Insofar as the possessory right and lien of the person performing labor and services under this section are released, relinquished and lost by the removal of property upon which a lien has accrued, it is prima facie evidence of intent to defraud if upon the removal of such property, the person removing the property issues any check or other order for the payment of money in payment of the indebtedness secured by the lien, and thereafter stops payment on the check or order. This subsection does not apply when a check is stopped because the product is improperly repaired or improperly serviced and the product has been returned to the person performing the labor or services for proper repair or service.
See s. 779.48 (2)
for method of enforcing a mechanics' lien.
The lien of a garage keeper who did not obtain the consent of the lienholder to make the repairs was limited to the statutory amount, and the garage keeper could not claim more under a theory of unjust enrichment. Industrial Credit Co. v. Inland G. M. Diesel, 51 Wis. 2d 520
, 187 N.W.2d 157
Upon a conditional release of personal property by the lienor, the lien is enforceable against all parties except a bona fide purchaser for value or a subsequent levying creditor with no notice of the lien. M&I Western State Bank v. Wilson, 172 Wis. 2d 357
, 493 N.W.2d 387
(Ct. App. 1992).
The legislature did not create a crime or invoke criminal penalties in enacting sub. (3), which renders stopping payment on a check used to pay for certain repairs to personal property “prima facie evidence of intent to defraud." This section could operate to establish prima facie evidence of only one of the elements of the crime of theft defined in s. 943.20 (1) (d). 63 Atty. Gen. 81.
Liens on vehicles for towing and storage. 779.415(1g)(a)(a)
Every motor carrier holding a permit to perform vehicle towing services, every licensed motor vehicle salvage dealer, and every licensed motor vehicle dealer who performs vehicle towing services or stores a vehicle, when such towing or storage is performed at the direction of a traffic officer or the owner of the vehicle, shall, subject to sub. (1m) (b)
, have a lien on the vehicle for reasonable towing and storage charges, and may retain possession of the vehicle, until such charges are paid. If the vehicle is subject to a lien perfected under ch. 342
, a towing lien shall have priority only to the extent of $100 for a vehicle having a manufacturer's gross weight rating of 20,000 pounds or less and $350 for a vehicle having a manufacturer's gross weight rating of more than 20,000 pounds and a storage lien shall have priority only to the extent of $10 per day but for a total amount of not more than $600 for a vehicle having a manufacturer's gross weight rating of 20,000 pounds or less and $25 per day but for a total amount of not more than $1,500 for a vehicle having a manufacturer's gross weight rating of more than 20,000 pounds. If the value of the vehicle exceeds $750, the lien may be enforced under s. 779.48 (2)
. If the value of the vehicle does not exceed $750, the lien may only be enforced by sale or junking as provided in sub. (2)
If the vehicle is towed or stored under the directions of a traffic officer, any personal property within the vehicle shall be released to the owner of the vehicle as provided under s. 349.13 (5) (b) 2.
No additional charge may be assessed against the owner for the removal or release of the personal property within the vehicle.
Annually, on January 1, the department of agriculture, trade and consumer protection shall adjust the dollar amounts identified under par. (a)
by the annual change in the consumer price index, as determined under s. 16.004 (8) (e) 1.
, and publish the adjusted figures.
Within 30 days after taking possession of a vehicle, every motor carrier, licensed motor vehicle salvage dealer, and licensed motor vehicle dealer under sub. (1g)
shall send written notice to the owner of the vehicle and the holder of the senior lien on the vehicle informing them that they must take steps to obtain the release of the vehicle.
To repossess the vehicle, the senior lienholder must pay all towing and storage charges that have a priority under sub. (1g) (a)
and all reasonable storage charges that have accrued after 60 days from the date on which possession of the vehicle was taken. Failure to notify the senior lienholder as provided in par. (a)
renders void, with respect to the senior lienholder, any lien to which the motor carrier, licensed motor vehicle salvage dealer, or licensed motor vehicle dealer would otherwise be entitled under sub. (1g)
At least 20 days prior to sale or junking, notice thereof shall be given by certified mail to the person shown to be the owner of the vehicle in the records of the department of transportation and to any person who has a lien on such vehicle perfected under ch. 342
, stating that unless the vehicle owner or the owner's agent pays all reasonable towing and storage charges for the vehicle within said 20 days the vehicle will be exposed for sale or junked, as the case may be. If the proceeds of the sale exceed the charges, the balance shall be paid to the holder of the senior lien perfected under ch. 342
, and if none, then to the owner as shown in the records of the department of transportation.
