Bill Text: MI SB0465 | 2017-2018 | 99th Legislature | Introduced
Bill Title: Liens; construction; architects, engineers, and surveyors; allow to have a lien on recording a notice, without an actual physical improvement. Amends secs. 104, 106, 108, 108a, 109, 112 & 119 of 1980 PA 497 (MCL 570.1104 et seq.) & adds secs. 107a & 107b & repeals sec. 301 of 1980 PA 497 (MCL 570.1301).
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2018-12-13 - Assigned Pa 0367'18 With Immediate Effect [SB0465 Detail]
Download: Michigan-2017-SB0465-Introduced.html
SENATE BILL No. 465
June 15, 2017, Introduced by Senators BOOHER, PROOS, NOFS, JONES, MACGREGOR and HERTEL and referred to the Committee on Banking and Financial Institutions.
A bill to amend 1980 PA 497, entitled
"Construction lien act,"
by amending sections 104, 106, 108, 108a, 109, 112, and 119 (MCL
570.1104, 570.1106, 570.1108, 570.1108a, 570.1109, 570.1112, and
570.1119), sections 104 and 106 as amended by 2010 PA 147 and
sections 108, 109, and 119 as amended and section 108a as added by
1982 PA 17, and by adding sections 107a and 107b; and to repeal
acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 104. (1) "Court" means the circuit court in which an
2 action to enforce a construction lien through foreclosure is
3 pending.
4 (2) "Design professional" means an individual who is licensed
5 or registered as an architect, professional engineer, or
6 professional surveyor under article 20 of the occupational code,
1 1980 PA 299, MCL 339.2001 to 339.2014, or a corporation,
2 partnership, limited liability company, or other legal entity that
3 is authorized under article 20 of the occupational code, 1980 PA
4 299, MCL 339.2001 to 339.2014, to engage in the practice of any of
5 these professions.
6 (3) (2) "Designee"
means the a person named by an owner or
7 lessee to receive, on behalf of the owner or lessee, all notices or
8 other instruments required to be furnished under this act. The
9 owner or lessee may name himself or herself as designee. The owner
10 or lessee may not name the contractor as designee. However, a
11 contractor who is providing only architectural or engineering
12 services may be named as designee.
13 (4) (3) "Fringe
benefits and withholdings" means compensation
14 due an employee pursuant to a written contract or written policy
15 for holiday, time off for sickness or injury, time off for personal
16 reasons or vacation, bonuses, authorized expenses incurred during
17 the course of employment, and any other contributions made to or on
18 behalf of an employee.
19 (5) (4) "General
contractor" means a contractor who contracts
20 with an owner or lessee to provide, directly or indirectly through
21 contracts with subcontractors, suppliers, or laborers,
22 substantially all of the improvements to the property described in
23 the notice of commencement.
24 (6) (5) "Improvement"
means the result of labor or material
25 provided by a contractor, subcontractor, supplier, or laborer,
26 including, but not limited to, surveying, engineering and
27 architectural planning, construction management, clearing,
1 demolishing, excavating, filling, building, erecting, constructing,
2 altering, repairing, ornamenting, landscaping, paving, leasing
3 equipment, or and installing or affixing a fixture or material,
4 pursuant to a contract.
5 (7) (6) "Laborer"
means an individual who, pursuant to a
6 contract with a contractor or subcontractor, provides an
7 improvement to real property through the individual's personal
8 labor.
9 Sec. 106. (1) "Person" means an individual, corporation,
10 partnership, sole proprietorship, association, other legal
entity,
11 or any combination thereof.of these.
12 (2) "Professional services" means services that are
13 customarily and legally performed by or under the supervision or
14 responsible control of design professionals in the course of their
15 professional practice, including, but not limited to, programming,
16 planning, surveying, site investigation, analysis, assessment,
17 design, preparation of drawings and specifications, and
18 construction administration services.
19 (3) (2) "Project"
means the aggregate of improvements
20 contracted for by the contracting owner.
21 (4) (3) "Residential
structure" means an individual
22 residential condominium unit or a residential building containing
23 not more than 2 residential units, the land on which it is or will
24 be located, and all appurtenances, in which the owner or lessee
25 contracting for the improvement is residing or will reside upon on
26 completion of the improvement.
27 (5) (4) "Subcontractor"
means a person, other than a laborer
1 or supplier, who pursuant to a contract between himself or herself
2 and a person other than the owner or lessee performs any part of a
3 contractor's contract for an improvement.
