Bill Text: MI SB0465 | 2017-2018 | 99th Legislature | Engrossed
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-Engrossed.html
SB-0465, As Passed Senate, May 22, 2018
SUBSTITUTE FOR
SENATE BILL NO. 465
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
1 professional surveyor under article 20 of the occupational code,
2 1980 PA 299, MCL 339.2001 to 339.2014, or a corporation,
3 partnership, limited liability company, or other legal entity that
4 is authorized under article 20 of the occupational code, 1980 PA
5 299, MCL 339.2001 to 339.2014, to engage in the practice of any of
6 these professions.
7 (3) (2) "Designee"
means the a person named by an owner or
8 lessee to receive, on behalf of the owner or lessee, all notices or
9 other instruments required to be furnished under this act. The
10 owner or lessee may name himself or herself as designee. The owner
11 or lessee may not name the contractor as designee. However, a
12 contractor who is providing only architectural or engineering
13 services may be named as designee.
14 (4) (3) "Fringe
benefits and withholdings" means compensation
15 due an employee pursuant to a written contract or written policy
16 for holiday, time off for sickness or injury, time off for personal
17 reasons or vacation, bonuses, authorized expenses incurred during
18 the course of employment, and any other contributions made to or on
19 behalf of an employee.
20 (5) (4) "General
contractor" means a contractor who contracts
21 with an owner or lessee to provide, directly or indirectly through
22 contracts with subcontractors, suppliers, or laborers,
23 substantially all of the improvements to the property described in
24 the notice of commencement.
25 (6) (5) "Improvement"
means the result of labor or material
26 provided by a contractor, subcontractor, supplier, or laborer,
27 including, but not limited to, surveying, engineering and
1 architectural planning, construction management, clearing,
2 demolishing, excavating, filling, building, erecting, constructing,
3 altering, repairing, ornamenting, landscaping, paving, leasing
4 equipment, or and installing or affixing a fixture or material,
5 pursuant to a contract.
6 (7) (6) "Laborer"
means an individual who, pursuant to a
7 contract with a contractor or subcontractor, provides an
8 improvement to real property through the individual's personal
9 labor.
10 Sec. 106. (1) "Person" means an individual, corporation,
11 partnership, sole proprietorship, association, other legal
entity,
12 or any combination thereof.of these.
13 (2) "Professional services" means services that are
14 customarily and legally performed by or under the supervision or
15 responsible control of design professionals in the course of their
16 professional practice, including, but not limited to, programming,
17 planning, surveying, site investigation, analysis, assessment,
18 design, preparation of drawings and specifications, and
19 construction administration services.
20 (3) (2) "Project"
means the aggregate of improvements
21 contracted for by the contracting owner.
22 (4) (3) "Residential
structure" means an individual
23 residential condominium unit or a residential building containing
24 not more than 2 residential units, the land on which it is or will
25 be located, and all appurtenances, in which the owner or lessee
26 contracting for the improvement is residing or will reside upon on
27 completion of the improvement.
1 (5) (4) "Subcontractor"
means a person, other than a laborer
2 or supplier, who pursuant to a contract between himself or herself
3 and a person other than the owner or lessee performs any part of a
4 contractor's contract for an improvement.
5 (6) (5) "Supplier"
means a person who, pursuant to a contract
6 with a contractor or a subcontractor, leases, rents, or in any
7 other manner provides material or equipment that is used in the
8 improvement of real property. Supplier does not include a design
9 professional or a person that has a subcontract with a design
10 professional as described in section 107b.
11 (7) (6) "Wages"
means all earnings of an employee, whether
12 determined on the basis of time, task, piece, commission, or other
13 method of calculation, for labor or services, except fringe
14 benefits and withholdings.
15 Sec. 107a. (1) A design professional who enters into a written
16 contract with an owner, or with a person acting for, on behalf of,
17 or with the consent of the owner, to provide professional services
18 relating to the proposed or actual erection, alteration, repair, or
19 removal of a structure on or other improvement to real property may
20 record a notice with the register of deeds for the county in which
21 the property is located. The notice must be in substantially the
22 following form:
|
23 |
NOTICE OF PROFESSIONAL SERVICES CONTRACT |
|
24 |
Under a written contract dated ___________________ |
|
25 |
between ____________________, owner, and ______________________, |
|
26 |
design professional, the design professional is to furnish or |
|
27 |
has furnished professional services relating to the proposed or |
|
1 |
actual erection, alteration, repair, or removal of a structure |
|
2 |
on or other improvement to real property described as follows: |
|
3 |
Insert description of services |
|
4 |
The legal description of the real property is as follows: |
|
5 |
Insert legal description |
6 (2) A design professional may record a notice under subsection
7 (1) at any time after the written contract is executed regardless
8 of whether the professional services under the written contract
9 have been commenced or completed, and regardless of whether the
10 erection, alteration, repair, or removal of the structure or the
11 other improvement to which the professional services relate has
12 been, or is ever, commenced or completed. However, a design
13 professional shall not record a notice later than 90 days after the
14 design professional, or another person acting by, through, or under
15 the design professional, last performed professional services.
