See s. 779.48 (2)
for method of enforcing a mechanics' lien.
Where a garageman did not obtain the consent of the lienholder to the repairs, his lien is limited to the statutory amount and he cannot claim more under a theory of unjust enrichment. Industrial Credit Co. v. Inland G. M. Diesel, 51 W (2d) 520, 187 NW (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 W (2d) 357, 493 NW (2d) 387 (Ct. App. 1992).
The legislature did not create a crime or invoke criminal penalties in enacting (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 943.20 (1) (d). 63 Atty. Gen. 81.
Liens on motor vehicles for towing and storage. 779.415(1)(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 motor vehicle, when such towing or storage is performed at the direction of a traffic officer or the owner of the vehicle, shall, if the vehicle is not claimed as provided herein, have a lien on the motor 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 $75 for a motor vehicle having a gross weight of 20,000 pounds or less and $250 for a motor vehicle having a gross weight of more than 20,000 pounds and a storage lien shall have priority only to the extent of $7 per day but for a total amount of not more than $420 for a motor vehicle having a gross weight of 20,000 pounds or less and $20 per day but for a total amount of not more than $1,200 for a motor vehicle having a gross weight of more than 20,000 pounds. If the value of the vehicle exceeds $500, the lien may be enforced under s. 779.48 (2)
. If the value of the vehicle does not exceed $500, the lien may be enforced by sale or junking substantially 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.
Within 30 days after taking possession of a motor vehicle, every motor carrier, licensed motor vehicle salvage dealer and licensed motor vehicle dealer under sub. (1)
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 motor vehicle. To reclaim the vehicle, the owner or the senior lienholder must pay all towing and storage charges that have a priority under sub. (1) (a)
and all reasonable storage charges that have accrued after 60 days from the date on which possession of the motor vehicle was taken. A reasonable effort to so notify the owner and the holder of the senior lien satisfies the notice requirement of this subsection. Failure to make a reasonable effort to so notify the owner and the senior lienholder renders void any lien to which the motor carrier, licensed motor vehicle salvage dealer or licensed motor vehicle dealer would otherwise be entitled under sub. (1)
At least 20 days prior to sale or junking, notice thereof shall be given by registered 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 is claimed by the owner or the owner's agent 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 building where regular meals are generally furnished or served to three or more persons at a stipulated amount for definite periods of one month or less.
"Lodging house" includes any house or building or part thereof where rooms or lodgings are generally rented to three or more persons received or lodged for hire, or any part thereof is let in which to sleep at stipulated rentals for definite periods of one month or less, whether any or all such rooms or lodgings are let or used for light housekeeping or not, provided that so called duplex flats or apartment houses actually divided into residential units shall not be considered a lodging house.
"Marina" includes any property used for the storage, repair or mooring of boats, whether on land or in water.
Every keeper of an inn, hotel, boarding house or lodging house shall have a lien upon and may retain the possession of all the 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 the property of any other person liable for such board and lodging for the proper charges owing such keeper for board, lodging and other accommodation furnished to or for such guest, boarder or lodger, and for all moneys loaned, not exceeding fifty dollars, and for extras furnished at the written request signed by the guest, boarder or lodger, until such charges are paid, and any execution or attachment levied upon such baggage or effects shall be subject to such lien and the costs of satisfying it. But 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
No garage keeper's lien is imposed under (3) where storage occurs without owner's consent. Bob Ryan Leasing v. Sampair, 125 W (2d) 266, 371 NW (2d) 405 (Ct. App. 1985).
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 Eq. Corp. v. Beloit Corp. 55 W (2d) 540, 201 NW (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
How such liens enforced. 779.48(1)
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 ss. 409.501
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 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 W (2d) 185, 201 NW (2d) 534.
BREEDING ANIMAL, THRESHING LIENS, ETC.