4 (6) (5) "Supplier"
means a person who, pursuant to a contract
5 with a contractor or a subcontractor, leases, rents, or in any
6 other manner provides material or equipment that is used in the
7 improvement of real property. Supplier does not include a design
8 professional or a person that has a subcontract with a design
9 professional as described in section 107b.
10 (7) (6) "Wages"
means all earnings of an employee, whether
11 determined on the basis of time, task, piece, commission, or other
12 method of calculation, for labor or services, except fringe
13 benefits and withholdings.
14 Sec. 107a. (1) A design professional who enters into a written
15 contract with an owner, or with a person acting for, on behalf of,
16 or with the consent of the owner, to provide professional services
17 relating to the proposed or actual erection, alteration, repair, or
18 removal of a structure on or other improvement to real property may
19 file a notice for recording with the register of deeds for the
20 county in which the property is located. The notice must be in
21 substantially the following form:
|
22 |
NOTICE OF PROFESSIONAL SERVICES CONTRACT |
|
23 |
Under a written contract dated ___________________ |
|
24 |
between ____________________, owner, and ______________________, |
|
25 |
design professional, the design professional is to furnish or |
|
26 |
has furnished professional services relating to the proposed or |
|
27 |
actual erection, alteration, repair, or removal of a structure |
|
1 |
on or other improvement to real property described as follows: |
|
2 |
Insert description of services |
|
3 |
The legal description of the real property is as follows: |
|
4 |
Insert legal description |
5 (2) A design professional may file a notice under subsection
6 (1) at any time after the written contract is executed regardless
7 of whether the professional services under the written contract
8 have been commenced or completed, and regardless of whether the
9 erection, alteration, repair, or removal of the structure or the
10 other improvement to which the professional services relate has
11 been, or is ever, commenced or completed. However, a design
12 professional shall not file a notice later than 90 days after the
13 design professional, or another person acting by, through, or under
14 the design professional, last performed professional services.
15 Sec. 107b. (1) A person that furnishes professional services
16 under a written subcontract with a design professional who has
17 filed a notice under section 107a, and whose engagement has been
18 approved in writing by or on behalf of the owner of the property,
19 may file for recording with the register of deeds for the county in
20 which the property is located a notice of the subcontract in
21 substantially the following form:
|
22 |
NOTICE OF PROFESSIONAL SERVICES SUBCONTRACT |
|
23 |
Under a written subcontract dated _________________ |
|
24 |
between ________________________________, design professional, |
|
25 |
and ______________________________, as sub-design professional, |
|
26 |
________________________________ is to furnish or has furnished |
|
27 |
professional services relating to the proposed or actual |
|
1 |
erection, alteration, repair, or removal of a structure on or |
|
2 |
other improvement to real property described as follows, which |
|
3 |
services are a portion of the services furnished or to be |
|
4 |
furnished by the design professional under a written original |
|
5 |
contract with ______________________, the owner: |
|
6 |
Insert description of services rendered |
|
7 |
The legal description of the real property is as follows: |
|
8 |
Insert legal description |
|
9 |
At the time of this notice, an account of the subcontract is as |
|
10 |
follows: |
|
11 |
1. Estimated or agreed contract price: ________________ |
|
12 |
2. Approved extra or additional services: __________________ |
|
13 |
3. Payments received: ___________________ |
|
14 |
The regular mailing address of the subcontracting party |
|
15 |
recording or filing this notice is as follows: |
|
16 |
Insert address |
17 (2) A person entitled to file a notice of contract under
18 subsection (1) may file the notice at any time after the execution
19 of the written subcontract regardless of whether the professional
20 services under the written subcontract have been commenced or
21 completed, and regardless of whether the construction, alteration,
22 repair or removal of the structure or the other improvement to
23 which the professional services relate has been, or is ever,
24 commenced or completed. However, the person shall not file the
25 notice later than 90 days after the last day a design professional
26 who is entitled to file a notice under this section or section
27 107a, or any person claiming by, through, or under the design
1 professional, performed professional services for the project.
2 Sec. 108. (1) Before the commencement of any actual physical
3 improvements to real property, the owner or lessee contracting for
4 the improvements shall record in the office of the register of
5 deeds for each county in which the real property to be improved is
6 located a notice of commencement, in the form set forth in this
7 section. If all improvements relate to a single project only 1
8 notice of commencement need be recorded. A subsequent notice of
9 commencement need not be recorded for an improvement to any real
10 property which that
currently has a notice of commencement
recorded
11 in the office of the register of deeds if that the recorded
notice
12 of commencement contains the same information as the subsequent
13 notice of commencement.
