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CHAPTER 60 PROCEDURE, CIVIL
ARTICLE 11 LIENS FOR LABOR AND MATERIAL
60-1101 Liens of Contractors; Priority
60-1102 Filing and Recording of Lien Statement
60-1103 Liens of Subcontractors; Procedure; Recording and
Notice, Owner’s Liability
60-1103a Subcontractors’ Liens; Improvement of Residential
Property
60-1103b Subcontractors’ Liens; New Residential Property
60-1104 Assignment
60-1105 Limitations and Amendment
60-1106 Parties
60-1107 Stay of Proceedings
60-1108 Action by Landowner for Adjudication, Cancellation
60-1109 Pro Rata Distribution
KANSAS STATUTES
CHAPTER 60 PROCEDURE, CIVIL
ARTICLE 11 LIENS FOR LABOR AND MATERIAL
60-1101 Liens of Contractors; Priority
Any person furnishing labor, equipment, material, or supplies
used or consumed for the improvement of real property, under
a contract with the owner or with the trustee, agent or spouse
of the owner, shall have a lien upon the property for the
labor, equipment, material or supplies furnished, and for
the cost of transporting the same. The lien shall be preferred
to all other liens or encumbrances which are subsequent to
the commencement of the furnishing of such labor, equipment,
material or supplies at the site of the property subject to
the lien. When two or more such contracts are entered into
applicable to the same improvement, the liens of all claimants
shall be similarly preferred to the date of the earliest unsatisfied
lien of any of them.
60-1102
Filing and Recording of Lien Statement
(a) Filing. Any person claiming a lien on real property, under
the provisions of K.S.A. 60-1101, and amendments thereto,
shall file with the clerk of the district court of the county
in which property is located, within four months after the
date material, equipment or supplies, used or consumed was
last furnished or last labor performed under the contract
a verified statement showing:
(1) The name of the owner,
(2) the name and address sufficient for service of process
of the claimant,
(3) a description of the real property,
(4) a reasonably itemized statement and the amount of the
claim, but if the amount of the claim is evidenced by a written
instrument, or if a promissory note has been given for the
same, a copy thereof may be attached to the claim in lieu
of the itemized statement.
(b) Recording. Immediately upon the receipt of such statement
the clerk of the court shall index the lien in the general
index by party names and file number.
60-1103
Liens of Subcontractors; Procedure, Recording and Notice,
Owner’s Liability
(a) Procedure. Any supplier, subcontractor or other person
furnishing labor, equipment, material or supplies, used or
consumed at the site of the property subject to the lien,
under an agreement with the contractor, subcontractor or owner
contractor may obtain a lien for the amount due in the same
manner and to the same extent as the original contractor except
that:
(1) The lien statement must state the name of the contractor
and be filed within three months after the date supplies,
material or equipment was last furnished or labor performed
by the claimant;
(2) if a warning statement is required to be given pursuant
to K.S.A. 60-1103a, and amendments thereto, there shall be
attached to the lien statement the affidavit of the supplier
or subcontractor that such warning statement was properly
given; and
(3) a notice of intent to perform, if required pursuant to
K.S.A. 60-1103b, and amendments thereto, must have been filed
as provided by that section.
(b) Owner contractor is defined as any person, firm or corporation
who:
(1) Is the fee title owner of the real estate subject to the
lien; and
(2) enters into contracts with more than one person, firm
or corporation for labor, equipment, material or supplies
used or consumed for the improvement of such real property.
(c) Recording and notice. When a lien is filed pursuant to
this section, the clerk of the district court shall enter
the filing in the general index. The claimant shall (1) cause
a copy of the lien statement to be served personally upon
any one owner and any party obligated to pay the lien in the
manner provided by K.S.A. 60-304, and amendments thereto,
for the service of summons within the state, or by K.S.A.
60-308, and amendments thereto, for service outside of the
state, (2) mail a copy of the lien statement to any one owner
of the property and to any party obligated to pay the same
by restricted mail or (3) if the address of any one owner
or such party is unknown and cannot be ascertained with reasonable
diligence, post a copy of the lien statement in a conspicuous
place on the premises. The provisions of this subsection requiring
that the claimant serve a copy of the lien statement shall
be deemed to have been complied with, if it is proven that
the person to be served actually received a copy of the lien
statement.