16 (3) A notice under this section is valid for 1 year after the
17 date it is recorded. The design professional may record a
18 subsequent notice with respect to the written contract. All of the
19 requirements of this section, including the time limitation of
20 subsection (2), apply to a subsequent notice.
21 (4) If an actual physical improvement is made to the property
22 after a notice is recorded under this section, the notice is only
23 effective from the date of the first actual physical improvement.
24 (5) This section, or the recording of a notice under this
25 section, does not affect the requirements of this act regarding the
26 creation of a construction lien, including requirements of section
27 107, the steps necessary to claim a lien, or the manner of
1 enforcing a lien.
2 Sec. 107b. (1) A person that furnishes professional services
3 under a written subcontract with a design professional who has
4 recorded a notice under section 107a, and whose engagement has been
5 approved in writing by or on behalf of the owner of the property,
6 may record with the register of deeds for the county in which the
7 property is located a notice of the subcontract in substantially
8 the following form:
|
9 |
NOTICE OF PROFESSIONAL SERVICES SUBCONTRACT |
|
10 |
Under a written subcontract dated _________________ |
|
11 |
between ________________________________, design professional, |
|
12 |
and ______________________________, as sub-design professional, |
|
13 |
________________________________ is to furnish or has furnished |
|
14 |
professional services relating to the proposed or actual |
|
15 |
erection, alteration, repair, or removal of a structure on or |
|
16 |
other improvement to real property described as follows, which |
|
17 |
services are a portion of the services furnished or to be |
|
18 |
furnished by the design professional under a written original |
|
19 |
contract with ______________________, the owner: |
|
20 |
Insert description of services rendered |
|
21 |
The legal description of the real property is as follows: |
|
22 |
Insert legal description |
|
23 |
At the time of this notice, an account of the subcontract is as |
|
24 |
follows: |
|
25 |
1. Estimated or agreed contract price: ________________ |
|
26 |
2. Approved extra or additional services: __________________ |
|
27 |
3. Payments received: ___________________ |
|
1 |
The regular mailing address of the subcontracting party |
|
2 |
recording this notice is as follows: |
|
3 |
Insert address |
4 (2) A person entitled to record a notice of contract under
5 subsection (1) may record the notice at any time after the
6 execution of the written subcontract regardless of whether the
7 professional services under the written subcontract have been
8 commenced or completed, and regardless of whether the construction,
9 alteration, repair, or removal of the structure or the other
10 improvement to which the professional services relate has been, or
11 is ever, commenced or completed. However, the person shall not
12 record the notice later than 90 days after the last day a design
13 professional who is entitled to record a notice under this section
14 or section 107a, or any person claiming by, through, or under the
15 design professional, performed professional services for the
16 project.
17 (3) A notice under this section is valid for 1 year after the
18 date it is recorded. The person furnishing professional services
19 under the written contract with a design professional may record a
20 subsequent notice with respect to the written contract. All of the
21 requirements of this section, including the time limitation of
22 subsection (2), apply to a subsequent notice.
23 (4) If an actual physical improvement is made to the property
24 after a notice is recorded under this section, the notice is only
25 effective from the date of the first actual physical improvement.
26 (5) This section, or the recording of a notice under this
27 section, does not affect the requirements of this act regarding the
1 creation of a construction lien, including requirements of section
2 107, the steps necessary to claim a lien, or the manner of
3 enforcing a lien.
4 Sec. 108. (1) Before the commencement of any actual physical
5 improvements to real property, the owner or lessee contracting for
6 the improvements shall record in the office of the register of
7 deeds for each county in which the real property to be improved is
8 located a notice of commencement, in the form set forth in this
9 section. If all improvements relate to a single project only 1
10 notice of commencement need be recorded. A subsequent notice of
11 commencement need not be recorded for an improvement to any real
12 property which that
currently has a notice of commencement
recorded
13 in the office of the register of deeds if that the recorded
notice
14 of commencement contains the same information as the subsequent
15 notice of commencement.