14 (2) The A notice of commencement shall required under this
15 section must contain the following information:
16 (a) The legal description of the real property on which the
17 improvement is to be made. A description conforming that conforms
18 to section 212 or 255 of Act No. 288 of the Public Acts of 1967,
19 being sections the
land division act, 1967 PA 288, MCL 560.212
and
20 560.255, of the Michigan Compiled Laws, shall be is a
sufficient
21 legal description.
22 (b) The name, address, and capacity of the owner or lessee of
23 the real property contracting for the improvement.
24 (c) The name and address of the fee owner of the real
25 property, if the person contracting for the improvement is a land
26 contract vendee or lessee.
27 (d) The name and address of the owner's or lessee's designee.
1 (e) The name and address of the general contractor, if any.
2 (f) The following statement:
3 "To lien claimants and subsequent purchasers:
4 Take notice that work is about to commence on an improvement
5 to the real property described in this instrument. A person having
6 that has a construction lien may preserve the lien by providing a
7 notice of furnishing to the above named designee named above and
8 the general contractor, if any, and by timely recording a claim of
9 lien, in accordance with law.
10 A person having that
has a construction lien arising by
virtue
11 because of work performed on this improvement should refer to the
12 name of the owner or lessee and the legal description appearing
13 that appears in this notice.
A person that subsequently acquiring
14 acquires an interest in the land described is not required to be
15 named in a claim of lien.
16 A copy of this notice with an attached form for notice of
17 furnishing may be obtained upon by making a written request
by
18 certified mail to the above named owner or lessee named above; the
19 designee; or the person with whom you have contracted."
20 (g) The name and address of the person preparing the notice.
21 (h) An affidavit of the owner or lessee or the agent of the
22 owner or lessee which that
verifies the notice.
23 (3) Each A copy of the a notice of commencement shall
required
24 under this section must have a blank notice of furnishing as
25 described in section 109 attached to it. The blank notice of
26 furnishing shall must
be easily detachable from the copy of
the
27 notice and need not be recorded.
1 (4) Incorrect information contained in the a notice
of
2 commencement furnished by or for an owner or lessee shall does not
3 affect adversely the rights of a lien claimant as against the
4 property of that the
owner or lessee.
5 (5) The An owner, lessee, or designee required to record a
6 notice of commencement under this section, within 10 days after the
7 date of mailing of a written request by certified mail from a
8 subcontractor, supplier, or laborer, shall provide a copy of the
9 notice of commencement, together with an attached blank notice
of
10 furnishing form, to the subcontractor, supplier, or laborer.
11 requesting a copy of the notice of commencement.
12 (6) A contractor who has been provided with a notice of
13 commencement from the an
owner, lessee, or designee, within 10
days
14 after the date of mailing of a written request by certified mail
15 from a subcontractor, supplier, or laborer who has a direct
16 contract with the contractor, shall provide a copy of the notice of
17 commencement, together with an attached blank notice of
furnishing
18 form, to the subcontractor, supplier, or laborer. requesting
a copy
19 of the notice of commencement.
20 (7) A subcontractor who has been provided with a notice of
21 commencement from the an
owner, lessee, designee, contractor, or
22 subcontractor, within 10 days after the date of mailing of a
23 written request by certified mail from a subcontractor, supplier,
24 or laborer who has a direct contract with the subcontractor, shall
25 provide a copy of the notice of commencement, together with an
26 attached blank notice of furnishing form, to the requesting
27 subcontractor, supplier, or laborer. requesting a copy of
the
1 notice of commencement.
2 (8) The An owner, lessee, or designee required to record a
3 notice of commencement under this section shall post and keep
4 posted a copy of the notice of commencement in a conspicuous place
5 on the real property described in the notice during the course of
6 the actual physical improvement to the real property.
7 (9) The An owner, lessee, or designee required to record a
8 notice of commencement under this section shall provide a copy of
9 the notice of commencement to the general contractor, if any.
10 Failure of the An owner, lessee, or designee that fails to provide
11 the notice of commencement to the general contractor shall render
12 the owner or lessee is
liable to the general contractor for
all
13 actual expenses sustained by the general contractor in obtaining
14 the information otherwise provided by the notice of commencement.
