779.16
779.16
Theft by contractors. All moneys, bonds or warrants paid or to become due to any prime contractor or subcontractor for public improvements are 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, services, materials, plans, and specifications performed, furnished, or procured 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, members, partners, or agents 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, member, or partner not responsible for the misappropriation shall be a civil liability of 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 shall not create a civil cause of action against any person other than the prime contractor or subcontractor to whom such moneys are paid or become due. Until all claims are paid in full, have matured by notice and filing or have expired, such money, bonds and warrants shall not be subject to garnishment, execution, levy or attachment.
779.16 History
History: 1973 c. 231;
1975 c. 409;
1979 c. 32 s.
57; Stats. 1979 s. 779.16;
2005 a. 204.
779.16 Annotation
A fiduciary relationship exists between a prime contractor and subcontractor when the prime contractor has received payment for a public improvement. Loehrke v. Wanta Builders,
151 Wis. 2d 695,
445 N.W.2d 717 (Ct. App. 1989).
779.16 Annotation
Misappropriation of funds under this section was a nondischargeable debt in bankruptcy. Matter of Thomas,
729 F.2d 502 (1984).
779.17
779.17
Release of funds on filing bond. At any time after the service of a notice of lien claim or filing of judgment or pending the determination of any action commenced thereunder, the prime contractor shall be entitled to the release of any moneys due the prime contractor under the contract upon filing a bond, executed by a surety company duly authorized to transact business in this state, with the public authority having jurisdiction over the work, guaranteeing that the prime contractor will pay any judgment of the court rendered in favor of the lien claimant and all judgments filed. Such bond shall be in an amount sufficient to insure payment of the lien claims and judgments, and shall be approved as to form and amount by the public authority.
779.17 History
History: 1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.17;
2005 a. 204.
OTHER LIENS
779.18
779.18
Log liens; priority. 779.18(1)(1) Any person who, personally or by a beast or machine or vehicle, performs any services in cutting, hauling, running, felling, piling, driving, rafting, booming, cribbing, towing, sawing, peeling, kiln drying or manufacturing logs, timber, stave bolts, heading staves, pulp wood, cordwood, firewood, railroad ties, piling, telegraph poles, telephone poles, fence posts, paving timber, tan or other barks or in preparing wood for or manufacturing charcoal shall have a lien upon the material for the amount owing for the services, which shall take precedence of all other claims, liens or encumbrances thereon or sales thereof.
779.18(2)
(2) The right of lien given by this section survives any change in the property through manufacture and the lienor has a lien upon the manufactured product as though the services had been performed directly thereon.
779.18 History
History: 1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.18;
1981 c. 370.
779.19
779.19
Petition for log lien; filing same. No demand for the services may become a lien unless a petition therefor is signed and verified by the claimant or by someone in the claimant's behalf setting forth the nature of the demand, the amount claimed, a description of the property upon which the lien is claimed and that the petitioner claims a lien thereon. The petition shall be filed in the office of the clerk of the circuit court of the county in which the services or some part thereof were performed within 3 months after the last day of performing continuous services, and the services shall be deemed continuous notwithstanding a change of ownership in the property on which the lien is claimed. The clerk shall receive the fee prescribed in
s. 814.61 (5) for filing the petition.
779.19 History
History: 1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.19;
1981 c. 317.
779.20
779.20
Action to enforce log lien; parties; costs; change of venue. 779.20(1)(1) An action to enforce any lien under
s. 779.18 may be brought in the circuit court of the county where the petition is filed. This claim shall cease to be a lien unless an action to foreclose it is commenced within 4 months after filing the petition. If the claim is not due at the time of filing the petition the time when the claim will become due shall be stated in the petition, and in this case the claim shall not cease to be a lien until 30 days after the claim has become due and until 4 months after the filing of the petition.
779.20(2)
(2) Where the property subject to such lien has been taken from the county where such work was done the lienor may bring an action to foreclose the lien in any county where said property may be found. In all foreclosure actions the person liable for such claim shall be made defendant and any other person claiming to own or have any interest in such property may be made a defendant, but shall not be liable for costs unless defending the action. In actions appealed from municipal court no change of venue shall be allowed except for prejudice of the judge or of the people.
779.20 History
History: 1977 c. 449;
1979 c. 32 ss.
57,
92 (9);
1979 c. 176; Stats. 1979 s. 779.20.
