How do I get a lien removed that was placed by the subcontractor since the contractor did not pay?
Full Question:
I had a lien placed against my property by a subcontractor because the contractor did not pay the subcontractor for materials (windows) that were installed on my house. The contractor has since declared bankruptcy. The Illinois law, as I understand from information I found on the internet, loosely states the following: 'The 'perfection' of a Claim for a Mechanics Lien simply means taking all the steps necessary to protect your rights to a Lien. These steps vary depending upon the status of the Claimant and the type of real estate where work has been done. Because the Mechanics Lien is a very powerful tool to ensure that contractors get paid, Illinois law requires that Claim for Lien be strictly perfected both in terms of the information contained in the Claim, and in accordance with certain time limitations'.In the 'Subcontractors Claim For Lien' filed on Oct. 2, 2008 filed against my property, it states 'that on June 5 , 2008, the claimant completed thereunder delivery of materials and/or furnishings of labor to the value of $5932.53......The materials (replacement windows) that arrived on June 5, 2008 were incorrect. The windows I ordered contained window grids or window panes. The June 5th delivery was not for windows that contained grids or panes, therefore, I rejected the delivery. The correct windows were reordered and delivered on July 23, 2008. Due to broken window panes at that time, replacement widows again were ordered and finally arrived when the subcontractor representative himself finally delivered corrected windows in mid to late October 2008. Because the Claim For Lien was not strictly perfected in terms of the information, isn't this Claim for lien then invalid or unenforceable. I have tried twice to negotiate a settlement with the claimant, once for $2,000 and recently for $3,000 (both offers rejected by the claimant) even though I do not believe I am responsible for the lien amount since I have paid the contractor in full. Now I would like to get the lien invalidated and dropped.
04/01/2009 |
Category: Contractors ยป Construction... |
State: Illinois |
#15844
Answer:
Generally, in Illinois the subcontractor must send a residential homeowner a prelien notice within 90 days of last performing work or supplying materials. To properly perfect a mechanics lien, both contractors and subcontractors must record their liens within four months of their last date of work. The residential home owner may ask the general contractor to provide a sworn statement disclosing the names, addresses, and amounts to be paid to contractors and suppliers. If requested, and the owner then pays the general contractor all amounts owed under the contract, the owner need not pay anything further. This applies even if the monies do not then filter down to the subcontractor. This prevents the owner from paying twice.
However, if the owner does not request the sworn statement, it will be required to pay money to the lien claimants in excess of the contract amount. Further, if the owner pays the general after receiving a “Subcontractor’s Notice of Intent to File Mechanic’s Lien”, the owner does so at his or her risk and may have to pay twice. What the owner should do under such circumstances is withhold the amount in that notice from the general contractor.
An owner may also make a demand to have the lien action brought to court. The two-year time period for filing suit may be accelerated by such a demand. If a lien claimant receives a section Demand to File Suit, the lien claimant must initiate suit to enforce its lien within 30 days. If the lien claimant fails to do so within 30 days of service of the demand, the lien is forfeited. In an action to enforce the lien, the owner may assert any defenses available to defeat the lien.
Please see the following IL statutes:
(770 ILCS 60/34) (from Ch. 82, par. 34)
Sec. 34.
Upon written demand of the owner, lienor, or any person interested in the real estate, or their agent or attorney, served on the person claiming the lien, or his agent or attorney, requiring suit to be commenced to enforce the lien or answer to be filed in a pending suit, suit shall be commenced or answer filed within 30 days thereafter, or the lien shall be forfeited. Such service may be by registered or certified mail, return receipt requested, or by personal service.
(Source: P.A. 82-618.)
(770 ILCS 60/35) (from Ch. 82, par. 35)
Sec. 35. Satisfaction or release; recording; neglect; penalty.
Whenever a claim for lien has been filed with the recorder of deeds, either by the contractor or sub-contractor, and is paid with cost of filing same, or where there is a failure to institute suit to enforce the same after demand as provided in the preceding Section within the time by this Act limited the person filing the same or some one by him duly authorized in writing so to do, shall acknowledge satisfaction or release thereof, in writing, on written demand of the owner, lienor, or any person interested in the real estate, or his or her agent or attorney, and on neglect to do so for 10 days after such written demand he or she shall be liable to the owner for the sum of $2,500, which may be recovered in a civil action together with the costs and the reasonable attorney's fees of the owner, lienor, or other person interested in the real estate, or his or her agent or attorney incurred in bringing such action.
(b) Such a satisfaction or release of lien may be filed with the recorder of deeds in whose office the claim for lien had been filed and when so filed shall forever thereafter discharge and release the claim for lien and shall bar all actions brought or to be brought thereupon.
(c) The release of lien shall have the following imprinted thereon in bold letters at least 1/4 inch in height: "FOR THE PROTECTION OF THE OWNER, THIS RELEASE SHOULD BE FILED WITH THE RECORDER IN WHOSE OFFICE THE CLAIM FOR LIEN WAS FILED." The Recorder in whose office the claim for lien had been filed, upon receipt of a release and the payment of the recording fee, shall record the release.