15 (10) Failure of the an owner, lessee, or
designee to record
16 the a notice of commencement , in accordance with as required by
17 this section , shall operate to extend extends the
time within
18 which a subcontractor or supplier may provide a notice of
19 furnishing, as described in section 109, until 20 days after the
20 notice of commencement has been recorded.
21 (11) Failure of the an owner, lessee, or
designee to provide,
22 upon on written request, the a notice
of commencement , in
23 accordance with as
required by this section ,
shall operate to
24 extend extends the time within which a subcontractor or supplier
25 may provide a notice of furnishing, as described in section 109,
26 until 20 days after the notice of commencement actually has been
27 furnished to the subcontractor or supplier.
1 (12) Failure of the an owner, lessee, or
designee to record
2 the a notice of commencement , in accordance with as required by
3 this section , shall operate to extend extends the
time within
4 which a laborer may provide a notice of furnishing, as described in
5 section 109, until 30 days after the notice of commencement has
6 been recorded, or until the time in which to provide the notice of
7 furnishing in accordance with section 109 expires, whichever is
8 later.
9 (13) Failure of the an owner, lessee, or
designee to provide
10 the a notice of commencement , in accordance with as required by
11 this section , shall operate to extend extends the
time within
12 which a laborer may provide a notice of furnishing, as described in
13 section 109, until 30 days after the notice of commencement has
14 been provided, or until the time in which to provide the notice of
15 furnishing in accordance with section 109 expires, whichever is
16 later.
17 (14) Failure of the An owner, lessee, or
designee that fails
18 to post or keep posted a copy of the a notice
of commencement as
19 provided in required
by subsection (8) shall render the
owner or
20 lessee is liable to a subcontractor, supplier, or laborer who
21 becomes a lien claimant for all actual expenses sustained by the
22 lien claimant in obtaining the information otherwise provided by
23 the posting.
24 (15) Failure of a A
contractor , who has been provided with a
25 notice of commencement from the an owner, lessee, or
designee, who
26 fails to provide the notice
of commencement upon on the request of
27 a lien claimant who has a direct contract with the contractor for
1 an improvement to the property shall render the contractor is
2 liable to the lien claimant for all actual expenses sustained by
3 the lien claimant in obtaining the information otherwise provided
4 by the notice of commencement.
5 (16) Failure of a A
subcontractor , who has been provided with
6 a notice of commencement from the an owner, lessee, designee,
7 contractor, or subcontractor who fails to provide the notice of
8 commencement upon on
the request of a subcontractor,
supplier, or
9 laborer who has a direct contract with the subcontractor shall
10 render the subcontractor is
liable to such the requesting
11 subcontractor, supplier, or laborer for all actual expenses
12 sustained by the subcontractor, supplier, or laborer in obtaining
13 the information otherwise provided by the notice of commencement.
14 (17) If the owner, lessee, or designee fails to provide,
15 record, and post the notice of commencement as provided in this act
16 and if, after the first actual physical improvement, the
contractor
17 by certified mail makes a written request to the owner, lessee, or
18 designee to provide, record, and post the notice of commencement
19 and the owner, lessee, or designee fails within 10 days after
20 receipt of the request to do so, the owner or lessee shall be is
21 barred from requiring the contractor to hold the owner or lessee
22 harmless from liens the
lien of a lien claimants claimant to
the
23 extent such the lien claims could have otherwise been avoided
24 through proper payment , had such
the request been complied with.
25 If the contractor pays a valid lien claim at the direction of the
26 owner, lessee, or designee after the owner, lessee, or designee has
27 failed to comply with this section, the owner or lessee shall be is
1 liable to the contractor to the extent the lien claim could have
2 otherwise been avoided through proper payment had such the request
3 been complied with. This subsection shall does not
apply if the
4 name of the lien claimant appears on a sworn statement provided to
5 the contractor and the claim of the lien claimant appearing on the
6 sworn statement could have
been avoided had payment been made in
7 accordance with the sworn statement.
8 (18) This section shall does not apply to an
improvement to a
9 residential structure.
10 Sec. 108a. (1) An owner or lessee contracting who contracts
11 for an improvement to a residential structure shall prepare and
12 provide a notice of commencement to a contractor, subcontractor,
13 supplier, or laborer who has made a written request for the notice
14 pursuant to as
provided in this section.
15 (2) The A notice of commencement shall required under this
16 section must contain the following information:
17 (a) The legal description of the real property on which the
18 improvement is to be made. A description conforming that conforms
19 to section 212 or 255 of Act No. 288 of the Public Acts of 1967,
20 being sections the
land division act, 1967 PA 288, MCL 560.212
and
21 560.255, of the Michigan Compiled Laws, shall be is a
sufficient
22 legal description.