779.21
779.21
Attachment, affidavit for; undertaking; service of writ. 779.21(1)(1) The plaintiff in this action may have remedy by attachment of the property upon which the lien is claimed as in personal actions; this attachment may be issued, served and returned and like proceedings had thereon including the release of any attached property as in personal actions. The affidavit for the attachment must state that the defendant who is personally liable is indebted to the plaintiff in the sum named, above all setoffs, for services which entitle the plaintiff to a lien, describe the property on which it is claimed that the services were performed and that the plaintiff has filed the petition for a lien pursuant to law. No other fact need be stated. No order may be made by any court or any judge thereof requiring an undertaking or security for costs except upon 10 days' notice to the plaintiff.
779.21(2)
(2) The writ of attachment shall direct the officer to attach the property described or so much thereof as shall be necessary to satisfy the sum claimed to be due and to hold the same subject to further proceedings in the action. The officer shall make return but it shall not be necessary for the officer to make an inventory or appraisal of the property attached; the officer shall pay any charges that may be due for booming or driving the property attached, and the amount paid shall be taxed as costs. Where personal service of the summons and writ of attachment cannot be made service shall be made as provided for service of summons on nonresidents or persons who cannot be found as in other actions.
779.21 History
History: 1977 c. 449;
1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.21.
779.24
779.24
Lien for camp supplies. All persons furnishing supplies necessary for the performing of the labor and services upon any property mentioned in
s. 779.18, at the request of the person engaging such labor or services, shall have the right of lien therefor and may enforce the same by action as herein provided for the enforcement of liens upon logs and timber.
779.24 History
History: 1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.24.
779.25
779.25
Lien for joint log driving. When logs or timber of different owners are so intermixed that they cannot be conveniently separated for driving and either owner neglects to make the necessary provision for driving them any other owner may drive all such logs or timber to the destination and shall receive reasonable compensation for driving the logs of the owner so neglecting and shall have a lien for such compensation and may enforce the same as provided for the enforcement of liens upon logs or timber.
779.25 History
History: 1979 c. 32 s.
57; Stats. 1979 s. 779.25.
779.26
779.26
Lien of improvement companies. Every company whose charter authorizes it to collect tolls on logs, lumber or timber shall have a lien thereon, with the remedies herein given to enforce liens for labor and services in respect to logs or timber.
779.26 History
History: 1979 c. 32 s.
57; Stats. 1979 s. 779.26.
779.28
779.28
Execution. In actions to enforce liens on property mentioned in
s. 779.18 the execution, in addition to the directions of ordinary executions upon judgments for money, shall direct that the property upon which a lien is found to exist or so much thereof as may be necessary for such purpose be sold to satisfy the judgment.
779.28 History
History: 1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.28.
779.29
779.29
Intervention. In an action for the enforcement of a lien upon property under
s. 779.18 a person not a party may, at any time before sale of the property upon which a lien is claimed, become a party defendant by filing with the clerk of the court where the action is pending an affidavit made in behalf of or by the person that the person is the owner of or of some interest in the property upon which a lien is claimed and believes that the claim for lien is invalid. Upon filing this affidavit the person may defend this action so far as a claim for a lien is concerned. If judgment has been previously rendered for a lien, the person may move the court for relief from the judgment within 20 days after the filing of the affidavit. The right to file an affidavit shall not extend beyond one year from the rendition of the judgment.
779.29 History
History: 1979 c. 32 ss.
57,
92 (9);
1979 c. 176; Stats. 1979 s. 779.29;
1983 a. 219.
779.29 Note
Judicial Council Note, 1983: This section is amended by repealing an appeal procedure and substituting the right to move the trial court for relief from its judgment. [Bill 151-S]
779.30
779.30
Undertaking by intervenor; procedure. The filing of an affidavit under
s. 779.29 shall not stay execution unless the intervenor files an undertaking, with 2 or more sureties, who shall each justify in a sum equal to double the amount of the judgment, conditioned that if the plaintiff establishes the right to a lien on the property they will pay the amount of judgment in the plaintiff's favor with costs; the undertaking shall be approved by the judge of the court; and upon filing it all proceedings upon the judgment shall be stayed during the pendency of the proceedings. If execution has been previously issued the same shall, upon presenting to the officer in whose custody it may be a certified copy of the affidavit and undertaking, be returned, and all property in which the intervenor claims an interest that may have been levied upon shall be released from the levy. If upon the trial the plaintiff recovers judgment of lien upon this property the judgment may be entered against the intervenor and sureties; but if the plaintiff does not establish the right to a lien the intervenor shall recover judgment for costs.
779.30 History
History: 1979 c. 32 ss.
57,
92 (9);
1979 c. 176; Stats. 1979 s. 779.30;
1983 a. 219.
