Full Text of HB0830 95th General Assembly
HB0830 95TH GENERAL ASSEMBLY
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95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008 HB0830
Introduced 2/7/2007, by Rep. Timothy L. Schmitz SYNOPSIS AS INTRODUCED: |
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770 ILCS 60/21 |
from Ch. 82, par. 21 |
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Amends the Mechanic Lien Act. Provides that in a breach of contract action (at present, only in actions for payment of a claim under the Mechanics Lien Act) a provision in a contract that conditions a payment to a contractor or subcontractor on payment by another party is not a defense. Effective immediately.
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A BILL FOR
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HB0830 |
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LRB095 05101 AJO 25170 b |
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| AN ACT concerning civil law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Mechanics Lien Act is amended by changing | 5 |
| Section 21 as follows:
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| (770 ILCS 60/21) (from Ch. 82, par. 21)
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| Sec. 21. Sub-contractor defined; lien of sub-contractor; | 8 |
| notice; size of type; service of notice; amount of lien; | 9 |
| default by contractor.
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| (a) Subject to the provisions of Section 5, every mechanic,
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| worker or other person who shall furnish any labor, services, | 12 |
| material, fixtures, apparatus or
machinery, forms or form work | 13 |
| for the
contractor, or shall furnish any material to be | 14 |
| employed in the process
of construction as a means for | 15 |
| assisting in the erection of the building
or improvement in | 16 |
| what is commonly termed form or form work where
concrete, | 17 |
| cement or like material is used in whole or in part, shall be
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| known under this Act as a sub-contractor, and shall have a lien | 19 |
| for the
value thereof, with interest on such amount from the | 20 |
| date the same is
due, from the same time, on the same property | 21 |
| as provided for the
contractor, and, also, as against the | 22 |
| creditors and assignees, and
personal and legal | 23 |
| representatives of the contractor, on the material,
fixtures, |
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LRB095 05101 AJO 25170 b |
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| apparatus or machinery furnished, and on the moneys or other
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| considerations due or to become due from the owner under the | 3 |
| original
contract. | 4 |
| (b) If the legal effect of any contract between the owner | 5 |
| and
contractor is that no lien or claim may be filed or | 6 |
| maintained by any
one and the waiver is not prohibited by this | 7 |
| Act, or that such contractor's lien shall be subordinated to | 8 |
| the interests of any other party, such provision shall be
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| binding; but the only admissible evidence
thereof as against a | 10 |
| subcontractor or material supplier, shall be proof of
actual | 11 |
| notice thereof to him or her before his or her contract is | 12 |
| entered into. Such subordination provision shall not be binding | 13 |
| on the subcontractor unless set forth in its entirety in | 14 |
| writing in the contract between the contractor and | 15 |
| subcontractor or material supplier.
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| (c) It shall be the duty of each subcontractor who has | 17 |
| furnished, or is
furnishing, labor, services, material, | 18 |
| fixtures, apparatus or machinery, forms or form work for an | 19 |
| existing owner-occupied single
family residence, in order to | 20 |
| preserve his lien, to notify the occupant
either personally or | 21 |
| by certified mail, return receipt requested,
addressed to the | 22 |
| occupant or his agent of the residence within 60 days
from his | 23 |
| first furnishing labor, services, material, fixtures, | 24 |
| apparatus or machinery, forms or form work, that he is | 25 |
| supplying labor, services, material, fixtures, apparatus or | 26 |
| machinery, forms or form work provided, however, that any |
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HB0830 |
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LRB095 05101 AJO 25170 b |
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| notice given after 60
days by the subcontractor shall preserve | 2 |
| his lien, but only to the
extent that the owner has not been | 3 |
| prejudiced by payments made prior to
receipt of the notice. The | 4 |
| notification shall include a warning to the
owner that before | 5 |
| any payment is made to the contractor, the owner
should receive | 6 |
| a waiver of lien executed by each subcontractor who has
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| furnished labor, services, material, fixtures, apparatus or | 8 |
| machinery, forms or form work.