23 (b) The name, address, and capacity of the owner or lessee of
24 the real property contracting for the improvement.
25 (c) The name and address of the fee owner of the real
26 property, if the person contracting for the improvement is a land
27 contract vendee or lessee.
1 (d) The name and address of the owner's or lessee's designee.
2 (e) The name and address of the general contractor, if any.
3 The notice of commencement form shall must contain
the following
4 caption below the line for the general contractor's name and
5 address: (the name of the person with whom you have contracted to
6 provide substantially all the improvements to the property.)
7 (f) The following statement in boldface type on the front of
8 the form:
9 WARNING TO HOMEOWNER
10 Michigan law requires that you do the following:
11 1. Complete and return this form to the person who asked for
12 it within 10 days after the date of the postmark on the request.
13 2. If you do not complete and return this form within the 10
14 days you may have to pay the expenses incurred in getting the
15 information.
16 3. If you do not live at the site of the improvement, you must
17 post a copy of this form in a conspicuous place at that site.
18 You are not required to but should do the following:
19 1. Complete and post a copy of this form at the place where
20 the improvement is being made, even if you live there.
21 2. Make and keep a copy of this form for your own records.
22 (g) The following statement:
23 "To lien claimants and subsequent purchasers:
24 Take notice that work is about to commence on an improvement
25 to the real property described in this instrument. A person having
26 that has a construction lien may preserve the lien by providing a
27 notice of furnishing to the above named designee named above and
1 the general contractor, if any, and by timely recording a claim of
2 lien, in accordance with law.
3 A person having that
has a construction lien arising by
virtue
4 because of work performed on this improvement should refer to the
5 name of the owner or lessee and the legal description appearing in
6 this notice. A person subsequently acquiring that subsequently
7 acquires an interest in the land described is not required to be
8 named in a claim of lien.
9 A copy of this notice with an attached form for notice of
10 furnishing may be obtained upon on making a written request
by
11 certified mail to the above named owner or lessee named above; the
12 designee; or the person with whom you have contracted."
13 (h) The name and address of the person preparing the notice.
14 (i) An affidavit of the owner or lessee or the agent of the
15 owner or lessee which that
verifies the notice.
16 (3) Each A copy of the a notice of commencement shall
required
17 under this section must have a blank notice of furnishing as
18 described in section 109 attached to it. The blank notice of
19 furnishing shall must
be easily detachable from the copy of
the
20 notice and need not be recorded.
21 (4) Incorrect information contained in the a notice
of
22 commencement furnished by or for an owner or lessee shall under
23 this section does not affect adversely the rights of a lien
24 claimant as against the property of that the owner
or lessee.
25 (5) The An owner, lessee, or designee required to provide a
26 notice of commencement under this section, within 10 days after the
27 date of mailing of a written request by certified mail from a
1 contractor, subcontractor, supplier, or laborer, shall prepare and
2 provide a copy of the notice of commencement, together with an
3 attached blank notice of furnishing form, to the contractor,
4 subcontractor, supplier, or laborer. requesting a copy of
the
5 notice of commencement. A
contractor, subcontractor, supplier, or
6 laborer who requests a notice of commencement from an owner or
7 lessee of a residential structure shall supply a blank notice of
8 commencement form together with the attached blank notice of
9 furnishing to the owner or lessee at the time the request is made.
10 (6) A contractor who has been provided with a notice of
11 commencement under this section from the owner, lessee, or
12 designee, within 10 days after the date of mailing of a written
13 request by certified mail from a subcontractor, supplier, or
14 laborer who has a direct contract with the contractor, shall
15 provide a copy of the notice of commencement, together with an
16 attached blank notice of furnishing form, to the subcontractor,
17 supplier, or laborer. requesting a copy of the notice of
18 commencement. If the
contractor has not been provided a notice of
19 commencement, the contractor shall provide such the subcontractor,
20 supplier, or laborer the name and address of the owner or lessee.
21 (7) A subcontractor who has been provided with a notice of
22 commencement under this section from the owner, lessee, designee,
23 or contractor, or another subcontractor, within 10 days after the
24 date of mailing of a written request by certified mail from a
25 subcontractor, supplier, or laborer who has a direct contract with
26 the subcontractor, shall provide a copy of the notice of
27 commencement, together with an attached blank notice of
furnishing
1 form, to the requesting subcontractor, supplier, or laborer.