779.31
779.31
Cook's lien. The person who prepares or serves the food for persons while they are performing lienable services upon any property mentioned in
s. 779.18, at the request of their employer shall have the right of lien therefor the same as those persons.
779.31 History
History: 1975 c. 94 s.
91 (9);
1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.31.
779.32
779.32
Commission liens. 779.32(1)(a)
(a) "Broker" means a real estate broker licensed under
ch. 452.
779.32(1)(b)
(b) "Commercial real estate" means any real property other than any of the following:
779.32(1)(b)2.
2. Real property that is zoned for residential purposes and that does not contain any buildings or structures.
779.32(1)(b)3.
3. Real property that is zoned for agricultural purposes.
779.32(2)
(2) Lien. If a broker complies with the notice requirements under
sub. (3) and perfects the lien under
sub. (4), all of the following apply:
779.32(2)(a)
(a) If the broker has earned a commission under a written commercial real estate listing contract, the broker has a lien for the unpaid amount of the commission against the commercial real estate, or the interest in commercial real estate, that is listed with the broker under the contract.
779.32(2)(b)
(b) If the broker has earned a commission under a written commercial real estate buyer agency agreement, the broker has a lien for the unpaid amount of the commission against the commercial real estate, or the interest in commercial real estate, that is acquired as a result of the agreement.
779.32(2)(c)
(c) If the broker has earned compensation under a written agreement for the lease or management of commercial real estate, the broker has a lien for the unpaid amount of the compensation against the commercial real estate for which the leasing or management services were provided under the agreement.
779.32(3)
(3) Notice of intent to claim lien. A broker has a lien under
sub. (2) (a) or
(b) only if the broker files or records a written notice of intent to claim a lien under this section at the office of the register of deeds for the county in which the commercial real estate is located and delivers a copy of the notice to the person owing the commission under
sub. (2) (a) or
(b). A broker has a lien under
sub. (2) (c) only if the broker provides a written notice of intent to claim a lien under this section to the person owing the compensation under
sub. (2) (c). All notices required under this subsection shall contain the name of each party to the agreement under which the lien is claimed, the date that the agreement was entered into and a brief description of the commercial real estate on which the lien is intended to be claimed. All notices required under this subsection shall be provided within the following time periods:
779.32(3)(a)
(a) In the case of a lien under
sub. (2) (a), at least 30 days before the conveyance of the commercial real estate subject to the listing contract.
779.32(3)(b)
(b) In the case of a lien under
sub. (2) (b), at least 30 days before the conveyance of the commercial real estate subject to the buyer agency agreement.
779.32(3)(c)
(c) In the case of a lien under
sub. (2) (c), before the date that the written agreement for the lease or management of commercial real estate is entered into.
779.32(4)(a)(a) A lien under this section is perfected when a broker files a notice of lien in the office of the register of deeds for the county in which the commercial real estate is located. The lien must be perfected no later than the following:
779.32(4)(a)1.
1. In the case of a lien under
sub. (2) (a) or
(b), 3 days prior to the date that the conveyance documents are recorded with the register of deeds in the county where the real property, that is the subject of the listing contract or buyer agency contract, is located.
779.32(4)(a)2.a.
a. The date that the broker earns a commission or compensation that gives rise to a lien under this section. For purposes of this
subd. 2. a., a commission or compensation is considered earned on the date that payment of it is due under the lease or management agreement.
779.32(4)(a)2.b.
b. The date that the broker receives notice that he or she has earned a commission or compensation that gives rise to a lien under this section. For purposes of this
subd. 2. b., a commission or compensation is considered earned on the date that the payment of it is due under the lease or management agreement.
779.32(4)(b)
(b) The notice of lien shall be signed by the broker and shall include all of the following information:
779.32(4)(b)2.
2. The name of the owner or acquirer of the commercial real estate that is subject to the lien.
779.32(4)(b)3.
3. The legal description of the commercial real estate that is subject to the lien.
779.32(4)(b)4.
4. The amount of the lien at the time the notice is filed.
779.32(4)(c)
(c) A broker shall mail a copy of the notice of lien to the owner or acquirer of the commercial real estate that is subject to the lien within 72 hours after the filing of the notice of lien under
par. (a). A lien under this section is effective only from the date that it is perfected under this subsection.
779.32(4)(d)
(d) A lien that is perfected under this subsection by a broker secures all unpaid commissions or compensation that is due that broker with respect to the commercial real estate subject to that lien, regardless of whether the commission or compensation was earned at the time the lien was filed.
