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CHAPTER
779 LIENS
SUBCHAPTER I CONSTRUCTION LIENS
779.01 Construction Liens
779.02 Notice Required to Preserve Lien Rights; Exceptions;
Saving Clause; Obligations of Contractors
779.03 Lien Valid Unless Waived by Claimant Personally, or
Unless Payment Bond Furnished
779.035 Form of Contract; Payment Bond; Remedy
779.036 Contracts with Payment Bond; Lien; Notice; Duty of
Owner and Lender
779.04 Claims Assignable; Notice; Prior Payment
779.05 Waivers of Lien
779.06 Filing Claim and Beginning Action; Notice Required
Before Filing; Contents of Claim Document
779.07 Judgment and Lien Docket
779.08 Release of Lien; Undertaking
779.09 Foreclosure of Lien; Procedure; Parties
779.10 Judgment
779.11 Distribution of Proceeds of Sale
779.12 Sale; Notice and Report; Deficiency Judgment; Writ
of Assistance
779.13 Satisfaction of Judgment or Lien; Correction of Errors
779.135 Construction Contracts, Form of Contract
779.14 Public Works, Form of Contract, Bond, Remedy
779.15 Public Improvements; Lien on Contractor; Duty of Officials
779.155 Judgment Creditors, Attachment of Funds Due to Public
Contractors
779.16 Theft by Contractors
779.17 Release of Funds on Filing Bond
WISCONSIN STATUTES 1997
CHAPTER 779 LIENS
SUBCHAPTER I CONSTRUCTION LIENS
779.01 Construction Liens
(1) Name of law. This subchapter may be referred to as the
construction lien law.
(2) Definitions. In this subchapter unless the context or
subject matter requires otherwise:
(a) “Improve” or “improvement” includes
any building, structure, erection, fixture, demolition, alteration,
excavation, filling, grading, tiling, planting, clearing or
landscaping which is built, erected, made or done on or to
land for its permanent benefit. This enumeration is intended
as an extension rather than a limitation of the normal meaning
and scope of “improve” and “improvement”.
(b) “Lien claimant” means any person who claims
a lien under this section pursuant to a contract for improvement
of land entered into by an owner of the land.
(c) “Owner” means the owner of any interest in
land who, personally or through an agent, enters into a contract,
express or implied, for the improvement of the land. Agency
will be presumed, in the absence of clear and convincing evidence
to the contrary, between employer and employee, between spouses,
between joint tenants and among tenants in common, but there
shall be a similar presumption against agency in all other
cases.
(d) “Prime contractor” means:
1. A person, other than a laborer, but including an architect,
professional engineer, or surveyor employed by the owner,
who enters into a contract with an owner of land who is not
personally the prime contractor as defined in subd. 2 to improve
the land, or who takes over from a prime contractor the uncompleted
contract; or
2. An owner of land who acts personally as general contractor
in improving such land.
(3) Extent and character of lien. Every person who performs
any work or procures its performance or furnishes any labor
or materials or plans or specifications for the improvement
of land, and who complies with s. 779.02, shall have a lien
therefore on all interests in the land belonging to its owners.
The lien extends to all contiguous land of the owner, but
if the improvement is located wholly on one or more platted
lots belonging to the owner, the lien applies only to the
lots on which the improvement is located.
(4) Priority of construction lien. The lien provided in sub.
(3) shall be prior to any lien which originates subsequent
to the visible commencement in place of the work of improvement,
except as otherwise provided by ss. 215.21(4)(a), 292.31(8)(i),
292.41(6)(d), 292.81 and 706.11(1). When new construction
is the principal improvement involved, commencement is deemed
to occur no earlier than the beginning of substantial excavation
for the foundations, footings or base of the new construction,
except where the new construction is to be added to a substantial
existing structure, in which case the commencement is the
time of the beginning of substantial excavation or the time
of the beginning of substantial preparation of the existing
structure to receive the added new construction, whichever
is earlier. The lien also shall be prior to any unrecorded
mortgage give prior to the commencement of the work of improvement,
if the lien claimant has no actual notice of the mortgage
before the commencement. Lien claimants who perform work or
procure its performance or furnish any labor or materials
or plans or specifications for an improvement prior to the
visible commencement of the work of improvement shall have
lien rights, but shall have only the priority accorded to
other lien claimants.
