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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.
subch. II of ch. 779 SUBCHAPTER II
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)(1) Definitions. In this section:
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)1. 1. Real property containing 8 or fewer dwelling units.
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(1)(c) (c) "Financial institution" has the meaning given in s. 214.01 (1) (jn).
779.32(1)(d) (d) "Tenant representation agreement" means an agency agreement between a broker and a person that grants the broker the right to represent the person in the lease of commercial real estate.
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 or tenant representation 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 from the owner or landlord under a written agreement for the lease or management of commercial real estate or under a tenant representation agreement, 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(2m) (2m)Notice of lien rights.
779.32(2m)(a)(a) To claim a lien under sub. (2), the broker shall notify the person who owes the commission or compensation described in sub. (2) (a), (b), or (c) in writing of the right to claim a lien under this section. A broker shall include the notice required under this subsection in the commercial real estate listing contract, commercial real estate buyer agreement, tenant representation agreement, or written agreement for the lease or management of commercial real estate.
779.32(2m)(b) (b) The notice required under this subsection shall be in substantially the following form:
NOTICE: A broker has the authority under section 779.32 of the Wisconsin Statutes to file a broker lien for commissions or compensation earned but not paid when due against the commercial real estate, or the interest in the commercial real estate, that is the subject of this agreement.
779.32(3) (3)Notice of interest. In addition to the requirements of sub. (2m), to claim a lien under sub. (2) (a) or (b), the broker shall record a written notice of interest under this section at the office of the register of deeds for the county in which the commercial real estate is located. A notice required under this subsection shall contain the name of each party to the agreement under which the interest is claimed, the date that the agreement was entered into and a description of the commercial real estate that is subject to the lien rights. A notice 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(4) (4)Perfection of lien.
779.32(4)(a)(a) A lien under this section is perfected when a broker records a 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), 30 days after 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 agreement, is located.
779.32(4)(a)2. 2. In the case of a lien under sub. (2) (c), 90 days after the later of the following:
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, tenant representation agreement, 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, tenant representation agreement, or management agreement.
779.32(4)(b) (b) The lien shall be signed by the broker and shall include all of the following information:
779.32(4)(b)1. 1. The name and license number of the broker.
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 lien is recorded.
779.32(4)(c) (c) A broker shall mail a copy of the lien to the owner or acquirer of the commercial real estate that is subject to the lien within 72 hours after the recording of the 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 recorded.
779.32(4m) (4m)Duty of register of deeds. If a lien meets the requirements under sub. (4), the register of deeds shall accept the lien for recording. The register of deeds shall index the 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 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) (8)Satisfaction of the lien.
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 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, 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, or to a mutually agreed-upon 3rd party. 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)(am) (am) The satisfaction of lien shall include the information listed in sub. (4) (b) 1. to 3.
779.32(8)(b) (b) The satisfaction of lien shall be recorded with the register of deeds.
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 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 notice of interest. A notice of interest expires and is extinguished if a new notice of interest is not recorded under sub. (3) within 2 years after the recording of the original notice of interest. A notice of interest may be rescinded by the recording of a notice with the register of deeds in the county where the real property is located, indicating that the broker is no longer claiming an interest under this section. A broker shall record a notice rescinding the notice of interest if the contract or agreement under which the interest was created expires or is terminated.
779.32(10) (10)Foreclosure of lien; procedure, parties. In the foreclosure of a lien under this section, ch. 846 shall control as far as applicable. All persons who have recorded a lien under this section 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.
779.32(11) (11)Waiver of lien. A broker may waive the lien under this section in writing signed by the broker, but no action or agreement between any other persons may invalidate the lien, other than the payment in full to the broker of the commission or compensation to which the lien relates.
779.32 History History: 1997 a. 309; 2001 a. 103; 2009 a. 348.
subch. III of ch. 779 SUBCHAPTER III
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 11, 2014. Published and certified under s. 35.18. Changes effective after April 11, 2014 are designated by NOTES. (Published 4-11-14)