Obtaining mechanic's services by misrepresentation of interest in personal property.
Any person who, for the purpose of inducing any mechanic, or keeper of a garage or shop, or the employer of a mechanic to transport, make, alter, repair or do any work on any personal property, makes any misrepresentation as to the nature or extent of the person's interest in said property or as to any lien upon said property shall be fined not more than $200 or imprisoned not more than 6 months or both.
History: 1979 c. 32
; 1979 c. 176
; Stats. 1979 s. 779.42.
Liens of keepers of hotels, livery stables, garages, marinas and pastures. 779.43(1)(a)
“Boarding house" includes a house or other building where regular meals are generally furnished or served to 3 or more persons at a stipulated amount for definite periods of one month or less.
“Lodging house" includes any house or other building where rooms or lodgings are generally rented to 3 or more persons received or lodged for hire, or any part of a house or other building that is let for sleep at stipulated rentals for definite periods of one month or less, whether any or all of the rooms or lodgings are let or used for light housekeeping or not, except that duplex flats or apartment houses actually divided into residential units shall not be considered lodging houses.
“Marina" includes any property used for the storage, repair or mooring of boats, whether on land or in water.
Except as provided in par. (b)
, every keeper of an inn, hotel, boarding house or lodging house shall have a lien upon and may retain possession of all baggage and other effects brought into the place by any guest, boarder or lodger, whether the baggage and effects are the property of or under the control of the guest, boarder or lodger, or are the property of any other person liable for the board and lodging for the proper charges owing the keeper for board, lodging and other accommodation furnished to or for a guest, boarder or lodger, and for all moneys loaned, not exceeding $50, and for extras furnished at the written request signed by the guest, boarder or lodger, until the charges are paid. Any execution or attachment levied upon the baggage or effects shall be subject to the lien given by this section and the costs of satisfying it.
The lien given by this section does not cover charges for alcohol beverages nor the papers of any soldier, sailor or marine that are derived from and evidence of military or naval service or adjusted compensation, compensation, pension, citation medal or badge.
Subject to sub. (4)
, every keeper of a garage, marina, livery or boarding stable, and every person pasturing or keeping any carriages, automobiles, boats, harness or animals, and every person or corporation, municipal or private, owning any airport, hangar or aircraft service station and leasing hangar space for aircraft, shall have a lien thereon and may retain the possession thereof for the amount due for the keep, support, storage or repair and care thereof until paid. But no garage or marina keeper shall exercise the lien upon any automobile or boat unless the keeper gives notice of the charges for storing automobiles or boats on a signed service order or by posting in some conspicuous place in the garage or marina a card that is easily readable at a distance of 15 feet.
The lien of a marina keeper under this section is subject to the lien of any security interest in the boat that is perfected as provided by law prior to the commencement of the services for which the lien is claimed unless the services were done with the express consent of the holder of the security interest, but only for charges in excess of $1,200.
Within 30 days after the charges for the services of a marina keeper become past due, the marina keeper shall send written notice to the owner of the boat and the holder of the senior lien on the boat informing them that they must take steps to obtain the release of the boat. To reclaim the boat, the owner or the senior lienholder must pay all charges that have a priority over other security interests under par. (a)
and all reasonable storage charges on the boat that have accrued after 60 days from the date that the charges for the services became past due. A reasonable effort to notify the owner and the holder of the senior lien satisfies the notice requirement under this paragraph. Failure to make a reasonable effort to notify the owner and the senior lienholder renders void any lien to which the marina keeper may be entitled under this section.
A lien of a marina keeper under this section is in addition to any remedy available under ch. 780
History: 1979 c. 32
; 1979 c. 176
; Stats. 1979 s. 779.43; 1981 c. 79
; 1995 a. 331
; 1997 a. 254
No garage keeper's lien is imposed under sub. (3) when storage occurs without an owner's consent. Bob Ryan Leasing v. Sampair, 125 Wis. 2d 266
, 371 N.W.2d 405
(Ct. App. 1985).