Lien of owner of breeding animal or methods. 779.49(1)(1)
Every owner of a stallion, jackass or bull, or semen from such an animal, kept and used for breeding purposes shall have a lien upon any dam served and upon any offspring gotten by the animal, or by means of artificial insemination for the sum stipulated to be paid for the service thereof, and may seize and take possession of the dam and offspring or either without process at any time before the offspring is one year old, in case the price agreed upon for the service remains unpaid, and sell the offspring at public auction upon 10 days' notice, to be posted in at least 3 public places in the town where the service was rendered, and apply the proceeds of the sale to the payment of the amount due for the service and the expenses of the seizure and sale, returning the residue, if any, to the party entitled to it; provided, no lien shall be effectual for any purpose as against an innocent purchaser or mortgagee of the offspring or the dam of the offspring for value unless the owner having a claim for the service records with the register of deeds of the county where the owner of the dam served resides a statement showing that the service has been rendered and the amount due for the service.
Any person who sells, disposes of or gives a mortgage upon any dam which to the person's knowledge has been so served, the fee for which service has not been paid, without giving written information to the purchaser or mortgagee of the fact of such service, shall be guilty of a misdemeanor and upon conviction shall be fined not more than $10 or by confinement in the county jail not to exceed 60 days.
History: 1979 c. 32
; 1979 c. 176
; Stats. 1979 s. 779.49; 1993 a. 301
Lien for threshing, husking, baling; enforcement. 779.50(1)(1)
Every person who threshes grain, cuts, shreds, husks or shells corn or bales hay or straw by machine for another shall have a lien upon the same for the value of the services to the extent the person contracting for such services has an interest therein, from the date of the commencement of such service; and in case such services remain unpaid, the lien claimant may take possession of so much of such grain, corn, hay or straw as shall be necessary to pay for such services and the expenses of enforcing such lien, for the purpose of foreclosing said lien at any time within six months from the last charge for such services, and sell the same at public auction, upon notice of not less than ten nor more than fifteen days from the date of such seizure.
Notice of such sale shall be given personally and by posting in at least three public places in the town where the debtor resides, and also in the town where such sale is to be made; and if such debtor is a nonresident of the state, in the town where such grain, corn, hay or straw, or some part thereof, was threshed, cut, husked, shelled or baled, and apply the proceeds of such sale to the payment of such service, together with the expenses of such seizure and sale, returning the residue to the party entitled thereto.
The lien created by this section shall be preferred to all other liens and encumbrances, but does not apply to an innocent purchaser for value unless such lien is recorded in the office of the register of deeds of the county where the services were performed within 15 days from the date of the completion of such service.
History: 1979 c. 32
; 1979 c. 176
; Stats. 1979 s. 779.50; 1993 a. 301
Costs and expenses.
The costs and expenses of seizure and sale aforesaid shall be: Seizing grain, corn, hay or straw, fifty cents; posting up each notice, twelve cents; serving each notice of sale, twenty-five cents; for every copy of such notice delivered on request, twelve cents; for each mile actually traveled, going and returning to serve any notice; or to give or to post up notices of sale, ten cents; for conducting such sale, fifty cents; for collecting and paying over all sums upon such sale, five per cent; but in no case shall the whole percentage exceed ten dollars, and all necessary expenses incurred in taking possession of any grain, corn, hay or straw and preserving the same as shall be just and reasonable.
History: 1979 c. 32
; Stats. 1979 s. 779.52.
Maintenance liens. 779.70(1)(1)
Any corporation organized under the laws of this state as a nonprofit, membership corporation for the purpose of maintaining, improving, policing or preserving properties in which its members shall have common rights of usage and enjoyment, including, without limitation because of specific enumeration, private (not public) parks, plazas, roads, paths, highways, piers, docks, playgrounds, tennis courts, beaches, water pumping plant and connecting pipes or sewer plant and connecting pipes, shall have the power to prepare and annually submit to its membership a budget of the expenditures which it proposes to make for the ensuing year. Such budget shall include the expenses of maintaining the necessary organization of the corporation including salaries to officers, fees paid for auditing the books of the corporation and for necessary legal services and counsel fees to the governing board thereof.