16 (2) The A notice of commencement shall required under this
17 section must contain the following information:
18 (a) The legal description of the real property on which the
19 improvement is to be made. A description conforming that conforms
20 to section 212 or 255 of Act No. 288 of the Public Acts of 1967,
21 being sections the
land division act, 1967 PA 288, MCL 560.212
and
22 560.255, of the Michigan Compiled Laws, shall be is a
sufficient
23 legal description.
24 (b) The name, address, and capacity of the owner or lessee of
25 the real property contracting for the improvement.
26 (c) The name and address of the fee owner of the real
27 property, if the person contracting for the improvement is a land
1 contract vendee or lessee.
2 (d) The name and address of the owner's or lessee's designee.
3 (e) The name and address of the general contractor, if any.
4 (f) The following statement:
5 "To lien claimants and subsequent purchasers:
6 Take notice that work is about to commence on an improvement
7 to the real property described in this instrument. A person having
8 that has a construction lien may preserve the lien by providing a
9 notice of furnishing to the above named designee named above and
10 the general contractor, if any, and by timely recording a claim of
11 lien, in accordance with law.
12 A person having that
has a construction lien arising by
virtue
13 because of work performed on this improvement should refer to the
14 name of the owner or lessee and the legal description appearing
15 that appears in this notice.
A person that subsequently acquiring
16 acquires an interest in the land described is not required to be
17 named in a claim of lien.
18 A copy of this notice with an attached form for notice of
19 furnishing may be obtained upon by making a written request
by
20 certified mail to the above named owner or lessee named above; the
21 designee; or the person with whom you have contracted."
22 (g) The name and address of the person preparing the notice.
23 (h) An affidavit of the owner or lessee or the agent of the
24 owner or lessee which that
verifies the notice.
25 (3) Each A copy of the a notice of commencement shall
required
26 under this section must have a blank notice of furnishing as
27 described in section 109 attached to it. The blank notice of
1 furnishing shall must
be easily detachable from the copy of
the
2 notice and need not be recorded.
3 (4) Incorrect information contained in the a notice
of
4 commencement furnished by or for an owner or lessee shall does not
5 affect adversely the rights of a lien claimant as against the
6 property of that the
owner or lessee.
7 (5) The An owner, lessee, or designee required to record a
8 notice of commencement under this section, within 10 days after the
9 date of mailing of a written request by certified mail from a
10 subcontractor, supplier, or laborer, shall provide a copy of the
11 notice of commencement, together with an attached blank notice
of
12 furnishing form, to the subcontractor, supplier, or laborer.
13 requesting a copy of the notice of commencement.
14 (6) A contractor who has been provided with a notice of
15 commencement from the an
owner, lessee, or designee, within 10
days
16 after the date of mailing of a written request by certified mail
17 from a subcontractor, supplier, or laborer who has a direct
18 contract with the contractor, shall provide a copy of the notice of
19 commencement, together with an attached blank notice of
furnishing
20 form, to the subcontractor, supplier, or laborer. requesting
a copy
21 of the notice of commencement.
22 (7) A subcontractor who has been provided with a notice of
23 commencement from the an
owner, lessee, designee, contractor, or
24 subcontractor, within 10 days after the date of mailing of a
25 written request by certified mail from a subcontractor, supplier,
26 or laborer who has a direct contract with the subcontractor, shall
27 provide a copy of the notice of commencement, together with an
1 attached blank notice of furnishing form, to the requesting
2 subcontractor, supplier, or laborer. requesting a copy of
the
3 notice of commencement.
4 (8) The An owner, lessee, or designee required to record a
5 notice of commencement under this section shall post and keep
6 posted a copy of the notice of commencement in a conspicuous place
7 on the real property described in the notice during the course of
8 the actual physical improvement to the real property.
9 (9) The An owner, lessee, or designee required to record a
10 notice of commencement under this section shall provide a copy of
11 the notice of commencement to the general contractor, if any.
12 Failure of the An owner, lessee, or designee that fails to provide
13 the notice of commencement to the general contractor shall render
14 the owner or lessee is
liable to the general contractor for
all
15 actual expenses sustained by the general contractor in obtaining
16 the information otherwise provided by the notice of commencement.
17 (10) Failure of the an owner, lessee, or designee
to record
18 the a notice of commencement , in accordance with as required by
19 this section , shall operate to extend extends the
time within
20 which a subcontractor or supplier may provide a notice of
21 furnishing, as described in section 109, until 20 days after the
22 notice of commencement has been recorded.
