779.05(2)
(2) A promissory note or other evidence of debt given for any lienable claim shall not be deemed a waiver of lien rights unless the note or other instrument is received as payment and expressly declares that receipt thereof is a waiver of lien rights.
779.05 History
History: 1979 c. 32 s.
57; Stats. 1979 s. 779.05;
2005 a. 204.
779.05 Annotation
Public improvement liens under this section are subject to the waiver provision of s. 289.05 (1) [now s. 779.05 (1)]. Since waiver of a public improvement lien disposes of the lien itself, the refiling of a claim for lien after a waiver was a nullity and the fact that the claim was not disputed following refiling did not revive the lien. Druml Co., Inc. v. New Berlin,
78 Wis. 2d 305,
254 N.W.2d 265 (1977).
779.05 Annotation
Section 779.135 (1) voids a contract provision that requires a subcontractor to waive its right to a construction lien before it can get paid. Section 779.05 (1) specifically allows a subcontractor who has signed a contract containing a lien waiver provision to refuse to furnish the waiver unless paid in full for the work or material to which the waiver relates. Thus a subcontractor facing a void construction lien waiver contract provision has a choice: it can either tender a lien waiver prior to being paid or refuse to do so until it is paid. Tri-State Mechanical, Inc. v. Northland College,
2004 WI App 100,
273 Wis. 2d 471,
681 N.W.2d 302,
03-2182.
779.06
779.06
Filing claim and beginning action; notice required before filing; contents of claim document. 779.06(1)(1) No lien under
s. 779.01 shall exist and no action to enforce a lien under
s. 779.01 shall be maintained unless within 6 months from the date the lien claimant performed, furnished, or procured the last labor, services, materials, plans, or specifications, a claim for the lien is filed in the office of the clerk of circuit court of the county in which the lands affected by the lien lie, and unless within 2 years from the date of filing a claim for lien an action is brought and summons and complaint filed. A lien claimant shall serve a copy of the claim for lien on the owner of the property on which the lien is placed within 30 days after filing the claim. A claim for a lien may be filed and entered in the judgment and lien docket, and action brought, notwithstanding the death of the owner of the property affected by the action or of the person with whom the original contract was made, with like effect as if he or she were then living.
779.06(2)
(2) No lien claim may be filed or action brought thereon unless, at least 30 days before timely filing of the lien claim, the lien claimant serves on the owner a written notice of intent to file a lien claim. The notice is required to be given whether or not the claimant has been required to and has given a previous notice pursuant to
s. 779.02. Such notice shall briefly describe the nature of the claim, its amount and the land and improvement to which it relates.
779.06(3)
(3) Such a claim for lien shall have attached thereto a copy of any notice given in compliance with
s. 779.02 and a copy of the notice given in compliance with
sub. (2), and shall contain a statement of the contract or demand upon which it is founded, the name of the person against whom the demand is claimed, the name of the claimant and any assignee, the last date of performing, furnishing, or procuring any labor, services, materials, plans, or specifications, a legal description of the property against which the lien is claimed, a statement of the amount claimed and all other material facts in relation thereto. Such claim document shall be signed by the claimant or attorney, need not be verified, and in case of action brought, may be amended, as pleadings are.
779.06 History
History: 1979 c. 32 ss.
57,
92 (9);
1979 c. 176; Stats. 1979 s. 779.06;
1995 a. 224;
2005 a. 204.
779.06 Annotation
The limitation period under sub. (1) commenced on the date the claimant furnished the last materials for the project, although the claimant supplied 2 succeeding subcontractors and the 2nd subcontractor paid in full. Fredrick Redi-Mix, Inc. v. Thomson,
96 Wis. 2d 715,
292 N.W.2d 528 (1980).
779.06 Annotation
When a contractor gave a lien notice to the initial owner when work commenced and had no notice of a subsequent transfer of title, the contractor's lien rights prevailed against subsequent owners who received no lien notice. Wes Podany Const. Co., Inc. v. Nowicki,