Upon the adoption and approval of the annual budget by a majority of the members entitled to vote as established by the articles of incorporation and bylaws of the corporation and by rules validly adopted by resolution of the governing board of the corporation, at a regular meeting or adjournment thereof, or upon the approval of a special assessment under par. (e)
, the governing board of the corporation may levy an assessment not in excess of 8 mills on each dollar of assessed valuation, to be known as a maintenance assessment, against all of the lots, the ownership of which entitles the owner thereof to the use and enjoyment of the properties controlled by the corporation, but the limitation of 8 mills on each dollar of assessed valuation shall not apply in any case in which the property owners or their predecessors in title have, by written contract, or by the terms of their deeds of conveyance, assumed and agreed to pay the costs of maintaining those properties in which the owners have common rights of usage and enjoyment.
The assessment levied under this section shall be equal in amount against each parcel of contiguous lots under common ownership and with one dwelling house in a parcel, with the assessment prorated among the lots in the parcel, or equal in rate against the assessed value of each lot or equal in amount against each lot, at the option of the governing board as it directs each year, except as provided in pars. (c)
, and shall be levied at the same time once in each year upon all lots. Assessed value shall include the value of the land comprising the lot and the improvements thereon.
The governing board shall apportion the cost of operating water or sewer plants and facilities thereof and separate such costs from the other expenses of the budget and shall include the expenses of water and sewer plant maintenance only in the levy against those lots which may be improved with a dwelling house on the date when the levy is ordered, and no portion of such cost shall be assessed against the vacant lots or the owners thereof. In computing the cost of operating water or sewer line facilities thereof, reasonable reserves may be set up for depreciation of facilities.
If property owners or their predecessors in title have, by written contract, or by the terms of their deeds of conveyance, agreed to pay unequal amounts, dues or assessments to maintain those properties in which the owners have common rights of usage and enjoyment and if those amounts, dues or assessments which are not based on assessed valuations do not vary more than $25 between lots, then the governing board may apportion the costs of maintaining those properties in proportion to the amounts, dues or assessments specified in the agreement.
The governing board of a corporation may call a special meeting upon at least 5 days' written notice for the purpose of making a special assessment. The nature of the proposed special assessment shall be included in the notice. A majority of members entitled to vote shall constitute a quorum for a special meeting, and a majority of members entitled to vote who are present at the special meeting shall determine a question.
The governing board of such corporation shall declare the assessments so levied due and payable at any time after thirty days from the date of such levy and the secretary or other officer shall notify the owner of every lot so assessed of the action taken by the board, the amount of the assessment of each lot owned by such owner and the date such assessment becomes due and payable. Such notice shall be mailed to the owner at the last-known post-office address by the secretary by United States mail, with postage prepaid.
In the event that the assessment levied against any lot remains unpaid for a period of sixty days from the date of the levy, then the governing board of such corporation may, in its discretion, file a claim for a maintenance lien against such lot at any time within six months from the date of the levy, such claim to be filed in the office of the clerk of the circuit court of the county in which the lands affected thereby lie. Such claim for lien shall contain a reference to the resolution authorizing such levy and date thereof, the name of the claimant or assignee, the name of the person against whom the assessment is levied, a description of the property affected thereby and a statement of the amount claimed. It shall be signed by the claimant or by its attorney, and need not be verified, and may be amended, in case of action brought, by order of court, as pleadings may be.
The clerk of circuit court shall enter each claim for a maintenance lien in the judgment and lien docket immediately after the claim is filed in the same manner that other liens are entered. The date of levy of assessment will appear on the judgment and lien docket instead of the last date of performance of labor or furnishing materials.
When the corporation, described in sub. (1)
has so filed its claim for lien upon a lot it may foreclose the same by action in the circuit court having jurisdiction thereof, and ss. 779.09
shall apply to proceedings undertaken for the enforcement and collection of maintenance liens as described in this subsection.