779.32(4m)
(4m) Duty of register of deeds. If a notice of lien meets the requirements under
sub. (4), the register of deeds shall accept the notice of lien for filing. The register of deeds shall index the notice of lien under the name of the owner or acquirer of the commercial real estate who is subject to the lien. If the register of deeds maintains a tract index, the register of deeds shall also index the notice of lien under the legal description of the real estate against which a lien is claimed.
779.32(5)
(5) Priority. A lien under this section shall have priority over all other liens on the commercial real estate, except tax and special assessment liens, liens created under
subch. I of ch. 779, purchase money mortgages, liens that are filed or recorded before the lien under this section is perfected and any other lien given priority under the law.
779.32(8)(a)(a) Upon the request of any person interested in the real estate that is the subject of a lien under this section, the broker shall execute and deliver a satisfaction of lien to the interest party, if one of the following conditions is met:
779.32(8)(a)1.
1. The person owing the commission or compensation pays the broker in full the amount specified in the notice of lien.
779.32(8)(a)2.
2. The person owing the commission or compensation pays an amount equal to 125% of the commission or compensation owed into the trust account of the broker or the trust account of any attorney who does not represent any party to the dispute and who is in good standing with the State Bar of Wisconsin. The moneys shall be held in escrow until disbursed pursuant to the written mutual agreement of the parties or pursuant to a court order.
779.32(8)(a)3.
3. If the parties to the contract or agreement giving rise to the lien agree to binding arbitration regarding the disputed commission or compensation and if the parties to the contract or agreement, other than the broker, agree to pay all of the costs of the arbitration.
779.32(8)(b)
(b) Upon the filing of a satisfaction of lien under
par. (a) with the register of deeds, the register of deeds shall index the satisfaction under the name of the owner or acquirer of the commercial real estate who was subject to the satisfied lien. If the register of deeds maintains a tract index, the satisfaction shall also be indexed under the legal description of the real estate against which the lien was claimed.
779.32(8)(c)
(c) A broker is liable to a person requesting a lien satisfaction under this subsection for a sum equal to 50% of the sum claimed in the lien claim, if the broker does not provide the requested satisfaction within 30 days of the later of the following:
779.32(8)(c)1.
1. The date on which the request is received by the broker.
779.32(8)(c)2.
2. If the satisfaction is required under
par. (a) 1., the date on which the broker receives payment in full of the amount specified in the notice of lien.
779.32(8)(c)3.
3. If the satisfaction is required under
par. (a) 2., the date on which the broker receives evidence that the requirements under
par. (a) 2. have been met.
779.32(8)(c)4.
4. If the satisfaction is required under
par. (a) 3., the date on which the broker receives the agreement to binding arbitration.
779.32(8)(c)5.
5. If the satisfaction is required under
par. (a) 3., the date on which the broker receives evidence of payment of the arbitrator's fee.
779.32(9)
(9) Extinguishment of lien. A lien under this section is extinguished if an action to enforce the lien is not commenced within 2 years after the lien is perfected under
sub. (4) (a).
779.32 History
History: 1997 a. 309;
2001 a. 103.
MINING LIENS, ETC.
779.35
779.35
Mining liens. Any person who performs any labor or services for any employer engaged in or organized for the purpose of mining, smelting or manufacturing ores or minerals, and any bona fide holder of any draft, time check or order for the payment of money due for that labor, issued or drawn by the employer, shall have a lien for the wages due in the amount due on the draft, check or order. The lien shall be upon all of the personal property connected with the mining, smelting or manufacturing industry belonging to the employer, including the ores or products of the mine or manufactory, and, subject to
s. 779.36 (2), all of the employer's interest in any real estate connected with the mining, smelting or manufacturing business. The lien under this section shall take precedence of all other debts, judgments, decrees, liens or mortgages against the employer, except liens accruing for taxes, fines or penalties and liens under
ss. 292.31 (8) (i) and
292.81, subject to the exceptions and limitations contained in this subchapter.
779.35 History
History: 1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.35;
1993 a. 453;
1995 a. 227;
1997 a. 27,
254.
779.36
779.36
Extent of lien; filing claim. 779.36(1)
(1) Subject to
sub. (2), the lien under
s. 779.35 extends only to the amount of the interest in the real property held by the employer. In case of the employer's death or insolvency, or of the sale or transfer of the employer's interest in the works, mines, manufactories or business, all moneys that may be due for wages to any miner, mechanic or laborer shall be a lien upon all of the property and shall be preferred and first paid out of the proceeds of the sale.