(Source: P.A. 94-627, eff. 1-1-06.)
...It shall be the duty of each subcontractor who has furnished, or is furnishing, labor, services, material, fixtures, apparatus or machinery, forms or form work for an existing owner-occupied single family residence, in order to preserve his lien, to notify the occupant either personally or by certified mail, return receipt requested, addressed to the occupant or his agent of the residence within 60 days from his first furnishing labor, services, material, fixtures, apparatus or machinery, forms or form work, that he is supplying labor, services, material, fixtures, apparatus or machinery, forms or form work provided, however, that any notice given after 60 days by the subcontractor shall preserve his lien, but only to the extent that the owner has not been prejudiced by payments made prior to receipt of the notice. The notification shall include a warning to the owner that before any payment is made to the contractor, the owner should receive a waiver of lien executed by each subcontractor who has furnished labor, services, material, fixtures, apparatus or machinery, forms or form work.
The notice shall contain the name and address of the subcontractor or material man, the date he started to work or to deliver materials, the type of work done and to be done or the type of materials delivered and to be delivered, and the name of the contractor requesting the work. The notice shall also contain the following warning:
"NOTICE TO OWNER
The subcontractor providing this notice has performed work for or delivered material to your home improvement contractor. These services or materials are being used in the improvements to your residence and entitle the subcontractor to file a lien against your residence if the services or materials are not paid for by your home improvement contractor. A lien waiver will be provided to your contractor when the subcontractor is paid, and you are urged to request this waiver from your contractor when paying for your home improvements."
770 ILCS 60/13) (from Ch. 82, par. 13)
Sec. 13. Defendant shall answer as in other civil actions.
(a) The owner may make any defense against the contractor by way of counter claim that he could in any civil action for the payment of money, and may have the same right of recovery on proof of such in excess of the claim of the contractor against the contractor only, but for matters not growing out of the contract recovery shall be without prejudice to the rights of the sub-contractors thereunder for payment out of the contract price or fund.
(b) In any proceedings to enforce a lien on account of wages due for labor the claimant need file only an affidavit giving the amount due, between what dates the labor was performed and the kind of labor performed, and the court shall direct the amount due for wages as therein specified to be paid within a short day to be fixed by the court, unless within 10 days after the filing of the claim the amount claimed is contested by the owner or some other party to the suit. The party making such contest shall file an affidavit which shall state his defense to the allowance of the claim, and the court shall proceed at once to hear the evidence, and determine the merits of the claim, and in the event the allowance for wages is not paid within the time fixed by the court, the court shall order the premises sold to pay the amount in such manner as it directs.
(Source: P.A. 94-627, eff. 1-1-06.)
(770 ILCS 60/21.01) (from Ch. 82, par. 21.01)
Sec. 21.01. Failure of contractor to pay sub-contractor; fraud; penalty.
Any contractor, or if the contractor is a corporation any officer or employee thereof, who with intent to defraud induces a subcontractor, as defined in Section 21, to execute and deliver a waiver of lien for the purpose of enabling the contractor to obtain payment under his contract and upon the representation that the contractor will, from such payment, pay the subcontractor the amount due the subcontractor, and who willfully fails to pay the subcontractor in full within 30 days after such payment shall be guilty of a Class A misdemeanor.
(Source: P.A. 94-627, eff. 1-1-06.)
(770 ILCS 60/28) (from Ch. 82, par. 28)
Sec. 28. Suits by laborers, materialmen or sub-contractors.
If any money due to the laborers, materialmen, or sub-contractors be not paid within 10 days after his notice is served as provided in Sections 5, 24, and 25, then such person may file a claim for lien or file a complaint and enforce such lien within the same limits as to time and in such other manner as hereinbefore provided for the contractor in Section 7 and Sections 9 to 20 inclusive, of this Act, or he may sue the owner and contractor jointly for the amount due in the circuit court, and a personal judgment may be rendered therein, as in other cases. In such actions, as in suits to enforce the lien, the owner shall be liable to the plaintiff for no more than the pro rata share that such person would be entitled to with other sub-contractors out of the funds due to the contractor from the owner or one knowingly permitted by the owner to contract for such improvements and the contractor, except as hereinbefore provided for laborers and materialmen, and such action shall be maintained against the owner only in case the plaintiff establishes a right to the lien. All suits and actions by sub-contractors shall be against both contractor and owner jointly, and no judgment shall be rendered therein until both are duly brought before the court by process or publication, and such process may be served and publication made as to all persons except the owners as in other civil actions. All such judgments, where the lien is established shall be against both jointly, but shall be enforced against the owner only to the extent that he is liable under his contract as by this Act provided, and shall recite the date from which the lien thereof attached according to the provisions of Sections 1 to 20 of this Act; but this shall not preclude a judgment against the contractor, personally, where the lien is defeated.
(Source: P.A. 94-627, eff. 1-1-06.)
