Feed for /2005/related/acts/204 PDF
Date of enactment: March 27, 2006
2005 Senate Bill 450 Date of publication*: April 10, 2006
* Section 991.11, Wisconsin Statutes 2003-04 : Effective date of acts. "Every act and every portion of an act enacted by the legislature over the governor's partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication as designated" by the secretary of state [the date of publication may not be more than 10 working days after the date of enactment].
2005 WISCONSIN ACT 204
An Act to amend 59.40 (2) (f), 66.0901 (2), 703.22 (title), 703.22 (2), 703.22 (3), 779.01 (2) (a), 779.01 (2) (d) (intro.), 779.01 (2) (d) 1., 779.01 (2) (d) 2., 779.01 (3), 779.01 (4), 779.01 (5), 779.02 (1) (b), 779.02 (1) (c), 779.02 (1) (e), 779.02 (2) (title), 779.02 (2) (a), 779.02 (2) (b), 779.02 (2) (c), 779.02 (2) (d), 779.02 (2) (e), 779.02 (3), 779.02 (5), 779.03 (1), 779.035 (1), 779.035 (2) (b) 1., 779.035 (2) (b) 2. a., 779.035 (2) (b) 2. c., 779.035 (3), 779.036 (1), 779.036 (2), 779.036 (3), 779.036 (4) (a), 779.05 (1), 779.06 (1), 779.06 (2), 779.06 (3), 779.07 (1) (d), 779.08 (1), 779.08 (2), 779.10, 779.13 (2), 779.135 (1), 779.135 (3), 779.14 (1) (intro.), 779.14 (1) (a), 779.14 (1) (b), 779.14 (1e) (a), 779.14 (1e) (b), 779.14 (1m) (c) (intro.), 779.14 (1m) (d) (intro.), 779.14 (1m) (e) 2. b., 779.14 (2) (a) (intro.), 779.14 (2) (a) 2., 779.14 (2) (a) 3., 779.14 (2) (am) 1., 779.14 (2) (am) 2. a., 779.14 (2) (am) 2. b., 779.14 (2) (am) 2. c., 779.14 (3), 779.15 (title), 779.15 (1), 779.15 (2), 779.15 (3), 779.15 (4) (a), 779.155 (2), 779.155 (3), 779.155 (4), 779.155 (5) (a), 779.155 (5) (b), 779.155 (6), 779.155 (7), 779.16 and 779.17; and to create 779.01 (2) (am), 779.01 (2) (bm) and 779.01 (2) (e) of the statutes; relating to: construction liens, requirements for securing payment for work on publicly financed projects, and providing a penalty.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
204,1 Section 1. 59.40 (2) (f) of the statutes is amended to read:
59.40 (2) (f) Keep a judgment and lien docket of all claims for liens filed by prime contractors, subcontractors, materialmen suppliers, service providers, and laborers and all claims filed for log, mining, and maintenance liens.
204,2 Section 2. 66.0901 (2) of the statutes is amended to read:
66.0901 (2) Bidder's proof of responsibility. A municipality intending to enter into a public contract may, before delivering any form for bid proposals, plans, and specifications to any person, except materialmen, suppliers, and others not intending to submit a direct bid, require the person to submit a full and complete statement sworn to before an officer authorized by law to administer oaths. The statement shall consist of information relating to financial ability, equipment, experience in the work prescribed in the public contract, and other matters that the municipality requires for the protection and welfare of the public in the performance of a public contract. The statement shall be in writing on a standard form of a questionnaire that is adopted and furnished by the municipality. The statement shall be filed in the manner and place designated by the municipality. The statement shall not be received less than 5 days prior to the time set for the opening of bids. The contents of the statement shall be confidential and may not be disclosed except upon the written order of the person furnishing the statement, for necessary use by the public body in qualifying the person, or in cases of actions against, or by, the person or municipality. The governing body of the municipality or the committee, board, or employee charged with, or delegated by the governing body with, the duty of receiving bids and awarding contracts shall properly evaluate the statement and shall find the maker of the statement either qualified or unqualified. This subsection does not apply to a 1st class city.