2 requesting a copy of the notice of commencement. If the
3 subcontractor has not been provided a notice of commencement, the
4 subcontractor shall provide to such the requesting subcontractor,
5 supplier, or laborer, the name and address of the owner or lessee.
6 (8) If the an
owner, lessee, or designee has received
a blank
7 notice of commencement form pursuant to under subsection
(5) and if
8 the owner or lessee does not currently reside at the real property
9 described in the notice of commencement, the owner, lessee, or
10 designee shall post a copy of the notice of commencement in a
11 conspicuous place on the real property during the course of the
12 actual physical improvement
to the real property.
13 (9) Failure of the an owner, lessee, or
designee to provide,
14 upon on written request, the a notice
of commencement , in
15 accordance with as
required by this section ,
shall operate to
16 extend extends the time within which a subcontractor or supplier
17 may provide a notice of furnishing, as described in section 109,
18 until 20 days after the notice of commencement actually has been
19 furnished to the subcontractor or laborer.
20 (10) Failure of the an owner, lessee, or designee
to provide
21 the a notice of commencement , in accordance with as required by
22 this section , shall operate to extend extends the
time within
23 which a laborer may provide a notice of furnishing, as described in
24 section 109, until 30 days after the notice of commencement
25 actually has been furnished to the laborer, or until the time in
26 which to provide the notice of furnishing in accordance with
27 section 109 expires, whichever is later.
1 (11) Failure of the An owner, lessee, or
designee that fails
2 to post or keep posted a copy of the a notice
of commencement as
3 provided in required
by subsection (8) shall render the
owner or
4 lessee is liable to a subcontractor, supplier, or laborer who
5 becomes a lien claimant for all actual expenses sustained by the
6 lien claimant in obtaining the information otherwise provided by
7 the posting.
8 (12) Failure of a A
contractor ,
who that has been provided
9 with a notice of commencement from the owner, lessee, or designee ,
10 and that fails to provide
the notice of commencement upon on
the
11 request of a lien claimant who that has a contract with the
12 contractor for an improvement to the property shall render the
13 contractor is liable to the lien claimant for all actual expenses
14 sustained by the lien claimant in obtaining the information
15 otherwise provided by the notice of commencement. Failure of a A
16 contractor that fails to provide the name and address of the owner
17 or lessee in accordance with as required by subsection
(6) shall
18 render the contractor is
liable to the lien claimant for all
actual
19 expenses sustained by the lien claimant in obtaining the name and
20 address of the owner or lessee.
21 (13) Failure of a A
subcontractor ,
who that has been provided
22 with a notice of commencement from the owner, lessee, designee,
23 contractor, or subcontractor
, and that fails to provide
the notice
24 of commencement upon on
the request of a subcontractor,
supplier,
25 or laborer who has a direct contract with the subcontractor shall
26 render the subcontractor is
liable to such the subcontractor,
27 supplier, or laborer for all actual expenses sustained by the
1 subcontractor, supplier, or laborer in obtaining the information
2 otherwise provided by the notice of commencement. Failure of a A
3 subcontractor that fails to provide the name and address of the
4 owner or lessee in accordance with as required by subsection (6)
5 shall render the subcontractor (7) is liable to the lien
claimant
6 for all actual expenses sustained by the lien claimant in obtaining
7 the name and address of the owner or lessee.
8 (14) This section shall only apply applies to
an improvement
9 to a residential structure.
10 Sec. 109. (1) Except as otherwise provided in sections 108 ,
11 and 108a, and 301, a
subcontractor or supplier who that
contracts
12 to provide an improvement to real property shall provide a notice
13 of furnishing to the designee and the general contractor, if any,
14 as named in the notice of commencement at the address shown in the
15 notice of commencement, either personally or by certified mail,
16 within 20 days after furnishing the first labor or material. If a
17 designee has not been named in the notice of commencement, or if
18 the designee has died, service shall must be
made upon on the owner
19 or lessee named in the notice of commencement. If service of the
20 notice of furnishing is made by certified mail, service is complete
21 upon on mailing. A contractor is not required to provide a
notice
22 of furnishing to preserve lien rights arising from his or her
23 contract directly with an owner or lessee.