23 (11) Failure of the an owner, lessee, or
designee to provide,
24 upon on written request, the a notice
of commencement , in
25 accordance with as
required by this section ,
shall operate to
26 extend extends the time within which a subcontractor or supplier
27 may provide a notice of furnishing, as described in section 109,
1 until 20 days after the notice of commencement actually has been
2 furnished to the subcontractor or supplier.
3 (12) Failure of the an owner, lessee, or
designee to record
4 the a notice of commencement , in accordance with as required by
5 this section , shall operate to extend extends the
time within
6 which a laborer may provide a notice of furnishing, as described in
7 section 109, until 30 days after the notice of commencement has
8 been recorded, or until the time in which to provide the notice of
9 furnishing in accordance with section 109 expires, whichever is
10 later.
11 (13) Failure of the an owner, lessee, or
designee to provide
12 the a notice of commencement , in accordance with as required by
13 this section , shall operate to extend extends the
time within
14 which a laborer may provide a notice of furnishing, as described in
15 section 109, until 30 days after the notice of commencement has
16 been provided, or until the time in which to provide the notice of
17 furnishing in accordance with section 109 expires, whichever is
18 later.
19 (14) Failure of the An owner, lessee, or
designee that fails
20 to post or keep posted a copy of the a notice
of commencement as
21 provided in required
by subsection (8) shall render the
owner or
22 lessee is liable to a subcontractor, supplier, or laborer who
23 becomes a lien claimant for all actual expenses sustained by the
24 lien claimant in obtaining the information otherwise provided by
25 the posting.
26 (15) Failure of a A
contractor , who has been provided with a
27 notice of commencement from the an owner, lessee, or
designee, who
1 fails to provide the notice
of commencement upon on the request of
2 a lien claimant who has a direct contract with the contractor for
3 an improvement to the property shall render the contractor is
4 liable to the lien claimant for all actual expenses sustained by
5 the lien claimant in obtaining the information otherwise provided
6 by the notice of commencement.
7 (16) Failure of a A
subcontractor , who has been provided with
8 a notice of commencement from the an owner, lessee, designee,
9 contractor, or subcontractor who fails to provide the notice of
10 commencement upon on
the request of a subcontractor,
supplier, or
11 laborer who has a direct contract with the subcontractor shall
12 render the subcontractor is
liable to such the requesting
13 subcontractor, supplier, or laborer for all actual expenses
14 sustained by the subcontractor, supplier, or laborer in obtaining
15 the information otherwise provided by the notice of commencement.
16 (17) If the owner, lessee, or designee fails to provide,
17 record, and post the notice of commencement as provided in this act
18 and if, after the first actual physical improvement, the
contractor
19 by certified mail makes a written request to the owner, lessee, or
20 designee to provide, record, and post the notice of commencement
21 and the owner, lessee, or designee fails within 10 days after
22 receipt of the request to do so, the owner or lessee shall be is
23 barred from requiring the contractor to hold the owner or lessee
24 harmless from liens the
lien of a lien claimants claimant to
the
25 extent such the lien claims could have otherwise been avoided
26 through proper payment , had such
the request been complied with.
27 If the contractor pays a valid lien claim at the direction of the
1 owner, lessee, or designee after the owner, lessee, or designee has
2 failed to comply with this section, the owner or lessee shall be is
3 liable to the contractor to the extent the lien claim could have
4 otherwise been avoided through proper payment had such the request
5 been complied with. This subsection shall does not
apply if the
6 name of the lien claimant appears on a sworn statement provided to
7 the contractor and the claim of the lien claimant appearing on the
8 sworn statement could have
been avoided had payment been made in
9 accordance with the sworn statement.
10 (18) This section shall does not apply to an
improvement to a
11 residential structure.
12 Sec. 108a. (1) An owner or lessee contracting who contracts
13 for an improvement to a residential structure shall prepare and
14 provide a notice of commencement to a contractor, subcontractor,
15 supplier, or laborer who has made a written request for the notice
16 pursuant to as
provided in this section.
17 (2) The A notice of commencement shall required under this
18 section must contain the following information:
19 (a) The legal description of the real property on which the
20 improvement is to be made. A description conforming that conforms
21 to section 212 or 255 of Act No. 288 of the Public Acts of 1967,
22 being sections the
land division act, 1967 PA 288, MCL 560.212
and
23 560.255, of the Michigan Compiled Laws, shall be is a
sufficient
24 legal description.