204,3 Section 3. 703.22 (title) of the statutes is amended to read:
703.22 (title) Mechanics' and materialmen's suppliers' liens.
204,4 Section 4. 703.22 (2) of the statutes is amended to read:
703.22 (2) Any mechanics' lien or materialmen's suppliers' lien under subch. I of ch. 779 arising as a result of repairs to or improvements of a unit by a unit owner shall be a lien only against the unit.
204,5 Section 5. 703.22 (3) of the statutes is amended to read:
703.22 (3) Any mechanics' or materialmen's suppliers' lien under subch. I of ch. 779 arising as a result of repairs to or improvements of the common elements, if authorized in writing by the association, shall be paid by the association as a common expense and until paid shall be a lien against each unit in proportion to its percentage interest in the common elements. On payment of the proportionate amount by any unit owner to the lienor or on the filing of a written undertaking in the manner specified by s. 779.08, the unit owner shall be entitled to a release of his or her unit from the lien and the association shall not be entitled to assess his or her unit for payment of the remaining amount due for the repairs or improvements.
204,6 Section 6. 779.01 (2) (a) of the statutes is amended to read:
779.01 (2) (a) "Improve" or "improvement" includes any building, structure, erection, fixture, demolition, alteration, excavation, filling, grading, tiling, planting, clearing or, landscaping, repairing, or remodeling which is built, erected, made or done on or to land for its permanent benefit. This enumeration is intended as an extension rather than a limitation of the normal meaning and scope of "improve" and "improvement".
204,6g Section 6g. 779.01 (2) (am) of the statutes is created to read:
779.01 (2) (am) "Labor" includes any wages and related contributions for state employment taxes, worker's compensation and unemployment compensation insurance, and other fringe benefits.
204,6r Section 6r. 779.01 (2) (bm) of the statutes is created to read:
779.01 (2) (bm) "Materials" includes any construction materials, supplies, tools, fixtures, equipment, machinery, vehicles, fuel, and energy.
204,7 Section 7. 779.01 (2) (d) (intro.) of the statutes is amended to read:
779.01 (2) (d) (intro.) "Prime contractor" means any of the following:
204,8 Section 8. 779.01 (2) (d) 1. of the statutes is amended to read:
779.01 (2) (d) 1. A person, other than a laborer, but including an architect, professional engineer, or construction manager, surveyor, or other service provider, employed by the owner, who enters into a contract with an owner of land who is not personally the prime contractor as defined in subd. 2. to improve the land, or who takes over from a prime contractor the uncompleted contract; or.
204,9 Section 9. 779.01 (2) (d) 2. of the statutes is amended to read:
779.01 (2) (d) 2. An owner of land who acts personally as general prime contractor in improving such land.
204,10 Section 10. 779.01 (2) (e) of the statutes is created to read:
779.01 (2) (e) "Serve" or "served" means personal delivery, delivery by registered or certified mail, service in a manner described for service of a summons under s. 801.14, or any other means of delivery in which the recipient makes written confirmation of the delivery; except that in s. 779.15, with respect to serving the state, "serve" or "served" means delivery by registered or certified mail.
204,11 Section 11. 779.01 (3) of the statutes is amended to read:
779.01 (3) Extent and character of lien. Every Any person who performs, furnishes, or procures any work or procures its performance or furnishes any, labor or, service, materials or , plans, or specifications, used or consumed for the improvement of land, and who complies with s. 779.02, shall have a lien therefor on all interests in the land belonging to its owners. The lien extends to all contiguous land of the owner, but if the improvement is located wholly on one or more platted lots belonging to the owner, the lien applies only to the lots on which the improvement is located.
