufficient to pay all the claimants, the
court shall order the claimants to be paid in proportion to the
amount due each claimant.
Sec. 14. (a) This section applies to the following:
(1) Any:
(A) contractor;
(B) agent;
(C) employee; or
(D) other person;
who is employed or otherwise engaged by a person described
in section 8(a) of this chapter to repair, clean up, or maintain
a neighboring abandoned structure under section 8(d) of this
chapter, or who leases or furnishes any material, equipment,
or machinery to a person described in section 8(a) of this
chapter in connection with the repair, clean up, or
maintenance of a neighboring abandoned structure under this
chapter.
(2) Any:
(A) subcontractor;
(B) agent;
(C) employee; or
(D) other person;
who leases or furnishes any labor, services, material,
equipment, or machinery to a person described in subdivision
(1) in connection with the repair, clean up, or maintenance of
a neighboring abandoned structure under this chapter.
(b) If:
(1) either:
(A) the person described in section 8(a) of this chapter; or
(B) a person described in subsection (a)(1);
is indebted to a person described in subsection (a) for labor,
services, material, equipment, or machinery provided by a
person described in subsection (a) in connection with the
repair, clean up, or maintenance of a neighboring abandoned
structure under this chapter; and
(2) the person described in subsection (a) holds the owner of
the neighboring abandoned structure responsible for the
indebtedness;
the person described in subsection (a) may assert a claim in the
same manner and under the same conditions that a claim may be
asserted by a subcontractor, lessor, journeyman, or laborer under
IC 32-28-3-9.
Sec. 15. (a) A lien created under this chapter is void if both of
the following occur:
(1) The owner of the property subject to the lien or any
person having an interest in the property, including:
(A) a creditor in a mortgage to which the property is
subject; or
(B) another lienholder;
provides written notice to the owner or holder of the lien
created under this chapter to file an action to foreclose the
lien.
(2) The owner or holder of the lien created under this chapter
fails to file an action to foreclose the lien in the county where
the property is located not later than thirty (30) days after
receiving the notice described in subdivision (1).
(b) If a lien is void under subsection (a), a person who gives
notice under subsection (a)(1) by registered or certified mail,
return receipt requested, to the lienholder at the address given
under section 9(b)(2) of this chapter in the recorded statement and
notice of intention to hold a lien may file an affidavit of service of
the notice described in subsection (a)(1) with the recorder of the
county in which the property is located. The affidavit must state
the following:
(1) The facts of the notice under subsection (a)(1).
(2) That more than thirty (30) days have passed since the
notice was received by the lienholder.
(3) That no action to foreclose the lien is pending.
(4) That no unsatisfied judgment has been rendered on the
lien.
(c) The recorder shall:
(1) record the affidavit of service in the miscellaneous record
book of the recorder's office; and
(2) certify on the face of the record any lien that is fully
released.
When the recorder records the affidavit and certifies the record
under this subsection, the property described in the lien is released
from the lien.
Sec. 16. (a) In an action to foreclose a lien created under this
chapter:
(1) the defendant or owner of the property subject to the lien;
or
(2) any person having an interest in the property subject to
the lien, including:
(A) a creditor in a mortgage to which the property is
subject; or
(B) another lienholder;
may file in the action a written undertaking with surety to be
approved by the court.
(b) An undertaking filed under this section must provide that
the person filing the undertaking will pay any judgment that may
be recovered in the action to foreclose the lien, including costs and
attorney's fees allowed by the court, if the claim on which the
judgment is based is found by the court to have been a lien on the
property at the time the action was filed.
(c) If an undertaking described in subsection (b) is filed and
approved by the court:
(1) the court shall enter an order releasing the property from
the lien; and
(2) the property shall be discharged from the lien.
Sec. 17. In an action to enforce a lien under this chapter, a
plaintiff or lienholder who recovers a judgment in any sum is
entitled to recover reasonable attorney's fees. The court shall enter
the attorney's fees as a part of the judgment.