24 (2) Except as otherwise provided in sections 108 and 108a, a
25 laborer who contracts to provide an improvement to real property
26 shall provide a notice of furnishing to the designee and the
27 general contractor, if any, as named in the notice of commencement
1 at the address shown in the notice of commencement, either
2 personally or by mail, within 30 days after wages were
3 contractually due but were not paid. If a designee has not been
4 named in the notice of commencement, or if the designee has died,
5 service shall must
be made upon on the
owner or lessee named in the
6 notice of commencement. If service of the notice of furnishing is
7 made by mail, service is complete upon on mailing
by first-class
8 mail with postage prepaid.
9 (3) Except as otherwise provided in sections 108 and 108a, a
10 laborer who provides an improvement to real property shall provide
11 a notice of furnishing to the designee and the general contractor,
12 if any, named in the notice of commencement at the address shown in
13 the notice of commencement, either personally or by certified mail,
14 by the fifth day of the second month following the month in which
15 fringe benefits or withholdings from wages were contractually due
16 but were not paid. If a designee has not been named in the notice
17 of commencement, or if the designee has died, service shall must be
18 made upon on the owner or lessee named in the notice of
19 commencement. If service of the notice of furnishing is made by
20 certified mail, service is complete upon on mailing.
21 (4) The A notice of furnishing, if not given on the form
22 attached to the notice of commencement, shall must be
in
23 substantially the following form:
|
24 |
NOTICE OF FURNISHING |
|
25 |
To: ............................................................... |
|
26 |
(name of designee (or owner or lessee) from notice of commencement) |
|
27 |
............................................................... |
|
1 |
(address from notice of commencement) |
|
2 |
Please take notice that the undersigned is furnishing to .......... |
|
3 |
.................................................................... |
|
4 |
(name and address of other contracting party) |
|
5 |
certain labor or material for ................................... , |
|
6 |
(describe type of work) |
|
7 |
in connection with the improvements to the real property described |
|
8 |
in the notice of commencement recorded in liber .............. , on |
|
9 |
page ...... , .............................................records, |
|
10 |
(name of county) |
|
11 |
................................................................. . |
|
12 |
or (a copy of which is attached |
|
13 |
WARNING TO OWNER: THIS NOTICE IS REQUIRED BY THE MICHIGAN |
|
14 |
CONSTRUCTION LIEN ACT. IF YOU HAVE QUESTIONS ABOUT YOUR RIGHTS |
|
15 |
AND DUTIES UNDER THIS ACT, YOU SHOULD CONTACT AN ATTORNEY TO |
|
16 |
PROTECT YOU FROM THE POSSIBILITY OF PAYING TWICE FOR THE |
|
17 |
IMPROVEMENTS TO YOUR PROPERTY. |
|
18 |
...................................... |
|
19 |
(name and address of lien claimant) |
|
20 |
by ................................... |
|
21 |
(name and capacity of party |
|
22 |
signing for lien claimant) |
|
23 |
....................................... |
|
24 |
(address of party signing) |
|
25 |
Date: ...................... . |
26 (5) The failure of a lien claimant to provide a notice of
27 furnishing within the time specified in this section shall does not
1 defeat the lien claimant's right to a construction lien for work
2 performed or materials furnished by the lien claimant after the
3 service of the notice of furnishing.
4 (6) The failure of a lien claimant, to provide a notice of
5 furnishing within the time specified in this section shall does not
6 defeat the lien claimant's right to a construction lien for work
7 performed or materials furnished by the lien claimant before the
8 service of the notice of furnishing except to the extent that
9 payments were made by or on behalf of the owner or lessee to the
10 contractor pursuant to either a contractor's sworn statement or a
11 waiver of lien in accordance with this act for work performed or
12 material delivered by the lien claimant. This subsection does not
13 apply to a laborer.
14 (7) The failure of a laborer to provide a notice of furnishing
15 to the designee as required by subsection (2) shall defeat defeats
16 the laborer's lien for those the wages for which the
notice of
17 furnishing is required.
18 (8) The failure of a laborer to provide a notice of furnishing
19 to the designee as required by subsection (3) shall defeat defeats
20 the laborer's lien for those the fringe benefits and
withholdings
21 for which the notice of furnishing is required.
22 (9) The failure of a laborer to provide a notice of furnishing
23 to the general contractor within the time specified in subsection
24 (2) or (3) shall does
not defeat the laborer's right to a
25 construction lien, but the laborer shall be is liable
for any
26 actual damages sustained by the general contractor as a result of
27 the failure.