204,12 Section 12. 779.01 (4) of the statutes is amended to read:
779.01 (4) Priority of construction lien. The lien provided in sub. (3) shall be prior to any lien which originates subsequent to the visible commencement in place of the work of improvement, except as otherwise provided by ss. 215.21 (4) (a), 292.31 (8) (i), 292.81 and 706.11 (1) and (1m). When new construction is the principal improvement involved, commencement is considered to occur no earlier than the beginning of substantial excavation for the foundations, footings or base of the new construction, except where the new construction is to be added to a substantial existing structure, in which case the commencement is the time of the beginning of substantial excavation or the time of the beginning of substantial preparation of the existing structure to receive the added new construction, whichever is earlier. The lien also shall be prior to any unrecorded mortgage given prior to the commencement of the work of improvement, if the lien claimant has no actual notice of the mortgage before the commencement. Lien claimants who perform work or, furnish, or procure its performance or furnish any labor or, services, materials or, plans, or specifications for an improvement prior to the visible commencement of the work of improvement shall have lien rights, but shall have only the priority accorded to other lien claimants.
204,13 Section 13. 779.01 (5) of the statutes is amended to read:
779.01 (5) Assignment of lien, garnishment. Assignment of a claim or right to a lien or any part thereof by a prime contractor, or garnishment by the creditor of a prime contractor, subcontractor, materialman supplier, service provider, laborer or mechanic, shall not operate to compel the owner, prime contractor, subcontractor or materialman, supplier, or service provider to pay the assignee or creditor until the lien claims of subcontractors, materialmen suppliers, service providers, and laborers under this subchapter have either been paid in full, matured by notice and filing or expired. If such claims become liens, the owner, prime contractor, subcontractor or materialman, supplier, or service provider shall be compelled to pay such assignee or creditor only what remains due in excess of such liens.
204,14 Section 14. 779.02 (1) (b) of the statutes is amended to read:
779.02 (1) (b) By any lien claimant who has contracted directly with the owner for the work or labor, services, materials, plans, or specifications performed, furnished, or procured, unless the claimant is a prime contractor subject to the notice requirement of sub. (2) (a).
204,15 Section 15. 779.02 (1) (c) of the statutes is amended to read:
779.02 (1) (c) By any lien claimant performing, furnishing, or procuring labor or, services, materials, plans, or specifications for an improvement in any case where more than 4 family living units are to be provided or added by such work of improvement, if the improvement is wholly residential in character, or in any case where more than 10,000 total usable square feet of floor space is to be provided or added by such work of improvement, if the improvement is partly or wholly nonresidential in character.
204,16 Section 16. 779.02 (1) (e) of the statutes is amended to read:
779.02 (1) (e) By any lien claimant, other than a prime contractor, who performs, furnishes, or procures labor or, services, materials, plans, or specifications for an improvement on a project on which the prime contractor is not required to give notice under this section.
204,17 Section 17. 779.02 (2) (title) of the statutes is amended to read:
779.02 (2) (title) Notice to owner, lender , and materialman supplier.
204,18 Section 18. 779.02 (2) (a) of the statutes is amended to read:
779.02 (2) (a) Every prime contractor who enters into a contract with the owner for a work of improvement on the owner's land and who has contracted or will contract with any subcontractors or materialmen, suppliers, or service providers to provide perform, furnish, or procure labor or, services, materials, plans, or specifications for the work of improvement shall include in any written contract with the owner the notice required by this paragraph, and shall provide the owner with a copy of the written contract. If no written contract for the work of improvement is entered into, the notice shall be prepared separately and served personally or by registered mail on the owner or authorized agent within 10 days after the first labor or, services, materials, plans, or specifications are performed, furnished, or procured for the improvement by or pursuant to the authority of the prime contractor. The notice, whether included in a written contract or separately given, shall be in at least 8-point bold type, if printed, or in capital letters, if typewritten. It shall be in substantially the following language: "As required by the Wisconsin construction lien law, builder claimant hereby notifies owner that persons or companies performing, furnishing, or procuring labor or, services, materials, plans, or specifications for the construction on owner's land may have lien rights on owner's land and buildings if not paid. Those entitled to lien rights, in addition to the undersigned builder claimant, are those who contract directly with the owner or those who give the owner notice within 60 days after they first perform, furnish , or procure labor or, services, materials , plans or specifications for the construction. Accordingly, owner probably will receive notices from those who perform, furnish , or procure labor or, services, materials , plans, or specifications for the construction, and should give a copy of each notice received to the mortgage lender, if any. Builder Claimant agrees to cooperate with the owner and the owner's lender, if any, to see that all potential lien claimants are duly paid".