Following transfer of ownership of a vehicle in possession of a garage keeper, for the garage keeper to have a lien on the vehicle under sub. (3) enforceable against the new owner, two criteria must have been met: 1) the garage keeper must have satisfied the notice requirements of sub. (3); and 2) the bailment of the vehicle must have been with the new owner's consent. The consent required by Bob Ryan
is necessarily limited. While a party might consent expressly, for example by signing a work order, a party might also consent impliedly. Toyota Motor Credit Corporation v. North Shore Collision, LLC, 2011 WI App 38
, 332 Wis. 2d 201
, 796 N.W.2d 832
Liens of consignees.
Every consignee of property shall have a lien thereon for any money advanced or negotiable security given by the consignee to or for the use of the person in whose name the shipment of such property is made, and for any money or negotiable security received by such person for personal use unless the consignee shall, before advancing any such money, or giving such security, or before it is so received for personal use, have notice that such person is not the actual owner thereof.
History: 1979 c. 32
; 1979 c. 176
; Stats. 1979 s. 779.44.
A consignment need not be for the purpose of sale. A tender of the amount due must be made and is not waived merely by an excessive demand for payment made in good faith and in ignorance of the scope of the lien. Power Transmission Equipment Corp. v. Beloit Corp. 55 Wis. 2d 540
, 201 N.W.2d 13
Liens of factors, brokers, etc.
Every factor, broker or other agent entrusted by the owner with the possession of any bill of lading, customhouse permit, warehouse receipt or other evidence of the title to personal property, or with the possession of personal property for the purpose of sale or as security for any advances made or liability incurred by the factor, broker or agent in reference to such property, shall have a lien upon such personal property for all such advances, liability incurred or commissions or other moneys due for services as such factor, broker or agent, and may retain the possession of such property until such advances, commissions or moneys are paid or such liability is discharged.
History: 1979 c. 32
; 1979 c. 176
; Stats. 1979 s. 779.45.
Every jeweler, watchmaker or silversmith who shall do any work on any article at the request of the owner or legal possessor of such property, shall have a lien upon and may retain the possession of such article until the charges for alteration, repair or other work have been paid.
History: 1979 c. 32
; Stats. 1979 s. 779.46.
Plastics fabricator's lien. 779.47(1)(a)
“Plastics fabricator" means a person who uses toolings to fabricate or manufacture plastic products or a person who makes or provides toolings for use in the fabrication or manufacture of plastic products.
“Toolings" includes masters, models, patterns, tools, dies, molds, jigs, fixtures, forms and designs that are used in the fabrication or manufacture of plastic products.
Subject to sub. (2m)
, a plastics fabricator shall have a lien on all toolings and plastic products in the plastics fabricator's possession that belong to the customer for the amount owed the plastics fabricator by the customer for toolings or for plastics fabrication processing or work. The plastics fabricator may retain possession of the toolings until the amount owed is paid or satisfied.
(2m) Attachment and perfection.
A lien under sub. (2)
attaches and is perfected 30 days after the date on which plastic products are delivered to the customer unless the customer notifies the plastics fabricator within that time period that the products failed to meet an approved quality control plan, the products deviated from approved samples or the products deviated from previously accepted parts and the customer returns the products within 60 days after the date on which the products are delivered to the customer.
A lien under sub. (2)
does not take priority over an existing perfected security interest.
History: 1993 a. 328
Every person given a lien by ss. 779.43
, except s. 779.43 (3)
, or as bailee for hire, carrier, warehouse keeper or pawnee or otherwise, by common law, may, in case the claim remain unpaid for 3 months and the value of the property affected thereby does not exceed $100, sell such property at public auction and apply the proceeds of such sale to the claim and the expenses of such sale. Notice in writing, of the time and place of the sale and of the amount claimed to be due shall be given to the owner of such property personally or by leaving the same at the owner's place of abode, if a resident of this state, and if not, by publication thereof, in the county in which such lien accrues, as a class 3 notice, under ch. 985
. If such property exceeds in value $100, then such lien may be enforced against the same by action.
Every person given a lien by ss. 779.41
and 779.43 (3)
may in case the claim remains unpaid for 2 months after the debt is incurred, and a person given a lien under s. 779.47 (2)
may if the claim remains unpaid 90 days after the lien is perfected, enforce such lien by sale of the property substantially in conformity with subch. VI of ch. 409
and the lien claimant shall have the rights and duties of a secured party thereunder. When such sections are applied to the enforcement of such lien the word debtor or equivalent when used therein shall be deemed to refer to the owner of the property and any other person having an interest shown by instrument filed as required by law or shown in the records of the department of transportation, and the word indebtedness or equivalent shall include all claims upon which such lien is based.
