97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB1118

 

Introduced 2/8/2011, by Sen. John J. Cullerton

 

SYNOPSIS AS INTRODUCED:
 
770 ILCS 60/21  from Ch. 82, par. 21

    Amends the Mechanics Lien Act. Makes a technical change in a Section concerning a sub-contractor's lien.


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A BILL FOR

 

SB1118LRB097 04834 AJO 44873 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Mechanics Lien Act is amended by changing
5Section 21 as follows:
 
6    (770 ILCS 60/21)  (from Ch. 82, par. 21)
7    Sec. 21. Sub-contractor defined; lien of sub-contractor;
8notice; size of type; service of notice; amount of lien;
9default by contractor.
10    (a) Subject to the the provisions of Section 5, every
11mechanic, worker or other person who shall furnish any labor,
12services, material, fixtures, apparatus or machinery, forms or
13form work for the contractor, or shall furnish any material to
14be employed in the process of construction as a means for
15assisting in the erection of the building or improvement in
16what is commonly termed form or form work where concrete,
17cement or like material is used in whole or in part, shall be
18known under this Act as a sub-contractor, and shall have a lien
19for the value thereof, with interest on such amount from the
20date the same is due, from the same time, on the same property
21as provided for the contractor, and, also, as against the
22creditors and assignees, and personal and legal
23representatives of the contractor, on the material, fixtures,

 

 

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1apparatus or machinery furnished, and on the moneys or other
2considerations due or to become due from the owner under the
3original contract.
4    (b) If the legal effect of any contract between the owner
5and contractor is that no lien or claim may be filed or
6maintained by any one and the waiver is not prohibited by this
7Act, or that such contractor's lien shall be subordinated to
8the interests of any other party, such provision shall be
9binding; but the only admissible evidence thereof as against a
10subcontractor or material supplier, shall be proof of actual
11notice thereof to him or her before his or her contract is
12entered into. Such subordination provision shall not be binding
13on the subcontractor unless set forth in its entirety in
14writing in the contract between the contractor and
15subcontractor or material supplier.
16    (c) It shall be the duty of each subcontractor who has
17furnished, or is furnishing, labor, services, material,
18fixtures, apparatus or machinery, forms or form work for an
19existing owner-occupied single family residence, in order to
20preserve his lien, to notify the occupant either personally or
21by certified mail, return receipt requested, addressed to the
22occupant or his agent of the residence within 60 days from his
23first furnishing labor, services, material, fixtures,
24apparatus or machinery, forms or form work, that he is
25supplying labor, services, material, fixtures, apparatus or
26machinery, forms or form work provided, however, that any

 

 

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1notice given after 60 days by the subcontractor shall preserve
2his lien, but only to the extent that the owner has not been
3prejudiced by payments made prior to receipt of the notice. The
4notification shall include a warning to the owner that before
5any payment is made to the contractor, the owner should receive
6a waiver of lien executed by each subcontractor who has
7furnished labor, services, material, fixtures, apparatus or
8machinery, forms or form work.
9    The notice shall contain the name and address of the
10subcontractor or material man, the date he started to work or
11to deliver materials, the type of work done and to be done or
12the type of materials delivered and to be delivered, and the
13name of the contractor requesting the work. The notice shall
14also contain the following warning:
15
"NOTICE TO OWNER
16    The subcontractor providing this notice has performed work
17for or delivered material to your home improvement contractor.
18These services or materials are being used in the improvements
19to your residence and entitle the subcontractor to file a lien
20against your residence if the services or materials are not
21paid for by your home improvement contractor. A lien waiver
22will be provided to your contractor when the subcontractor is
23paid, and you are urged to request this waiver from your
24contractor when paying for your home improvements."
25    Such warning shall be in at least 10 point bold face type.
26For purposes of this Section, notice by certified mail is

 

 

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1considered served at the time of its mailing.
2    (d) In no case, except as hereinafter provided, shall the
3owner be compelled to pay a greater sum for or on account of
4the completion of such house, building or other improvement
5than the price or sum stipulated in said original contract or
6agreement, unless payment be made to the contractor or to his
7order, in violation of the rights and interests of the persons
8intended to be benefited by this Act: Provided, if it shall
9appear to the court that the owner and contractor fraudulently,
10and for the purpose of defrauding sub-contractors fixed an
11unreasonably low price in their original contract for the
12erection or repairing of such house, building or other
13improvement, then the court shall ascertain how much of a
14difference exists between a fair price for labor, services,
15material, fixtures, apparatus or machinery, forms or form work
16used in said house, building or other improvement, and the sum
17named in said original contract, and said difference shall be
18considered a part of the contract and be subject to a lien. But
19where the contractor's statement, made as provided in Section
205, shows the amount to be paid to the sub-contractor, or party
21furnishing material, or the sub-contractor's statement, made
22pursuant to Section 22, shows the amount to become due for
23material; or notice is given to the owner, as provided in
24Sections 24 and 25, and thereafter such sub-contract shall be
25performed, or material to the value of the amount named in such
26statements or notice, shall be prepared for use and delivery,

 

 

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1or delivered without written protest on the part of the owner
2previous to such performance or delivery, or preparation for
3delivery, then, and in any of such cases, such sub-contractor
4or party furnishing or preparing material, regardless of the
5price named in the original contract, shall have a lien
6therefor to the extent of the amount named in such statements
7or notice. In case of default or abandonment by the contractor,
8the sub-contractor or party furnishing material, shall have and
9may enforce his lien to the same extent and in the same manner
10that the contractor may under conditions that arise as provided
11for in Section 4 of this Act, and shall have and may exercise
12the same rights as are therein provided for the contractor.
13    (e) Any provision in a contract, agreement, or
14understanding, when payment from a contractor to a
15subcontractor or supplier is conditioned upon receipt of the
16payment from any other party including a private or public
17owner, shall not be a defense by the party responsible for
18payment to a claim brought under Section 21, 22, 23, or 28 of
19this Act against the party. For the purpose of this Section,
20"contractor" also includes subcontractor or supplier. The
21provisions of Public Act 87-1180 shall be construed as
22declarative of existing law and not as a new enactment.
23(Source: P.A. 94-615, eff. 1-1-06; 94-627, eff. 1-1-06.)