120 Wis. 2d 319,
354 N.W.2d 755 (Ct. App. 1984).
779.06 Annotation
Sub. (3) does not restrict when amendments to lien claims can be made. It only provides that if an amendment is made after an action is brought, the lien claim may be amended in the same manner as pleadings. Torke/Wirth/Pujara v. Lakeshore Towers,
192 Wis. 2d 481,
531 N.W.2d 419 (Ct. App. 1995).
779.06 Annotation
A subcontractor's liens are not protected by incorporation into the prime contractor's lien if the subcontractor makes an independent claim. If the subcontractor brings a lien claim independent from the prime contractor, it is required to follow the procedures required for all claimants under the statutes. Torke/Wirth/Pujara v. Lakeshore Towers,
192 Wis. 2d 481,
531 N.W.2d 419 (Ct. App. 1995).
779.07
779.07
Judgment and lien docket. 779.07(1)
(1) Every clerk of circuit court shall keep a judgment and lien docket in which shall be entered, immediately upon filing, the proper entries under the appropriate headings specified in this subsection, relative to each claim for lien filed, opposite the names of the persons against whom the lien is claimed. The names shall be entered alphabetically. Each page in the judgment and lien docket shall be divided into 9 columns, with headings in the following sequence to the respective columns, as follows:
779.07(1)(a)
(a) Name of person against whom lien is claimed.
779.07(1)(d)
(d) Last date of performing, furnishing, or procuring labor, services, materials, plans, or specifications.
779.07(1)(e)
(e) Description of copies of notices attached to claim when filed.
779.07(2)
(2) The judgment and lien docket shall be presumptive evidence of the correctness of its entries.
779.07 History
History: 1979 c. 32 s.
57; Stats. 1979 s. 779.07;
1993 a. 486;
1995 a. 224;
2005 a. 204.
779.08
779.08
Release of lien; undertaking. 779.08(1)
(1) The person against whom a lien is claimed or any other interested party may file with the clerk of court in whose office the claim for lien is filed an undertaking executed by a surety to the effect that the person against whom the lien is claimed shall pay the amount of the claim and all costs and damages which may be awarded against that person on account of the lien or in lieu thereof deposit with the clerk of the court a sum of money, certified check or negotiable government bonds in par value equal to 125% of the claim for lien. The court in which any action to foreclose the lien may be brought shall determine any question of sufficiency of the surety if exception is taken thereto by the lien claimant within 10 days after notice of the filing of such undertaking or deposit of other security and may upon notice and upon motion of any party, order any sum of money deposited to be invested. The clerk of court shall remove the lien from the judgment and lien docket upon the court's order approving the surety in substitution for the lien. The depositor shall be entitled to any income from the investments, certified check or negotiable U.S. government bonds deposited and the clerk shall pay the income to the depositor without order when received or, in the case of coupons, as the income becomes due.
779.08(2)
(2) If an undertaking is furnished, it shall be accompanied by the affidavit of the surety which states that the surety is worth, over and above all debts and liabilities in property within this state not exempt from execution, an amount in the aggregate equal to 125% or more of the amount of the claim for lien.
779.08(3)
(3) The person against whom the lien is claimed or other interested party depositing the security shall cause to be served upon the lien claimant a notice of the filing of the undertaking or deposit of other security and, if an undertaking, a copy thereof, which notice shall state where and when the undertaking was filed or the security was deposited.
779.08(4)
(4) Any action brought after the furnishing of security or pending at the time of the furnishing thereof in accordance with this section shall proceed as if no security had been furnished, except that after the time within which exceptions may be taken to the security, or pursuant to order of the court upon any exception so taken, the clerk shall satisfy the claim for lien of record and discharge any lis pendens filed, and except that the lien thereupon shall attach to the security and the amount adjudged due in the proceeding for foreclosure thereof shall be satisfied out of the security, and the property described in the lien claim shall thenceforth be entirely free of the lien and shall in no way be involved in subsequent proceedings.
779.08(5)
(5) If no action to foreclose the lien is brought within the time specified by
s. 779.06 (1), the clerk of circuit court in whose office the undertaking or other security was filed or deposited shall on request, and without notice, return the undertaking or security to the party filing or depositing it.
779.08 History
History: 1979 c. 32 ss.
57,
92 (9);
1979 c. 176; Stats. 1979 s. 779.08;
2005 a. 204.