(d) Rights and liability of owner. The owner of the real property
shall not become liable for a greater amount than the owner
has contracted to pay the original contractor, except for
any payments to the contractor made:
(1) Prior to the expiration of the three-month period for
filing lien claims, if no warning statement is required by
K.S.A. 60-1103a, and amendments thereto; or
(2) subsequent to the date the owner received the warning
statement, if a warning statement is required by K.S.A. 60-1103a,
and amendments thereto.
The owner may discharge any lien filed under this section
which the contractor fails to discharge and credit such payment
against the amount due the contractor.
60-1103a
Subcontractors’ Liens; Improvement of Residential Property
(a) As used in this section, “improvement of residential
property” means:
(1) Improvement of a preexisting structure in which the owner
resides at the time the claimant first furnishes labor, equipment,
material or supplies and which is not used or intended for
use as a residence for more than two families or for commercial
purposes or improvement or construction of any addition, garage,
fence, swimming pool, outbuilding or other improvement appurtenant
to such a structure; or
(2) any construction upon real property which is (A) owned
or acquired by an individual at the time the claimant first
furnishes labor, equipment, material or supplies; (B) intended
to become and does become the principal personal residence
of that individual upon completion; and (C) not used or intended
for use as a residence for more than two families or for commercial
purposes.
(b) A lien for the furnishing of labor, equipment, materials
or supplies for the improvement of residential property may
be claimed pursuant to K.S.A. 60-1103 and amendments thereto
only if the claimant has:
(1) Mailed to any one of the owners of the property a warning
statement conforming with this section; or
(2) in the claimant’s possession a copy of a statement
signed and dated by any one owner of the property stating
that the general contractor or the claimant had given the
warning statement conforming with this section to one such
owner of the property.
(c) The warning statement provided for by this section, to
be effective, shall contain substantially the following statement:
“Notice to owner: (name of supplier or subcontractor)
is a supplier or subcontractor providing materials or labor
on Job No. ______ at (residence address) under an agreement
with (name of contractor). Kansas law will allow this supplier
or subcontractor to file a lien against your property for
materials or labor not paid for by your contractor unless
you have a waiver of lien signed by this supplier or subcontractor.
If you receive a notice of filing of a lien statement by this
supplier or subcontractor, you may withhold from your contractor
the amount claimed until the dispute is settled.”
(d) The warning statement provided for by this section shall
not be required if the claimant’s total claim does not
exceed $250.
60-1103b Subcontractors’ Liens; New Residential
Property
(a) As used in this section, “new residential property”
means a new structure which is constructed for use as a residence
and which is not used or intended for use as a residence for
more than two families or for commercial purposes. “New
residential property” does not include any improvement
of a preexisting structure or construction of any addition,
garage or outbuilding appurtenant to a preexisting structure.
(b) A lien for the furnishing of labor, equipment, materials
or supplies for the construction of new residential property
may be claimed pursuant to K.S.A. 60-1103 and amendments thereto
after the passage of title to such new residential property
to a good faith purchaser for value only if the claimant has
filed a notice of intent to perform prior to the recording
of the deed effecting passage of title to such new residential
property. Such notice shall be filed in the office of the
clerk of the district court of the county where the property
is located.
(c) The notice of intent to perform and release thereof provided
for in this section, to be effective, shall contain substantially
the following statement, whichever is applicable:
NOTICE OF INTENT TO PERFORM “I (name of supplier, subcontractor
or contractor) of (address of supplier, subcontractor or contractor)
do hereby give public notice that I am a supplier, subcontractor
or contractor or other person providing materials or labor
on property owned by ________________________ and having the
legal description as follows:”
RELEASE OF NOTICE OF INTENT TO PERFORM NO. ______ AND WAIVER
OF LIEN
“I __________________________ (name of supplier, subcontractor
or contractor) of ________________________ (address of supplier,
subcontractor or contractor) do hereby acknowledge that I
filed notice of intent to perform no. ______ covering property
owned by ______________________________________ (name of property
owner) and having the legal description as follows:
______________________________________
_________________________________________________________________
In consideration of the sum of $______________, the receipt
of which is hereby acknowledged, I hereby direct the clerk
of the district court of ______________, Kansas to release
the subject notice of intent to perform and do hereby waive
and relinquish any statutory right to a lien for the furnishing
of labor, equipment, materials or supplies to the above-described
real estate under the statutes of the state of Kansas.”