History: 1977 c. 316
; 1979 c. 32
, 92 (9)
; 1979 c. 176
; Stats. 1979 s. 779.70; 1989 a. 31
; 1995 a. 224
DISPOSITION OF UNCLAIMED ARTICLES
Disposition of articles left for laundering, dry cleaning, repair, storage. 779.71(1)
Any garment, clothing, wearing apparel or household goods remaining in the possession of a person, firm, partnership or corporation, on which laundering, cleaning, pressing, glazing or dyeing has been done or upon which alteration or repairs have been made, or on which materials or supplies have been used or furnished, for a period of 6 months or more, may be sold to pay the reasonable or agreed charges and the cost of notifying the owner, after giving notice of said sale as specified in sub. (3)
to such owner. Property that is to be placed in storage after any of the services or labors mentioned herein are performed shall not be affected by the provisions of this subsection.
All garments, clothing, wearing apparel or household goods placed in storage, or on which any of the services or labors mentioned in sub. (1)
have been performed and then placed in storage by agreement and remaining in the possession of a person without the reasonable or agreed charges having been paid for a period of more than 18 months, may be sold to pay said charges after giving notice of said sale as specified in sub. (3)
to such owner, provided that where property was delivered to be cleaned, pressed, glazed or dyed, and left for storage in addition to having such work done, it shall not be so sold unless at the time of delivery the owner was given a receipt for such property containing a statement that the property will be sold when such 18 months have elapsed unless called for within such 18 months' period. Persons operating as warehouses or warehouse keepers shall not be affected by this subsection.
The mailing of a registered letter, with a return address marked thereon, addressed to the owner at their address given at the time of the delivery of the article or articles to a person, firm, partnership or corporation rendering any of the services or labors as set out in this section, stating the time and place of sale, shall constitute notice. Said notice shall be posted or mailed at least 30 days before the date of sale. The costs of posting or mailing said letter shall be added to the charges.
The person, firm, partnership or corporation to whom the charges are payable, shall, from the proceeds of sale, deduct the charges due plus the costs of notifying the owner and shall hold the overplus, if any, subject to the order of the owner and shall immediately thereafter mail to the owner at the owner's address, if known, a notice of the sale, the amount of overplus, if any, due the owner, and at any time within 12 months, upon demand by the owner, pay to the owner said sums of overplus.
All persons, firms, partnerships or corporations taking advantage of this section must keep posted in a prominent place in their receiving office or offices at all times 2 notices which shall read as follows: "All articles cleaned, pressed, glazed, laundered, washed, altered or repaired and not called for in 6 months will be sold to pay charges". "All articles stored by agreement and charges not having been paid for 18 months will be sold to pay charges".
History: 1979 c. 32
; 1979 c. 176
; Stats. 1979 s. 779.71; 1983 a. 500
Every corporation, association or other organization operating as a charitable institution and maintaining a hospital in this state shall have a lien for services rendered, by way of treatment, care or maintenance, to any person who has sustained personal injuries as a result of the negligence, wrongful act or any tort of any other person.
Such lien shall attach to any and all rights of action, suits, claims, demands and upon any judgment, award or determination, and upon the proceeds of any settlement which such injured person, or legal representatives might have against any such other person for damages on account of such injuries, for the amount of the reasonable and necessary charges of such hospital.
No such lien shall be effective unless a written notice containing the name and address of the injured person, the date and location of the event causing such injuries, the name and location of the hospital, and if ascertainable by reasonable diligence, the names and addresses of the persons alleged to be liable for damages sustained by such injured person, shall be filed in the office of the clerk of circuit court in the county in which such injuries have occurred, or in the county in which such hospital is located, or in the county in which suit for recovery of such damages is pending, prior to the payment of any moneys to such injured person or legal representatives, but in no event later than 60 days after discharge of such injured person from the hospital.