779.08 Annotation
By its plain language, the patent purpose of the release bond is to allow a property owner whose property is the subject of a construction lien or a general contractor, acting on the owner's behalf, to substitute a bond for the property. Because the effect of the release bond procedure is to free the real property from the effect of the claim and lien and any action brought to foreclose such a lien and because a lien foreclosure action is an in rem proceeding, unless personal judgment can otherwise be rendered against the property owner, the owner of the liened property is entitled to a judgment of dismissal from a lien foreclosure action. Hunzinger Construction v. SCS of Wisconsin,
2005 WI App 47,
280 Wis. 2d 230,
694 N.W.2d 487,
04-0657.
779.09
779.09
Foreclosure of lien; procedure; parties. In the foreclosure of liens mentioned in
s. 779.01,
ch. 846 shall control as far as applicable unless otherwise provided in this subchapter. All persons having filed claims for liens under
s. 779.01 may join as plaintiffs, and if any do not join they may be made defendants. All persons having liens subsequent to such lien may be joined as defendants. If any person who is a proper party is not a party to the action the person may, at any time before judgment, be made a defendant, and any person who after the commencement of the action obtains a lien or becomes a purchaser may, at any time before judgment, be made a defendant.
779.09 History
History: 1973 c. 189 s.
20; Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975);
1975 c. 218;
1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.09.
779.09 Annotation
Section 840.10 (1) (a) imposes the requirement of recording a lis pendens on the plaintiff who files a complaint and on a defendant seeking relief on a counterclaim or a cross-complaint, which contains a legal description of the real estate. A defendant construction lien claimant is not a plaintiff, and no cross-claim is necessary in order for a defendant construction lien claimant to obtain a determination of the amount due it and an order for sale in a lien foreclosure action. There is no logical rationale for imposing the requirements of s. 840.10 (1) (a) on a defendant construction lien claimant because it unnecessarily files a cross-claim seeking relief it is entitled to under ss. 779.09 to 779.11. Carolina Builders Corporation v. Dietzman,
2007 WI App 201,
304 Wis. 2d 773,
739 N.W.2d 53,
06-3180.
779.10
779.10
Judgment. The judgment shall adjudge the amount due to each claimant who is a party to the action. It shall direct that the interest of the owner in the premises at the commencement of the performing, furnishing, or procuring the labor, services, materials, plans, or specifications for which liens are given and which the owner has since acquired, or so much thereof as is necessary, be sold to satisfy the judgment, and that the proceeds be brought into court with the report of sale to abide the order of the court. If the premises can be sold in parcels without injury to the parties, the court may adjudge that the sale be so made. If the plaintiff fails to establish a lien upon the premises but does establish a right to recover for labor, services, materials, plans, or specifications, the plaintiff may have a judgment against the party liable.
779.10 History
History: 1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.10;
2005 a. 204.
779.11
779.11
Distribution of proceeds of sale. The several claimants whose liens were established in the action shall be paid without priority among themselves. If the sum realized at the sale under
s. 779.10 is insufficient after paying the costs of the action and the costs of making the sale to pay the liens in full they shall be paid proportionally.
779.11 History
History: 1979 c. 32 ss.
57,
92 (9);
1979 c. 110 s.
60 (12); Stats. 1979 s. 779.11.
779.12
779.12
Sale; notice and report; deficiency judgment; writ of assistance. 779.12(1)(1) All sales under judgments in accordance with
s. 779.10 shall be noticed, conducted and reported in the manner provided for the sale of real estate upon execution and shall be absolute and without redemption. In case such sale is confirmed, the deed given thereon shall be effectual to pass to the purchaser all that interest in the premises which is directed to be sold.
779.12(2)
(2) If any deficiency arises upon the sale in the payment of the sums adjudged to be due to any lien claimant, the court, upon confirming the sale, may render judgment for the deficiency if demanded in the pleadings against the defendant legally liable to pay the deficiency. The judgment may be entered in the judgment and lien docket and enforced in the same manner that ordinary judgments are. The purchasers at the sale shall be entitled to a writ of assistance under
s. 815.63 to obtain possession of the premises sold.
779.12 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975);
1979 c. 32 ss.
57,
92 (9); Stats. 1979 s. 779.12;
1995 a. 224.