1 (10) One or more laborers may authorize an agent to prepare
2 and serve a notice of furnishing in the manner provided in this
3 section. Notice of furnishing under this section may contain the
4 notice of furnishing of more than 1 laborer and shall must contain
5 the information required in susbsection by subsection (4) as to
6 each laborer for whom it is prepared. The A court shall consider
7 the notice of furnishing of each lien claimant under this
8 subsection shall be considered by the court on its own merits.
9 Sec. 112. (1) If a notice of professional services contract,
10 notice of professional services subcontract, notice of
11 commencement, claim of lien, certificate of discharge of lien, or a
12 certificate of a county clerk that no proceedings to enforce a
13 statement or claim of construction
lien have been commenced within
14 the period provided by law is recorded in the office of a register
15 of deeds, the register shall endorse thereon on the instrument the
16 date of its recording and shall properly index the instrument.
17 (2) The fee for recording an instrument described in
18 subsection (1) shall be is
the same as the fee that is provided by
19 law for the recording of a real estate mortgage.
20 (3) The recording of a notice of professional services
21 contract, notice of professional services subcontract, notice of
22 commencement, or a claim of lien shall operate operates as
23 constructive notice to subsequent purchasers or encumbrancers in
24 the same manner as the recording of a real estate mortgage.
25 Sec. 119. (1) Except as otherwise provided by subsection (4),
26 as between parties entitled to claim construction liens under this
27 act, their claims of lien shall be treated as having the liens have
1 equal priority.
2 (2) A construction lien under this act shall take has priority
3 over all garnishments for the contract debt made after commencement
4 of the first actual physical improvement, or, if the construction
5 lien is a lien of a design professional that recorded a notice
6 under section 107a or 107b, after the notice was recorded, without
7 regard to the date of recording of the claim of lien.
8 (3) A construction lien arising under this act shall take has
9 priority over all other interests, liens, or encumbrances which
10 that may attach to the
building, structure, or improvement, or upon
11 on the real property on which the building, structure, or
12 improvement is erected, when if the other interests,
liens, or
13 encumbrances are recorded subsequent to after the
first actual
14 physical improvement, or, if the construction lien is a lien of a
15 design professional that recorded a notice under section 107a or
16 107b, after the notice was recorded.
17 (4) A mortgage, lien, encumbrance, or other interest recorded
18 before the first actual physical improvement to real property,
19 shall have or, if the
construction lien is a lien of a design
20 professional that recorded a notice under section 107a or 107b,
21 before the notice was recorded, has priority over a construction
22 lien arising under this act. The priority of the mortgage shall
23 exist exists as to all obligations secured by the mortgage except
24 for indebtedness arising out of advances made subsequent to after
25 the first actual physical improvement, or, if the construction lien
26 is a lien of a design professional that recorded a notice under
27 section 107a or 107b, after the notice was recorded. An advance
1 made pursuant to the mortgage, but subsequent to the first actual
2 physical improvement, shall have or, if the construction lien is a
3 lien of a design professional that recorded a notice under section
4 107a or 107b, after the notice was recorded, has priority over a
5 construction lien if, for that advance, the mortgagee has received
6 a contractor's sworn statement as provided in section 110, has made
7 disbursements pursuant to the contractor's sworn statement, and has
8 received waivers of lien from the contractor and all
9 subcontractors, laborers, and suppliers who have provided notices
10 of furnishing. The construction lien of any a lien
claimant not set
11 forth on the sworn statement upon on which an advance was made
12 shall be is subordinate to the lien of the mortgage, including
the
13 advance, unless prior to before the advance the lien
claimant has
14 provided the designee with a notice of furnishing if required by
15 section 109 or has recorded a claim of lien. Any An advance
made
16 after a notice of furnishing has been provided or has been excused
17 as provided in sections 108, 108a, and 109 or after a claim of lien
18 has been recorded shall be is subordinate to the
construction lien
19 of that the lien claimant unless prior to before the
advance the
20 mortgagee has received from that the lien
claimant either a full
21 unconditional waiver of lien or a partial unconditional waiver of
22 lien for the full amount due the lien claimant as of the date
23 through which the lien is waived as shown on the lien waiver and
24 the date through which the lien is waived as shown on the partial
25 unconditional waiver is within 30 days prior to before the
advance.
26 (5) For purposes of this section, retainage which that is
not
27 payable under a contract until the happening of a certain event
1 happens in addition to the
providing of an improvement
being
2 provided, is not due as of
the date of the providing of the
3 improvement is provided.
4 Enacting section 1. Section 301 of the construction lien act,
5 1980 PA 497, MCL 570.1301, is repealed.