Requirements of a common law lien are discussed. Even though some of the goods are returned, the lien may exist on the balance retained for the whole amount due. Moynihan Associates, Inc. v. Hanisch, 56 Wis. 2d 185
, 201 N.W.2d 534
“Customer" means a person who does any of the following:
Causes a special tool builder to design, develop, manufacture, assemble, or otherwise make a special tool.
Orders a product from a manufacturer that is produced with a special tool or causes a manufacturer to use a special tool.
“Intellectual property" means a design, program, or process.
“Manufacturer" means a person who uses a special tool as part of the person's manufacturing process.
“Special tool" means a tool, die, jig, gauge, gauging fixture, metal casting, pattern, forging, machinery, ferrous or nonferrous machined part, or intellectual property used for the purpose of designing, developing, manufacturing, assembling, or fabricating a metal part.
“Special tool builder" means a person who designs, develops, manufactures, fabricates, or assembles a special tool.
A special tool builder who does all of the following has a lien on a special tool in the amount that a customer or manufacturer owes the special tool builder for designing, developing, manufacturing, fabricating, assembling, repairing, or modifying the special tool:
Permanently records on the special tool the special tool builder's name, street address, city, and state, or other traceable identification.
A special tool builder's lien attaches and is perfected on the date that both of the requirements specified in subd. 1. a.
A special tool builder retains a special tool builder's lien even if the special tool builder does not have physical possession of the special tool for which the lien is claimed.
A special tool builder's lien remains valid until the first of any of the following occurs:
The customer or manufacturer pays the special tool builder the amount for which the special tool builder's lien is claimed.
An attached and perfected special tool builder's lien has priority over any other lien that subsequently attaches to the special tool.
A special tool builder may not enforce a special tool builder's lien unless the builder provides notice in writing to the customer, manufacturer, or both that owes the builder the amount for which the special tool builder's lien is claimed. The notice shall be delivered personally or by registered mail, return receipt requested, to the last-known address of the customer, manufacturer, or both and shall state that the builder is claiming a lien for the amount that customer, manufacturer, or both owes the special tool builder for designing, developing, manufacturing, fabricating, assembling, repairing, or modifying the special tool and that the builder demands payment for the amount. Except as provided in subd. 2.
, if the special tool builder is not paid the amount claimed within 90 days after either the customer or, if applicable, the manufacturer receives the notice, whichever is later, the builder has the right to possession of the special tool and the builder may enforce the right by any available judicial procedure or by taking possession of the special tool without judicial process, but only if the taking is done without breach of the peace.
If the postal service returns any notice required under subd. 1.
as undeliverable, the special tool builder may enforce the right to possession under subd. 1.
no sooner than 90 days after the special tool builder publishes, under ch. 985
, a class 1 notice of the intended enforcement of the right to possession in a newspaper of general circulation in the place where the special tool is last known to be located and in the place of the last-known address of any person for which the postal service returns a notice as undeliverable.
Unless otherwise agreed by a customer and manufacturer in writing, all rights, title, and interest of a customer in a special tool that a manufacturer has used to produce parts ordered by the customer or that the customer has caused a manufacturer to use are transferred to the manufacturer for the purpose of destroying the special tool, if all of the following are satisfied:
The special tool has been in the possession of the manufacturer during the one-year period beginning after the manufacturer's last use of the special tool.
The customer has not claimed possession of the special tool before the expiration of the one-year period specified in subd. 1. a.
After the expiration of the one-year period specified in subd. 1. a.
, the manufacturer provides written notice by registered mail, return receipt requested, to an address designated in writing by the customer or, if the customer has made no such designation, to the customer's last-known address, that indicates that the manufacturer intends to terminate the customer's rights, title, and interest in the special tool and transfer those rights, title, and interest to the manufacturer as provided in this paragraph.
The customer has not, within 120 days after the date that the manufacturer receives the return receipt of notice specified in subd. 1. c.
or within 120 days after the manufacturer provides notice if no return receipt is received within that period, claimed possession of the special tool or agreed to other arrangements with the manufacturer for storage of the special tool.
The one-year period specified in subd. 1. a.
applies retroactively to special tools last used before April 29, 2006.