779.13
779.13
Satisfaction of judgment or lien; correction of errors. 779.13(1)(1) Every lien claimant, or the attorney who executed and filed a claim for lien on the claimant's behalf, who has received satisfaction or tender of the claim with the costs of any action brought on the claim shall, at the request of any person interested in the premises affected and on payment of the costs of satisfying the same, execute and deliver the necessary satisfaction to the interested person. On filing the satisfaction with the clerk of circuit court, the clerk of circuit court shall enter satisfaction of the claim on the judgment and lien docket. Failure to execute and deliver the satisfaction or to satisfy the lien on the judgment and lien docket shall render the person so refusing liable to pay to the person requiring the satisfaction a sum equal to one-half of the sum claimed in the claim for lien.
779.13(2)
(2) Every lien claimant, or the attorney who executed and filed a claim for lien on the claimant's behalf, who has received from any person interested in the premises described in the claim a written statement that the premises described in the claim are not in fact the premises on which the claimant performed, furnished, or procured the labor, services, materials, plans, or specifications to which the claim relates together with a written demand that the claim be satisfied of record shall, if in fact the statement of such person about the mistaken description is true, promptly satisfy the lien claim of record at the lien claimant's expense. Failure to satisfy the lien claim of record within a reasonable time, if in fact the statement asserting the mistaken description is true, shall render the person so failing liable to pay to the person demanding the satisfaction a sum equal to one-half of the sum claimed in the claim for lien.
779.13 History
History: 1979 c. 32 s.
57;
1979 c. 176; Stats. 1979 s. 779.13;
1995 a. 224;
2005 a. 204.
779.135
779.135
Construction contracts, form of contract. The following provisions in contracts for the improvement of land in this state are void:
779.135(1)
(1) Provisions requiring any person entitled to a construction lien to waive his or her right to a construction lien or to a claim against a payment bond before he or she has been paid for the labor, services, materials, plans, or specifications that he or she performed, furnished, or procured.
779.135(2)
(2) Provisions making the contract subject to the laws of another state or requiring that any litigation, arbitration or other dispute resolution process on the contract occur in another state.
779.135(3)
(3) Provisions making a payment to a prime contractor from any person who does not have a contractual agreement with the subcontractor, supplier, or service provider a condition precedent to a prime contractor's payment to a subcontractor, supplier, or service provider. This subsection does not prohibit contract provisions that may delay a payment to a subcontractor until the prime contractor receives payment from any person who does not have a contractual agreement with the subcontractor, supplier, or service provider.
779.135 History
History: 1993 a. 213 ss.
164,
165; Stats. 1993 s. 779.135;
2005 a. 204.
779.135 Annotation
Section 779.135 (1) voids a contract provision that requires a subcontractor to waive its right to a construction lien before it can get paid. Section 779.05 (1) specifically allows a subcontractor who has signed a contract containing a lien waiver provision to refuse to furnish the waiver unless paid in full for the work or material to which the waiver relates. Thus a subcontractor facing a void construction lien waiver contract provision with a choice: it can either tender a lien waiver prior to being paid or refuse to do so until it is paid. Tri-State Mechanical, Inc. v. Northland College,
2004 WI App 100,
273 Wis. 2d 471,
681 N.W.2d 302,
03-2182.
779.135 Annotation
A contractual forum selection clause requiring litigation in another state contravened sub. (2) and was void. McCloud Construction, Inc. v. Home Depot USA, Inc.
149 F. Supp. 2d 695 (2001).
779.14
779.14
Public works, form of contract, bond, remedy. 779.14(1)(1)
Definition. In this section, "subcontractor, supplier, or service provider" means the following:
779.14(1)(a)
(a) Any person who has a direct contractual relationship, expressed or implied, with the prime contractor or with any subcontractor of the prime contractor to perform, furnish, or procure labor, services, materials, plans, or specifications, except as provided in
par. (b).
779.14(1)(b)
(b) With respect to contracts entered into under
s. 84.06 (2) for highway improvements, any person who has a direct contractual relationship, expressed or implied, with the prime contractor to perform, furnish, or procure labor, services, materials, plans, or specifications.