25 (b) The name, address, and capacity of the owner or lessee of
26 the real property contracting for the improvement.
27 (c) The name and address of the fee owner of the real
1 property, if the person contracting for the improvement is a land
2 contract vendee or lessee.
3 (d) The name and address of the owner's or lessee's designee.
4 (e) The name and address of the general contractor, if any.
5 The notice of commencement form shall must contain
the following
6 caption below the line for the general contractor's name and
7 address: (the name of the person with whom you have contracted to
8 provide substantially all the improvements to the property.)
9 (f) The following statement in boldface type on the front of
10 the form:
11 WARNING TO HOMEOWNER
12 Michigan law requires that you do the following:
13 1. Complete and return this form to the person who asked for
14 it within 10 days after the date of the postmark on the request.
15 2. If you do not complete and return this form within the 10
16 days you may have to pay the expenses incurred in getting the
17 information.
18 3. If you do not live at the site of the improvement, you must
19 post a copy of this form in a conspicuous place at that site.
20 You are not required to but should do the following:
21 1. Complete and post a copy of this form at the place where
22 the improvement is being made, even if you live there.
23 2. Make and keep a copy of this form for your own records.
24 (g) The following statement:
25 "To lien claimants and subsequent purchasers:
26 Take notice that work is about to commence on an improvement
27 to the real property described in this instrument. A person having
1 that has a construction lien may preserve the lien by providing a
2 notice of furnishing to the above named designee named above and
3 the general contractor, if any, and by timely recording a claim of
4 lien, in accordance with law.
5 A person having that
has a construction lien arising by
virtue
6 because of work performed on this improvement should refer to the
7 name of the owner or lessee and the legal description appearing in
8 this notice. A person subsequently acquiring that subsequently
9 acquires an interest in the land described is not required to be
10 named in a claim of lien.
11 A copy of this notice with an attached form for notice of
12 furnishing may be obtained upon on making a written request
by
13 certified mail to the above named owner or lessee named above; the
14 designee; or the person with whom you have contracted."
15 (h) The name and address of the person preparing the notice.
16 (i) An affidavit of the owner or lessee or the agent of the
17 owner or lessee which that
verifies the notice.
18 (3) Each A copy of the a notice of commencement shall
required
19 under this section must have a blank notice of furnishing as
20 described in section 109 attached to it. The blank notice of
21 furnishing shall must
be easily detachable from the copy of
the
22 notice and need not be recorded.
23 (4) Incorrect information contained in the a notice
of
24 commencement furnished by or for an owner or lessee shall under
25 this section does not affect adversely the rights of a lien
26 claimant as against the property of that the owner
or lessee.
27 (5) The An owner, lessee, or designee required to provide a
1 notice of commencement under this section, within 10 days after the
2 date of mailing of a written request by certified mail from a
3 contractor, subcontractor, supplier, or laborer, shall prepare and
4 provide a copy of the notice of commencement, together with an
5 attached blank notice of furnishing form, to the contractor,
6 subcontractor, supplier, or laborer. requesting a copy of
the
7 notice of commencement. A
contractor, subcontractor, supplier, or
8 laborer who requests a notice of commencement from an owner or
9 lessee of a residential structure shall supply a blank notice of
10 commencement form together with the attached blank notice of
11 furnishing to the owner or lessee at the time the request is made.
12 (6) A contractor who has been provided with a notice of
13 commencement under this section from the owner, lessee, or
14 designee, within 10 days after the date of mailing of a written
15 request by certified mail from a subcontractor, supplier, or
16 laborer who has a direct contract with the contractor, shall
17 provide a copy of the notice of commencement, together with an
18 attached blank notice of furnishing form, to the subcontractor,
19 supplier, or laborer. requesting a copy of the notice of
20 commencement. If the
contractor has not been provided a notice of
21 commencement, the contractor shall provide such the subcontractor,
22 supplier, or laborer the name and address of the owner or lessee.
23 (7) A subcontractor who has been provided with a notice of
24 commencement under this section from the owner, lessee, designee,
25 or contractor, or another subcontractor, within 10 days after the
26 date of mailing of a written request by certified mail from a
27 subcontractor, supplier, or laborer who has a direct contract with
1 the subcontractor, shall provide a copy of the notice of
2 commencement, together with an attached blank notice of
furnishing
3 form, to the requesting subcontractor, supplier, or laborer.