(d) When any claimant who has filed a notice of intent to
perform has been paid in full, such claimant shall be required
to file in the office in which the notice of intent to perform
was filed, and to pay any requisite filing fee, a release
of such notice and waiver of lien which shall be executed
by the claimant, shall identify the property as set forth
in the notice of intent to perform, and state that it is the
intention of the claimant to waive or relinquish any statutory
right to a lien for the furnishing of labor or material to
the property. Upon such filing, the notice of intent to perform
previously filed by such claimant shall be of no further force
or effect, and such claimant’s right to a lien under
K.S.A. 60-1101 and 60-1103, and amendments thereto, shall
be extinguished.
(e) Any owner of the real estate upon which a notice of intent
to perform has been filed, or any owner’s heirs or assigns,
or anyone acting for such owner, heirs or assigns, and after
payment in full to the claimant, may make demand upon the
claimant filing the notice of intent to perform, for the filing
of a release of the notice and waiver of lien as provided
for in subsection (d), unless the same has expired by virtue
of the provisions set forth in subsection (f).
(f) Notwithstanding the requirements of subsections (d) and
(e), a notice of intent to perform shall be of no further
force or effect after the expiration of 18 months from the
date of filing the same, unless within such time the claimant
has filed a lien pursuant to K.S.A. 60-1101 and 60-1103, and
amendments thereto.
60-1104 Assignment
All claims for liens and rights of action to recover therefore
under this act shall be assignable so as to vest in the assignee
all rights and remedies herein given, subject to all defenses
thereto that might be made if such assignment had not been
made. Where a statement has been filed and recorded as herein
provided, such assignment may be made by filing with the clerk
of the court a separate instrument in writing to be attached
to the original lien.
60-1105 Limitations and Amendment
(a) Limitations. An action to foreclose a lien under this
article shall be brought within one year from the time of
filing the lien statement, but if a promissory note has been
attached to the lien statement in lieu of an itemized statement,
the action shall be commenced within one year from the maturity
of said note.
(b) Amendment. Where action is brought to enforce a lien the
lien statement may be amended by leave of the judge in furtherance
of justice, except to increase the amount claimed.
60-1106 Parties
In such actions all persons whose liens are filed as herein
provided, and other encumbrancers of record, shall be made
parties, and issues shall be made and trials had as in other
cases. Where such an action is brought by a subcontractor,
or person other than the original contractor, such original
contractor shall be made a party defendant, and shall at his
or her own expense defend against the claim of every subcontractor,
or other person claiming a lien under this article, and if
he or she fails to make such defense the owner may make the
same at the expense of such contractor; and until all such
claims, costs and expenses are finally adjudicated, and defeated
or satisfied, the owner shall be entitled to retain from the
contractor the amount thereof, and such costs and expenses
as he or she may be required to pay. If the sheriff of the
county in which such action is pending shall make return that
he or she is unable to find such original contractor, the
court may proceed to adjudicate the liens upon the land and
render judgment to enforce the same with costs.
60-1107 Stay of Proceedings
In any action to foreclose a lien under this article if the
building or other improvement is still in course of construction,
the judge on application of any party engaged in furnishing
labor or materials for such building or improvement, may stay
the trial thereof for a reasonable time to permit the filing
of a lien statement by such party under the provisions of
this act.
60-1108
Action by Landowner for Adjudication, Cancellation
If any lien or liens are filed under the provisions of this
article and no action to foreclose any of such liens is commenced,
the owner of the land may file such owner’s petition
in the district court of the county in which such land is
situated, making such lien claimants defendants therein, and
praying for an adjudication of such lien or liens so claimed.
If any such lien claimant shall fail to establish such claimant’s
lien, the court may tax against such claimant the whole or
such portion of the costs of such action as may be just. If
no action to foreclose or adjudicate any lien filed under
the provisions of this article shall be instituted within
the time provided in subsection (a) of K.S.A. 60-1105, and
amendments thereto, the lien shall be considered canceled
by limitation of law.
60-1109 Pro Rata Distribution
If the proceeds of the sale be insufficient to pay all the
claimants, then the court shall order them to be paid in proportion
to the amount due each. |