779.14(1e)
(1e) Contract requirements regarding duties of prime contractor. 779.14(1e)(a)(a) All contracts involving $10,000 or more for performing, furnishing, or procuring labor, services, materials, plans, or specifications, when the same pertains to any public improvement or public work shall contain a provision for the payment by the prime contractor of all claims for labor, services, materials, plans, or specifications performed, furnished, procured, used, or consumed that pertain to the public improvement or public work.
779.14(1e)(b)
(b) All contracts that are in excess of $30,000, as indexed under
sub. (1s), and that are for performing, furnishing, or procuring labor, services, materials, plans, or specifications for a public improvement or public work shall contain a provision under which the prime contractor agrees, to the extent practicable, to maintain a list of all subcontractors, suppliers, and service providers performing, furnishing, or procuring labor, services, materials, plans, or specifications under the contract.
779.14(1m)
(1m) Payment and performance assurance requirements. 779.14(1m)(c)(c)
State contracts. The following requirements apply to contracts with the state for performing, furnishing, or procuring labor, services, materials, plans, or specifications for a public improvement or public work:
779.14(1m)(c)1.
1. In the case of a contract with a contract price exceeding $10,000, as indexed under
sub. (1s), but not exceeding $100,000, as indexed under
sub. (1s):
779.14(1m)(c)1.a.
a. The contract shall include a provision which allows the state to make direct payment to subcontractors or to pay the prime contractor with checks that are made payable to the prime contractor and to one or more subcontractors. This
subd. 1. a. does not apply to any contract entered into by the state under authority granted under
chs. 84,
85 and
86. This
subd. 1. a. also does not apply to any contract with a town, city, village, county or school district for the construction, improvement, extension, repair, replacement or removal of a transportation facility, as defined under
s. 84.185 (1) (d); bikeway, as defined under
s. 84.60 (1) (a); bridge; parking lot or airport facility.
779.14(1m)(c)1.b.
b. The contract shall comply with written standards established by the department of administration. Written standards established under this
subd. 1. b. shall include criteria for determining whether the contract requires payment or performance assurances and, if so, what payment or performance assurances are required.
779.14(1m)(c)2.
2. In the case of a contract with a contract price exceeding $100,000, as indexed under
sub. (1s), but not exceeding $250,000, as indexed under
sub. (1s):
779.14(1m)(c)2.a.
a. The contract shall include a provision which allows the state to make direct payment to subcontractors or to pay the prime contractor with checks that are made payable to the prime contractor and to one or more subcontractors. This
subd. 2. a. does not apply to any contract entered into by the state under authority granted under
chs. 84,
85 and
86. This
subd. 2. a. also does not apply to any contract with a town, city, village, county or school district for the construction, improvement, extension, repair, replacement or removal of a transportation facility, as defined under
s. 84.185 (1) (d); bikeway, as defined under
s. 84.60 (1) (a); bridge; parking lot or airport facility.
779.14(1m)(c)2.b.
b. The contract shall require the prime contractor to provide a payment and performance bond meeting the requirements of
par. (e), unless the department of administration allows the prime contractor to substitute a different payment assurance for the payment and performance bond. The department of administration may allow a prime contractor to substitute a different payment and performance assurance for the payment and performance bond only after the contract has been awarded and only if the substituted payment and performance assurance is for an amount at least equal to the contract price and is in the form of a bond, an irrevocable letter of credit or an escrow account acceptable to the department of administration. The department of administration shall establish written standards under this
subd. 2. b. governing when a different payment and performance assurance may be substituted for a payment and performance bond under
par. (e).
779.14(1m)(c)3.
3. In the case of a contract with a contract price exceeding $250,000, as indexed under
sub. (1s), the contract shall require the prime contractor to obtain a payment and performance bond meeting the requirements under
par. (e).
779.14(1m)(d)
(d)
Local government contracts. The following requirements apply to contracts, other than contracts with the state, for performing, furnishing, or procuring labor, services, materials, plans, or specifications for a public improvement or public work:
779.14(1m)(d)1.