204,19 Section 19. 779.02 (2) (b) of the statutes is amended to read:
779.02 (2) (b) Every person other than a prime contractor who performs, furnishes, or procures labor or, materials, plans, or specifications for an improvement shall have the lien and remedy under this subchapter only if within 60 days after performing, furnishing, or procuring the first labor or, services, materials, plans, or specifications the person gives serves a written notice in writing, in 2 signed copies, to the owner either by personal service on the owner or authorized agent or by registered mail with return receipt requested to the owner or authorized agent at the last-known post-office address. The owner or agent shall provide a copy of the notice received, within 10 days after receipt, to any mortgage lender who is furnishing or is to furnish funds for construction of the improvement to which the notice relates. The notice to the owner shall be in substantially the following language, with blanks accurately filled in: "As a part of your construction contract, your prime contractor or builder claimant has already advised you that those who perform, furnish, or procure labor or, services, materials, plans, or specifications for the work will be notifying you. The undersigned first performed, furnished, or procured labor or, services, materials, plans, or specifications on .... (give date) for the improvement now under construction on your real estate at .... (give legal description, street address or other clear description). Please give your mortgage lender the extra copy of this notice within 10 days after you receive this, so your lender, too, will know that the undersigned is included in the job".
204,20 Section 20. 779.02 (2) (c) of the statutes is amended to read:
779.02 (2) (c) If any prime contractor required to give the notice prescribed in par. (a) fails to give notice as required, such the prime contractor does not have the lien and remedy provided by this subchapter unless the prime contractor pays all of the prime contractor's obligations to its subcontractors and materialmen , suppliers, and service providers in respect to the work of improvement within the time periods under s. 779.06 and until the time for notice under par. (b) has elapsed and no lien claimant either none of its subcontractors, suppliers, or service providers gives notice as a lien claimant under par. (b) gives notice or all of its subcontractors, suppliers, and service providers have waived all lien rights in full under s. 779.05.
204,21 Section 21. 779.02 (2) (d) of the statutes is amended to read:
779.02 (2) (d) Every mortgage lender making an improvement or construction loan shall make reasonable inquiry of the owner as to whether any notices required by this subsection have been given. A lender is not required to pay out any loan proceeds unless or until the prime contractor has given any notice required of such the prime contractor by this subsection.
204,22 Section 22. 779.02 (2) (e) of the statutes is amended to read:
779.02 (2) (e) If the owner or lender complains of any insufficiency of any notice, the burden of proof is upon the owner or lender to show that he or she has been misled or deceived by the insufficiency. If there is more than one owner, giving the notice required to any one owner or authorized agent is sufficient. In addition, every prime contractor and subcontractor, at the time of purchasing or contracting for any materials to be used in any of the cases enumerated in s. 779.01, shall upon request deliver to the materialman supplier a description of the real estate upon which the materials are to be used and the name and post-office address of the owner and authorized agent, if any. Failure to receive such description and name and address does not relieve a materialman supplier who asserts a lien from the requirement of giving timely notice.
204,23 Section 23. 779.02 (3) of the statutes is amended to read:
779.02 (3) Failure to give notice; saving clause. Any lien claimant, other than the prime contractor, who fails to give a notice as required by sub. (2) (b) shall have no lien on the land or improvement to which the failure relates. Any claimant who serves a late but otherwise proper notice personally or by registered mail on the owner or authorized agent shall have the lien provided by s. 779.01 for any labor or, services, materials, plans, or specifications performed, furnished, or procured after the late notice is actually received by the owner. The burden of proving that labor or, services, materials, plans, or specifications for which a lien is claimed were furnished after that date is on the lien claimant.
