PRESERVING LIEN RIGHTS
By Attorney Randall J. Andersen
February, 2014
By Attorney Randall J. Andersen
February, 2014
Disclaimer: The information contained on this page is not legal advice. The information provided on this website is for general informational purposes and is not necessarily updated to account for changes in the law. You should consult with an attorney for legal advice regarding your individual circumstances.
From time to time we receive calls from contractor clients who have not been paid for work performed on a construction project. Invariably we are asked early during the conversation whether the contractor still has time to file a lien.
For a private (non-government) construction projects in Wisconsin, contractors normally have six months from the date they last provide labor, services or materials to file a construction lien. However, to preserve the right to file a lien, contractors must give either one or two pre-lien notices to the owner, depending on the type of project.
The first notice is sometimes referred to as the initial notice of lien rights. If there is a written contract between the contractor and the owner, the notice is required to be included in the written contract. The language required to be included in the notice is set forth in §779.02(2), Wisconsin Statutes. If there is no written contract, the contractor must give the notice to the owner within ten days after the first labor, services, materials, plans or specifications are performed, furnished or procured for the improvement. In the case of a subcontractor, the notice must be given by the subcontractor to the owner within 60 days after performing, furnishing or procuring the first labor, services, materials, plans or specifications. There are a number of options under the statute for serving the notice, including personal delivery to the owner, or service by certified or registered mail.
There are a number of exceptions to the initial notice of lien rights requirement. For example, an initial notice of lien rights is not required for non-residential projects or projects where more than four family living units are to be provided or added by such work of improvement. There are several other exceptions under the statute.
The second notice is called the “notice of intent to file lien.” A notice of intent to file lien must be served on the owner at least 30 days before the claim for lien is filed. The notice of intent is required to be served on the owner in all cases, regardless of whether an initial notice of lien rights is required.
The lien itself (referred to as a claim for lien) must be filed in the office of the clerk of circuit court for the county where the real estate is located, within six months from the date the last labor, services or materials were provided by the lien claimant. A $5.00 fee is payable to the clerk of court at the time the lien is filed. A copy of the claim for lien must be served on the owner within 30 days of the date of filing.
Once the lien is filed, the lien claimant has a period of two years to bring an action to foreclose the lien. If no action is brought to foreclose the lien within two years, the lien is no longer valid.
The rules for service of the pre-lien notices and filing and foreclosing the lien are somewhat technical in nature and failure to closely follow the requirements can result in loss of the right to file a lien, or invalidity of the lien.
For a private (non-government) construction projects in Wisconsin, contractors normally have six months from the date they last provide labor, services or materials to file a construction lien. However, to preserve the right to file a lien, contractors must give either one or two pre-lien notices to the owner, depending on the type of project.
The first notice is sometimes referred to as the initial notice of lien rights. If there is a written contract between the contractor and the owner, the notice is required to be included in the written contract. The language required to be included in the notice is set forth in §779.02(2), Wisconsin Statutes. If there is no written contract, the contractor must give the notice to the owner within ten days after the first labor, services, materials, plans or specifications are performed, furnished or procured for the improvement. In the case of a subcontractor, the notice must be given by the subcontractor to the owner within 60 days after performing, furnishing or procuring the first labor, services, materials, plans or specifications. There are a number of options under the statute for serving the notice, including personal delivery to the owner, or service by certified or registered mail.
There are a number of exceptions to the initial notice of lien rights requirement. For example, an initial notice of lien rights is not required for non-residential projects or projects where more than four family living units are to be provided or added by such work of improvement. There are several other exceptions under the statute.
The second notice is called the “notice of intent to file lien.” A notice of intent to file lien must be served on the owner at least 30 days before the claim for lien is filed. The notice of intent is required to be served on the owner in all cases, regardless of whether an initial notice of lien rights is required.
The lien itself (referred to as a claim for lien) must be filed in the office of the clerk of circuit court for the county where the real estate is located, within six months from the date the last labor, services or materials were provided by the lien claimant. A $5.00 fee is payable to the clerk of court at the time the lien is filed. A copy of the claim for lien must be served on the owner within 30 days of the date of filing.
Once the lien is filed, the lien claimant has a period of two years to bring an action to foreclose the lien. If no action is brought to foreclose the lien within two years, the lien is no longer valid.
The rules for service of the pre-lien notices and filing and foreclosing the lien are somewhat technical in nature and failure to closely follow the requirements can result in loss of the right to file a lien, or invalidity of the lien.