1. In the case of a contract with a contract price exceeding $10,000, as indexed under
sub. (1s), but not exceeding $50,000, as indexed under
sub. (1s):
779.14(1m)(d)1.a.
a. The contract shall include a provision which allows the governmental body that is authorized to enter into the contract to make direct payment to subcontractors or to pay the prime contractor with checks that are made payable to the prime contractor and to one or more subcontractors. This
subd. 1. a. does not apply to any contract with a town, city, village, county or school district for the construction, improvement, extension, repair, replacement or removal of a transportation facility, as defined under
s. 84.185 (1) (d); bikeway, as defined under
s. 84.60 (1) (a); bridge; parking lot or airport facility.
779.14(1m)(d)1.b.
b. The contract shall comply with written standards established by the public body authorized to enter into the contract. Written standards established under this
subd. 1. b. shall include criteria for determining whether the contract requires payment or performance assurances and, if so, what payment or performance assurances are required.
779.14(1m)(d)2.
2. In the case of a contract with a contract price exceeding $50,000, as indexed under
sub. (1s), but not exceeding $100,000, as indexed under
sub. (1s):
779.14(1m)(d)2.a.
a. The contract shall include a provision which allows the governmental body that is authorized to enter into the contract to make direct payment to subcontractors or to pay the prime contractor with checks that are made payable to the prime contractor and to one or more subcontractors. This
subd. 2. a. does not apply to any contract with a town, city, village, county or school district for the construction, improvement, extension, repair, replacement or removal of a transportation facility, as defined under
s. 84.185 (1) (d); bikeway, as defined under
s. 84.60 (1) (a); bridge; parking lot or airport facility.
779.14(1m)(d)2.b.
b. Except as provided in
sub. (4), the contract shall require the prime contractor to provide a payment and performance bond meeting the requirements of
par. (e), unless the public body authorized to enter into the contract allows the prime contractor to substitute a different payment assurance for the payment and performance bond. The public body may allow a prime contractor to substitute a different payment and performance assurance for the payment and performance bond only if the substituted payment and performance assurance is for an amount at least equal to the contract price and is in the form of a bond, an irrevocable letter of credit or an escrow account acceptable to the public body. The public body shall establish written standards under this
subd. 2. b. governing when a different payment and performance assurance may be substituted for a payment and performance bond under
par. (e).
779.14(1m)(d)3.
3. Except as provided in
sub. (4), in the case of a contract with a contract price exceeding $100,000, as indexed under
sub. (1s), the contract shall require the prime contractor to obtain a payment and performance bond meeting the requirements under
par. (e).
779.14(1m)(e)2.2. A bond required under
par. (c) or
(d) shall carry a penalty of not less than the contract price, and shall be conditioned for all of the following:
779.14(1m)(e)2.b.
b. The payment to every person, including every subcontractor, supplier, or service provider, of all claims that are entitled to payment for labor, services, materials, plans, or specifications performed, furnished, or procured for the purpose of making the public improvement or performing the public work as provided in the contract and
sub. (1e) (a).
779.14(1m)(e)3.
3. A bond required under
par. (c) shall be approved for the state by the state official authorized to enter the contract. A bond required under
par. (d) shall be approved for a county by its corporation counsel, for a city by its mayor, for a village by its president, for a town by its chairperson, for a school district by its president and for any other public board or body by the presiding officer thereof.
779.14(1m)(e)4.
4. No assignment, modification or change of the contract, change in the work covered thereby or extension of time for the completion of the contract may release the sureties on a bond required under
par. (c) or
(d).
779.14(1m)(e)5.
5. Neither the invitation for bids nor the person having power to approve the prime contractor's bond may require that a bond required under
par. (c) or
(d) be furnished by a specified surety company or through a specified agent or broker.
779.14(1m)(f)
(f)
Direct purchase contracts. Paragraphs (c) and
(d) do not apply to a contract for the direct purchase of materials by the state or by a local unit of government.
779.14(1s)
(1s) Indexing of contract thresholds. If a dollar amount is to be indexed under this subsection, the department of workforce development shall adjust the dollar amount biennially, the first adjustment to be made not sooner than December 1, 1998. The adjustment shall be in proportion to any change in construction costs since June 17, 1998, under this subsection, or the last adjustment whichever is later. No adjustment shall be made for a biennium, if the adjustment to be made would be less than 5%.