204,24 Section 24. 779.02 (5) of the statutes is amended to read:
779.02 (5) Theft by contractors. The proceeds of any mortgage on land paid to any prime contractor or any subcontractor for improvements upon the mortgaged premises, and all moneys paid to any prime contractor or subcontractor by any owner for improvements, constitute a trust fund only in the hands of the prime contractor or subcontractor to the amount of all claims due or to become due or owing from the prime contractor or subcontractor for labor and, services, materials, plans, and specifications used for the improvements, until all the claims have been paid, and shall not be a trust fund in the hands of any other person. The use of any such moneys by any prime contractor or subcontractor for any other purpose until all claims, except those which are the subject of a bona fide dispute and then only to the extent of the amount actually in dispute, have been paid in full or proportionally in cases of a deficiency, is theft by the prime contractor or subcontractor of moneys so misappropriated and is punishable under s. 943.20. If the prime contractor or subcontractor is a corporation, limited liability company, or other legal entity other than a sole proprietorship, such misappropriation also shall be deemed theft by any officers, directors or, members, partners, or agents of the corporation responsible for the misappropriation. Any of such misappropriated moneys which have been received as salary, dividend, loan repayment, capital distribution or otherwise by any shareholder of the corporation, member, or partner not responsible for the misappropriation shall be a civil liability of the shareholder that person and may be recovered and restored to the trust fund specified in this subsection by action brought by any interested party for that purpose. Except as provided in this subsection, this section does not create a civil cause of action against any other person other than the prime contractor or subcontractor to whom such moneys are paid. Until all claims are paid in full, have matured by notice and filing or have expired, such proceeds and moneys shall not be subject to garnishment, execution, levy or attachment.
204,25 Section 25. 779.03 (1) of the statutes is amended to read:
779.03 (1) No agreement by other than claimant may invalidate lien. Subject to s. 779.05, a lien claimant may waive the lien given by s. 779.01 by a writing signed by the lien claimant, but no action by nor agreement between any other persons shall invalidate the lien, other than payment in full to the claimant for the labor or , services, materials, plans, or specifications to which the lien claim relates.
204,26 Section 26. 779.035 (1) of the statutes is amended to read:
779.035 (1) To eliminate lien rights as provided in s. 779.03 (2), the contract between the owner and the prime contractor for the construction of the improvement shall contain a provision for the payment by the prime contractor of all claims for labor performed and, services, materials or, plans, or specifications performed, furnished, procured, used, or consumed, except plans or specifications furnished by the architect, professional engineer or surveyor employed by the owner, in making such improvement and performing the work of improvement. The contract shall not be effective to eliminate lien rights unless the prime contractor gives a bond issued by a surety company licensed to do business in this state. The bond shall carry a penalty for unpaid claims of not less than the contract price, and shall be conditioned for the payment to every person entitled thereto of all the claims for labor performed, and, services, materials, plans, and specifications performed, furnished, or procured under the contract and subsequent amendments thereto, to be used or consumed in making the improvement or performing the work of improvement as provided in the contract and subsequent amendments thereto. The bond shall be approved by the owner and by any mortgage lender furnishing funds for the construction of the improvement. No assignment, modification or change in the contract, or change in the work covered thereby, or any extension of time for completion of the contract shall release the sureties on the bond.
204,27 Section 27. 779.035 (2) (b) 1. of the statutes is amended to read:
779.035 (2) (b) 1. Except as provided in subd. 2., a subcontractor or, supplier, or service provider may maintain an action under par. (a) only if the subcontractor or , supplier, or service provider has notified the prime contractor in writing that the subcontractor or, supplier, or service provider was providing performing, furnishing, or procuring labor or, services, materials, plans, or specifications for the construction of the improvement. The notice must be provided no later than 60 days after the date on which the subcontractor or, supplier, or service provider first provided performed, furnished, or procured the labor or, services, materials, plans, or specifications.