4 requesting a copy of the notice of commencement. If the
5 subcontractor has not been provided a notice of commencement, the
6 subcontractor shall provide to such the requesting subcontractor,
7 supplier, or laborer, the name and address of the owner or lessee.
8 (8) If the an
owner, lessee, or designee has received
a blank
9 notice of commencement form pursuant to under subsection
(5) and if
10 the owner or lessee does not currently reside at the real property
11 described in the notice of commencement, the owner, lessee, or
12 designee shall post a copy of the notice of commencement in a
13 conspicuous place on the real property during the course of the
14 actual physical improvement
to the real property.
15 (9) Failure of the an owner, lessee, or
designee to provide,
16 upon on written request, the a notice
of commencement , in
17 accordance with as
required by this section ,
shall operate to
18 extend extends the time within which a subcontractor or supplier
19 may provide a notice of furnishing, as described in section 109,
20 until 20 days after the notice of commencement actually has been
21 furnished to the subcontractor or laborer.
22 (10) Failure of the an owner, lessee, or
designee to provide
23 the a notice of commencement , in accordance with as required by
24 this section , shall operate to extend extends the
time within
25 which a laborer may provide a notice of furnishing, as described in
26 section 109, until 30 days after the notice of commencement
27 actually has been furnished to the laborer, or until the time in
1 which to provide the notice of furnishing in accordance with
2 section 109 expires, whichever is later.
3 (11) Failure of the An owner, lessee, or
designee that fails
4 to post or keep posted a copy of the a notice
of commencement as
5 provided in required
by subsection (8) shall render the
owner or
6 lessee is liable to a subcontractor, supplier, or laborer who
7 becomes a lien claimant for all actual expenses sustained by the
8 lien claimant in obtaining the information otherwise provided by
9 the posting.
10 (12) Failure of a A
contractor ,
who that has been provided
11 with a notice of commencement from the owner, lessee, or designee ,
12 and that fails to provide
the notice of commencement upon on
the
13 request of a lien claimant who that has a contract with the
14 contractor for an improvement to the property shall render the
15 contractor is liable to the lien claimant for all actual expenses
16 sustained by the lien claimant in obtaining the information
17 otherwise provided by the notice of commencement. Failure of a A
18 contractor that fails to provide the name and address of the owner
19 or lessee in accordance with as required by subsection
(6) shall
20 render the contractor is
liable to the lien claimant for all
actual
21 expenses sustained by the lien claimant in obtaining the name and
22 address of the owner or lessee.
23 (13) Failure of a A
subcontractor ,
who that has been provided
24 with a notice of commencement from the owner, lessee, designee,
25 contractor, or subcontractor
, and that fails to provide
the notice
26 of commencement upon on
the request of a subcontractor,
supplier,
27 or laborer who has a direct contract with the subcontractor shall
1 render the subcontractor is
liable to such the subcontractor,
2 supplier, or laborer for all actual expenses sustained by the
3 subcontractor, supplier, or laborer in obtaining the information
4 otherwise provided by the notice of commencement. Failure of a A
5 subcontractor that fails to provide the name and address of the
6 owner or lessee in accordance with as required by subsection (6)
7 shall render the subcontractor (7) is liable to the lien
claimant
8 for all actual expenses sustained by the lien claimant in obtaining
9 the name and address of the owner or lessee.
10 (14) This section shall only apply applies to
an improvement
11 to a residential structure.
12 Sec. 109. (1) Except as otherwise provided in sections 108 ,
13 and 108a, and 301, a
subcontractor or supplier who that
contracts
14 to provide an improvement to real property shall provide a notice
15 of furnishing to the designee and the general contractor, if any,
16 as named in the notice of commencement at the address shown in the
17 notice of commencement, either personally or by certified mail,
18 within 20 days after furnishing the first labor or material. If a
19 designee has not been named in the notice of commencement, or if
20 the designee has died, service shall must be
made upon on the owner
21 or lessee named in the notice of commencement. If service of the
22 notice of furnishing is made by certified mail, service is complete
23 upon on mailing. A contractor is not required to provide a notice
24 of furnishing to preserve lien rights arising from his or her
25 contract directly with an owner or lessee.
26 (2) Except as otherwise provided in sections 108 and 108a, a
27 laborer who contracts to provide an improvement to real property
1 shall provide a notice of furnishing to the designee and the
2 general contractor, if any, as named in the notice of commencement
3 at the address shown in the notice of commencement, either
4 personally or by mail, within 30 days after wages were
5 contractually due but were not paid. If a designee has not been
6 named in the notice of commencement, or if the designee has died,
7 service shall must
be made upon on the
owner or lessee named in the
8 notice of commencement. If service of the notice of furnishing is
9 made by mail, service is complete upon on mailing
by first-class
10 mail with postage prepaid.