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| The notice shall contain the name and address of the | 10 |
| subcontractor or
material man, the date he started to work or | 11 |
| to deliver materials, the
type of work done and to be done or | 12 |
| the type of materials delivered and
to be delivered, and the | 13 |
| name of the contractor requesting the work.
The notice shall | 14 |
| also contain the following warning:
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| "NOTICE TO OWNER
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| The subcontractor providing this notice has performed work | 17 |
| for or
delivered material to your home improvement contractor. | 18 |
| These services or
materials are being used in the improvements | 19 |
| to your residence and entitle
the subcontractor to file a lien | 20 |
| against your residence if the services or
materials are not | 21 |
| paid for by your home improvement contractor. A lien
waiver | 22 |
| will be provided to your contractor when the subcontractor is | 23 |
| paid,
and you are urged to request this waiver from your | 24 |
| contractor when paying
for your home improvements."
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| Such warning shall be in at least 10 point bold face type. | 26 |
| For
purposes of this Section, notice by certified mail is |
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| considered served
at the time of its mailing.
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| (d) In no case, except as hereinafter provided, shall the | 3 |
| owner be
compelled to pay a greater sum for or on account of | 4 |
| the completion of
such house, building or other improvement | 5 |
| than the price or sum
stipulated in said original contract or | 6 |
| agreement, unless payment be
made to the contractor or to his | 7 |
| order, in violation of the rights and
interests of the persons | 8 |
| intended to be benefited by this Act: Provided,
if it shall | 9 |
| appear to the court that the owner and contractor
fraudulently, | 10 |
| and for the purpose of defrauding sub-contractors fixed an
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| unreasonably low price in their original contract for the | 12 |
| erection or
repairing of such house, building or other | 13 |
| improvement, then the court
shall ascertain how much of a | 14 |
| difference exists between a fair price for
labor, services, | 15 |
| material, fixtures, apparatus or machinery, forms or form work | 16 |
| used in said house, building or other improvement,
and the sum | 17 |
| named in said original contract, and said difference shall
be | 18 |
| considered a part of the contract and be subject to a lien. But | 19 |
| where
the contractor's statement, made as provided in Section | 20 |
| 5, shows the
amount to be paid to the sub-contractor, or party | 21 |
| furnishing material,
or the sub-contractor's statement, made | 22 |
| pursuant to Section 22, shows
the amount to become due for | 23 |
| material; or notice is given to the owner,
as provided in | 24 |
| Sections 24 and 25, and thereafter such sub-contract
shall be | 25 |
| performed, or material to the value of the amount named in such
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| statements or notice, shall be prepared for use and delivery, |
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| or
delivered without written protest on the part of the owner | 2 |
| previous to
such performance or delivery, or preparation for | 3 |
| delivery, then, and in
any of such cases, such sub-contractor | 4 |
| or party furnishing or preparing
material, regardless of the | 5 |
| price named in the original contract, shall
have a lien | 6 |
| therefor to the extent of the amount named in such
statements | 7 |
| or notice. In case of default or abandonment by the
contractor, | 8 |
| the sub-contractor or party furnishing material, shall have
and | 9 |
| may enforce his lien to the same extent and in the same manner | 10 |
| that
the contractor may under conditions that arise as provided | 11 |
| for in
Section 4 of this Act, and shall have and may exercise | 12 |
| the same rights
as are therein provided for the contractor.
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| (e) Any provision in a contract, agreement, or | 14 |
| understanding,
when payment from a contractor to a | 15 |
| subcontractor or supplier is
conditioned upon receipt of the | 16 |
| payment from any other party including a
private or public | 17 |
| owner, shall not be a defense by the
party responsible for | 18 |
| payment to a claim brought under Section 21, 22, 23,
or 28 of | 19 |
| this Act or for breach of contract against the party. For the | 20 |
| purpose of this Section,
"contractor" also includes | 21 |
| subcontractor or supplier. The provisions of
Public Act 87-1180 | 22 |
| shall be construed as
declarative of existing law and not as a | 23 |
| new enactment.
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| (Source: P.A. 94-615, eff. 1-1-06; 94-627, eff. 1-1-06.)
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| Section 99. Effective date. This Act takes effect upon | 26 |
| becoming law.
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