Perfecting A Mechanics Lien

Mechanics Liens in Illinois are governed by the Illinois Mechanics Lien Act (770 ILCS 60/0.01, et seq.).  

The Mechanics Lien Act aims to ensure that contractors and subcontractors who provide labor, materials, fixtures, or machinery to improve real estate receive payment for their services and materials.  

‍The Mechanics Lien Act provides a mechanism whereby contractors and subcontractors can place a lien on the property where they work to improve the value of their services and materials. The Lien prevents the property owner from transferring the property without first paying the contractor or subcontractor who holds the Lien. A Mechanics Lien also allows the contractor or subcontractor who holds the Lien to foreclose on the property and have it sold to satisfy the Lien. 

Mechanics Liens On Public Projects In Illinois

Mechanics Liens are available to subcontractors on public construction projects and private projects. Mechanics Liens on public projects are governed by 770 ILCS 60/23. While a lien on private property is placed on the real estate, a lien on a public project is placed on the amounts due to the general contractor from the governmental organization in question. Mechanics Liens are not available to general contractors on public projects.

General Contractors’ Mechanics Liens Vs. Subcontractor Liens In Illinois

‍The primary difference between a Contractor’s Mechanics Lien and a Subcontractor’s Mechanic’s Lien is that additional notice (described below) is required to perfect and enforce a Subcontractor’s Lien. A “contractor” is defined as someone who has directly contracted with the property owner or an agent of the owner who the owner knowingly permitted to contract for the construction of improvements. 

‍A “subcontractor” is defined as anyone who does not contract directly with the owner but contracts with the contractor or another subcontractor. Material suppliers to contractors and subcontractors are included in this definition. 

‍Contractor Mechanics Liens and Subcontractor Mechanics Liens have the same legal effect. 

Requirement Of A Contract With The Owner for Validity of Mechanics Liens

‍In order for either a Contractor or Subcontractor Mechanics Lien to be valid, there must be a valid contract between the general contractor and the owner or an agent of the owner. An oral contract is sufficient to satisfy this requirement. Suppose the property is jointly owned and the contract is with only one owner. In that case, the Lien will be effective against all co-owners if the other owners knowingly permitted the improvements to the property. Similarly, suppose a tenant contract with the contractor. In that case, the Lien will attach to the real estate if the landlord knowingly permitted the tenant to make the improvements in question. An owner is presumed to have “knowingly permitted” improvements if he knew of the improvement and failed to protest or accept the benefits of the improvement. 

Priority Of Mechanics Liens In Illinois

‍Mechanics liens have priority over later encumbrances to the property, such as mortgages and later liens. According to the “relation-back” doctrine, the effective date of the Mechanics Lien to determine priority is the date of the contract. This means that the Mechanics Lien will prioritize encumbrances to the property that are recorded between the date of the contract and the date that the Mechanics Lien is recorded. 

Mechanics liens have priority over mortgages that were recorded before the date of the contract to the extent that the value of the property was increased based on the work in question. 

How To Perfect A Mechanics Lien In Illinois

‍The holder of a Mechanics Lien must follow a series of steps by strict deadlines in order to prevent the holder from losing their lien rights. This is called “perfecting” a Mechanics Lien. In addition to the recording and enforcement deadlines required of general contractors, subcontractors must send additional notices to perfect their Mechanics Liens. 

‍Recording a Claim for Lien

‍Both general contractors and subcontractors must file a claim for Lien with the recorder of deeds office within four months of the last day of work. The claim must include the following information:

• A statement of the work performed;
• The date that work was completed;
• The balance due to the contractor after any credits;
• A property description and PIN (Property Identification Number)
• Names of the owners of record, the party with whom the contractor contracted, and any mortgagees listed on the property record. 

If the Lien is against an owner-occupied residence, the contractor must serve a recorded copy of the Lien upon the owner within ten days of recording. 

‍If the contractor or subcontractor fails to timely record the lien claim, or if the lien claim that is filed is defective, the Lien will not be effective against lenders, future owners, and other third parties but may still be effective against the original owner. 

Filing Suit  

In order to preserve their lien rights, the contractor or subcontractor must file suit to foreclose the Lien within two years of the last day of work. 

Additional Notice Required To Perfect A Subcontractor’s Lien

In addition to the four-month recording requirement and the two-year deadline to file suit, which applies to both general contractors and subcontractors, subcontractors must provide specific additional notices to preserve their lien rights. 

‍Subcontractor’s 90-Day notice

‍Section 24 of the Mechanics Lien Act requires that within 90 days of the last date that the subcontractor worked on the project, the subcontractor must deliver notice of its claim to the owner by certified mail with return receipt requested or by personal service. The information required to be included in the notice is substantially similar to the information included in the recorded lien claim. 

‍The 90-Day notice may not be required if the general contractor has provided a sworn statement that includes the subcontractor. However, it is good practice to serve the 90-Day notice even if you believe that a sworn statement exists. 

‍Subcontractor’s 60-Day Notice for Owner-Occupied Residences

In addition to the subcontractor’s 90-Day notice, subcontractors working on single-family owner-occupied residences must deliver notice to the owner within 60 days of the first day of work containing:

• The name and address of the subcontractor;
• The date of the first day of work;
• The type of work or materials provided;
• The name of the contractor with whom the subcontractor contracted for the work; and
• The following language:

‍NOTICE TO OWNER: The subcontractor providing this notice has performed work for or delivered material to your home improvement contractor. These services or materials are being used to improve your residence. They entitle the subcontractor to file a lien against your residence if the labor, services, material, fixtures, apparatus or machinery, forms, or formwork are not paid for by your home improvement contractor. A lien waiver will be provided to your contractor when the subcontractor is paid. You are urged to request this waiver from your contractor when paying for your home improvements.

‍The notice must be delivered to the owner by certified mail, return receipt requested, and a copy sent to the general contractor. 

How To Enforce An Illinois Mechanics Lien Claim

‍In order to foreclose on a Mechanics Lien, a contractor or subcontractor may file suit in the county that contains the real estate within two years of the last day of work. The suit must include the owner and any other entities interested in or encumbrance on the property, such as mortgages and other Mechanics Lien claimants. If a subcontractor is enforcing, the general contractor and anyone else in the contract chain between the general and the subcontractor must be named as a party. 

‍The lawsuit requests that the court order the property to be sold to satisfy your Mechanics Lien and other encumbrances on the property. 

‍A successful Mechanics Lien claimant is entitled to the amount due under the contract plus interest at 10% per annum and attorney fees required to enforce the Lien. 

Owners Can Accelerate The Mechanics Lien Enforcement Process

Section 34 of the Mechanics Lien Act permits owners to serve notice on a lien claimant requiring the lien claimant to file suit to foreclose the Lien within 30 days of the notice. If the lien claimant fails to do so, they will forfeit any lien rights. ​

To get in touch with one of our contract attorneys about a mechanic’s lien, or any other related issue you may be having, please give us a call at (630)-324-6666 or fill out our confidential contact form and we will get back to you shortly.

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