11 (3) Except as otherwise provided in sections 108 and 108a, a
12 laborer who provides an improvement to real property shall provide
13 a notice of furnishing to the designee and the general contractor,
14 if any, named in the notice of commencement at the address shown in
15 the notice of commencement, either personally or by certified mail,
16 by the fifth day of the second month following the month in which
17 fringe benefits or withholdings from wages were contractually due
18 but were not paid. If a designee has not been named in the notice
19 of commencement, or if the designee has died, service shall must be
20 made upon on the owner or lessee named in the notice of
21 commencement. If service of the notice of furnishing is made by
22 certified mail, service is complete upon on mailing.
23 (4) The A notice of furnishing, if not given on the form
24 attached to the notice of commencement, shall must be
in
25 substantially the following form:
|
26 |
NOTICE OF FURNISHING |
|
27 |
To: ............................................................... |
|
1 |
(name of designee (or owner or lessee) from notice of commencement) |
|
2 |
............................................................... |
|
3 |
(address from notice of commencement) |
|
4 |
Please take notice that the undersigned is furnishing to .......... |
|
5 |
.................................................................... |
|
6 |
(name and address of other contracting party) |
|
7 |
certain labor or material for ................................... , |
|
8 |
(describe type of work) |
|
9 |
in connection with the improvements to the real property described |
|
10 |
in the notice of commencement recorded in liber .............. , on |
|
11 |
page ...... , .............................................records, |
|
12 |
(name of county) |
|
13 |
................................................................. . |
|
14 |
or (a copy of which is attached |
|
15 |
WARNING TO OWNER: THIS NOTICE IS REQUIRED BY THE MICHIGAN |
|
16 |
CONSTRUCTION LIEN ACT. IF YOU HAVE QUESTIONS ABOUT YOUR RIGHTS |
|
17 |
AND DUTIES UNDER THIS ACT, YOU SHOULD CONTACT AN ATTORNEY TO |
|
18 |
PROTECT YOU FROM THE POSSIBILITY OF PAYING TWICE FOR THE |
|
19 |
IMPROVEMENTS TO YOUR PROPERTY. |
|
20 |
...................................... |
|
21 |
(name and address of lien claimant) |
|
22 |
by ................................... |
|
23 |
(name and capacity of party |
|
24 |
signing for lien claimant) |
|
25 |
....................................... |
|
26 |
(address of party signing) |
|
27 |
Date: ...................... . |
1 (5) The failure of a lien claimant to provide a notice of
2 furnishing within the time specified in this section shall does not
3 defeat the lien claimant's right to a construction lien for work
4 performed or materials furnished by the lien claimant after the
5 service of the notice of furnishing.
6 (6) The failure of a lien claimant, to provide a notice of
7 furnishing within the time specified in this section shall does not
8 defeat the lien claimant's right to a construction lien for work
9 performed or materials furnished by the lien claimant before the
10 service of the notice of furnishing except to the extent that
11 payments were made by or on behalf of the owner or lessee to the
12 contractor pursuant to either a contractor's sworn statement or a
13 waiver of lien in accordance with this act for work performed or
14 material delivered by the lien claimant. This subsection does not
15 apply to a laborer.
16 (7) The failure of a laborer to provide a notice of furnishing
17 to the designee as required by subsection (2) shall defeat defeats
18 the laborer's lien for those the wages for which the
notice of
19 furnishing is required.
20 (8) The failure of a laborer to provide a notice of furnishing
21 to the designee as required by subsection (3) shall defeat defeats
22 the laborer's lien for those the fringe benefits and
withholdings
23 for which the notice of furnishing is required.
24 (9) The failure of a laborer to provide a notice of furnishing
25 to the general contractor within the time specified in subsection
26 (2) or (3) shall does
not defeat the laborer's right to a
27 construction lien, but the laborer shall be is liable
for any
1 actual damages sustained by the general contractor as a result of
2 the failure.
3 (10) One or more laborers may authorize an agent to prepare
4 and serve a notice of furnishing in the manner provided in this
5 section. Notice of furnishing under this section may contain the
6 notice of furnishing of more than 1 laborer and shall must contain
7 the information required in susbsection by subsection (4) as to
8 each laborer for whom it is prepared. The A court shall consider
9 the notice of furnishing of each lien claimant under this
10 subsection shall be considered by the court on its own merits.