204,28 Section 28. 779.035 (2) (b) 2. a. of the statutes is amended to read:
779.035 (2) (b) 2. a. The contract for the provision of performing, furnishing, or procuring the labor or, services, materials, plans, or specifications does not exceed $5,000.
204,29 Section 29. 779.035 (2) (b) 2. c. of the statutes is amended to read:
779.035 (2) (b) 2. c. The subcontractor or , supplier, or service provider is listed in a written contract, or in a document appended to a written contract, between a subcontractor or, supplier, or service provider and the prime contractor.
204,30 Section 30. 779.035 (3) of the statutes is amended to read:
779.035 (3) In any case in which the improvement contract and bond have been prepared and executed pursuant to sub. (1) upon inquiry by any subcontractor, materialman supplier, service provider, laborer, or mechanic performing, furnishing, or procuring labor or, services, materials, plans, or specifications for said improvement, the prime contractor and the owner shall so advise the person making the inquiry and shall give the person reasonable opportunity to inspect and examine the contract and bond.
204,31 Section 31. 779.036 (1) of the statutes is amended to read:
779.036 (1) In any case in which an improvement is constructed or to be constructed pursuant to a contract and payment bond under s. 779.035, any person performing, furnishing, or procuring labor or , services, materials or, plans, or specifications to be used or consumed in making the improvement, to any prime contractor or subcontractor shall have a lien on the money or other payment due or to become due the prime contractor or subcontractor therefor, if the lienor, before payment is made to the prime contractor or subcontractor, gives serves a written notice of the lienor's claim by registered mail with return receipt requested to on the owner or authorized agent and to on any mortgage lender furnishing funds for the construction of the improvement. Upon receipt of the notice, the owner and lender shall assure that a sufficient amount is withheld to pay the claim and, when it is admitted or not disputed by the prime contractor or subcontractor involved or established under sub. (3), shall pay the claim and charge it to the prime contractor or subcontractor as appropriate. Any owner or lender violating this duty shall be liable to the claimant for the damages resulting from the violation. There shall be no preference among lienors serving such notices.
204,32 Section 32. 779.036 (2) of the statutes is amended to read:
779.036 (2) A copy of the notice provided in sub. (1) also shall be served by the lienor, within 7 days after service of the notice upon the owner and lender, upon the prime contractor or subcontractor by registered mail with return receipt requested.
204,33 Section 33. 779.036 (3) of the statutes is amended to read:
779.036 (3) If the prime contractor or subcontractor does not dispute the claim by serving written notice on the owner and the lien claimant within 30 days after service of written notice under sub. (2), by registered mail with return receipt requested to the owner and lender, the amount claimed shall be paid over to the claimant on demand and charged to the prime contractor or subcontractor pursuant to sub. (1). If the prime contractor or subcontractor disputes the claim, the right to a lien and to the moneys in question shall be determined in an action brought by the claimant or the prime contractor or subcontractor. If the action is not brought within 3 months from the time the notice required by sub. (1) is served, the lien rights under this section are barred.
204,34 Section 34. 779.036 (4) (a) of the statutes is amended to read:
779.036 (4) (a) When the total lien claims exceed the sum due the prime contractor or subcontractor concerned and where the prime contractor or subcontractor has not disputed the amounts of the claims filed, the owner with the concurrence of the lender shall determine on a proportional basis who is entitled to the amount being withheld and shall notify serve a written notice of the determination on all claimants and the prime contractor or subcontractor in writing of the determination. Unless an action is commenced by a claimant or by the prime contractor or subcontractor within 20 days after the mailing service of said notice, the money shall be paid out in accordance with the determination and the liability of the owner and lender to any claimant shall cease.
204,35 Section 35. 779.05 (1) of the statutes is amended to read:
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