11 Sec. 112. (1) If a notice of professional services contract,
12 notice of professional services subcontract, notice of
13 commencement, claim of lien, certificate of discharge of lien, or a
14 certificate of a county clerk that no proceedings to enforce a
15 statement or claim of construction
lien have been commenced within
16 the period provided by law is recorded in the office of a register
17 of deeds, the register shall endorse thereon on the instrument the
18 date of its recording and shall properly index the instrument.
19 (2) The fee for recording an instrument described in
20 subsection (1) shall be is
the same as the fee that is provided
by
21 law for the recording
of a real estate mortgage
under section 2567
22 of the revised judicature act of 1961, 1961 PA 236, MCL 600.2567.
23 (3) The recording of a notice of professional services
24 contract, notice of professional services subcontract, notice of
25 commencement, or a claim of lien shall operate operates as
26 constructive notice to subsequent purchasers or encumbrancers in
27 the same manner as the recording of a real estate mortgage.
1 Sec. 119. (1) Except as otherwise provided by subsection (4),
2 as between parties entitled to claim construction liens under this
3 act, their claims of lien shall be treated as having the liens have
4 equal priority. This subsection applies and the construction liens
5 have equal priority regardless of whether the lien arises at the
6 time of the first actual physical improvement or at the time a
7 notice is recorded under section 107a or 107b.
8 (2) A construction lien under this act shall take has priority
9 over all garnishments for the contract debt made after commencement
10 of the first actual physical improvement, the lien arises, without
11 regard to the date of recording of the claim of lien.
12 (3) A construction lien arising under this act shall take has
13 priority over all other interests, liens, or encumbrances which
14 that may attach to the
building, structure, or improvement, or upon
15 on the real property on which the building, structure, or
16 improvement is erected, when if the other interests,
liens, or
17 encumbrances are recorded subsequent to the first actual physical
18 improvement.after the
construction lien arises.
19 (4) A mortgage, lien, encumbrance, or other interest recorded
20 before the first actual physical improvement to real property shall
21 have construction
lien arises has priority over a
construction lien
22 arising under this act. The priority of the mortgage shall exist
23 exists as to all obligations secured by the mortgage except for
24 indebtedness arising out of advances made subsequent to the first
25 actual physical improvement. after the construction lien arises. An
26 advance made pursuant to the mortgage, but subsequent to the first
27 actual physical improvement shall have after the construction lien
1 arises, has priority over a construction lien if, for that advance,
2 the mortgagee has received a contractor's sworn statement as
3 provided in section 110, has made disbursements pursuant to the
4 contractor's sworn statement, and has received waivers of lien from
5 the contractor and all subcontractors, laborers, and suppliers who
6 have provided notices of furnishing. The construction lien of any a
7 lien claimant not set forth on the sworn statement upon on which
an
8 advance was made shall be is subordinate to the lien
of the
9 mortgage, including the advance, unless prior to before the
advance
10 the lien claimant has provided the designee with a notice of
11 furnishing if required by section 109 or has recorded a claim of
12 lien. Any An advance made after a notice of furnishing has been
13 provided or has been excused as provided in sections 108, 108a, and
14 109 or after a claim of lien has been recorded shall be is
15 subordinate to the construction lien of that the lien
claimant
16 unless prior to before
the advance the mortgagee has received
from
17 that the lien claimant either a full unconditional waiver of
lien
18 or a partial unconditional waiver of lien for the full amount due
19 the lien claimant as of the date through which the lien is waived
20 as shown on the lien waiver and the date through which the lien is
21 waived as shown on the partial unconditional waiver is within 30
22 days prior to before
the advance.
23 (5) For purposes of this section, retainage which that is
not
24 payable under a contract until the happening of a certain event
25 happens in addition to the
providing of an improvement
being
26 provided, is not due as of
the date of the providing of the
27 improvement is provided.
1 (6) For purposes of determining priorities under this section,
2 a construction lien arises as follows:
3 (a) Except as provided in subdivision (b), at the time of the
4 first actual physical improvement.
5 (b) As to a lien claimed by a person after the person has
6 recorded a notice under section 107a or 107b, at the time a notice
7 is recorded, subject to any applicable limitation under section
8 107a(4) or 107b(4).
9 Enacting section 1. Section 301 of the construction lien act,
10 1980 PA 497, MCL 570.1301, is repealed.