(5) Assignment of lien, garnishment. Assignment of a claim
or right to a lien or any part thereof by a prime contractor,
or garnishment by the creditor of a prime contractor, subcontractor,
materialman, laborer or mechanic, shall not operate to compel
the owner, prime contractor, subcontractor or materialman
to pay the assignee or creditor until the lien claims of subcontractors,
materialmen and laborers under this subchapter have either
been paid in full, matured by notice and filing or expired.
If such claims become liens, the owner, prime contractor,
subcontractor or materialman shall be compelled to pay such
assignee or creditor only what remains due in excess of such
liens.
779.02
Notice Required to Preserve Lien Rights; Exceptions; Saving
Clause; Obligations of Contractors
(1) Exceptions to notice requirement. The notice required
to be given by lien claimants under sub. (2) shall not be
required to be given in the following cases only:
(a) By any laborer or mechanic employed by any prime contractor
or subcontractor.
(b) By any lien claimant who has contracted directly with
the owner for the work or materials furnished, unless the
claimant is a prime contractor subject to the notice requirement
of sub. (2)(a).
(c) By any lien claimant furnishing labor or materials for
an improvement in any case where more than 4 family living
units are to be provided or added by such work of improvement,
if the improvement is wholly residential in character, or
in any case where more than 10,000 total usable square feet
of floor space is to be provided or added by such work of
improvement, if the improvement is partly or wholly nonresidential
in character.
(d) By any prime contractor who is personally an owner of
the land to be improved, by any corporate prime contractor
of which an owner of the land is an officer or controlling
shareholder, by any prime contractor who is an officer or
controlling shareholder of a corporation which is an owner
of the land or by any corporate prime contractor managed or
controlled by substantially the same persons who manage or
control a corporation which is an owner of the land.
(e) By any lien claimant, other than a prime contractor, who
furnishes labor or materials for an improvement on a project
on which the prime contractor is not required to give notice
under this section.
(2) Notice to owner, lender and materialman. (a) Every prime
contractor who enters into a contract with the owner for a
work of improvement on the owner’s land and who has
contracted or will contract with any subcontractors or materialmen
to provide labor or materials for the work of improvement
shall include in any written contract with the owner the notice
required by this paragraph, and shall provide the owner with
a copy of the written contract. If no written contract for
the work of improvement is entered into, the notice shall
be prepared separately and served personally or by registered
mail on the owner or authorized agent within 10 days after
the first labor or materials are furnished for the improvement
by or pursuant to the authority of the prime contractor. The
notice, whether included in a written contract or separately
given, shall be in at least 8-point bold type, if printed,
or in capital letters, if typewritten. It shall be in substantially
the following language: “As required by the Wisconsin
construction lien law, builder hereby notifies owner that
persons or companies furnishing labor or materials for the
construction on owner’s land may have lien rights on
owner’s land and buildings if not paid. Those entitled
to lien rights, in addition to the undersigned builder, are
those who contract directly with the owner or those who give
the owner notice within 60 days after they first furnish labor
or materials for the construction. Accordingly, owner probably
will receive notices from those who furnish labor or materials
for the construction, and should give a copy of each notice
received to the mortgage lender, if any. Builder agrees to
cooperate with the owner and the owner’s lender, if
any, to see that all potential lien claimants are duly paid”.
(b) Every person other than a prime contractor who furnishes
labor or materials for an improvement shall have the lien
and remedy under this subchapter only if within 60 days after
furnishing the first labor or materials the person gives notice
in writing, in 2 signed copies, to the owner either by personal
service on the owner or authorized agent or by registered
mail with return receipt requested to the owner or authorized
agent at the last-known post-office address. The owner or
agent shall provide a copy of the notice received, within
10 days after receipt, to any mortgage lender who is furnishing
or is to furnish funds for construction of the improvement
to which the notice relates. The notice to the owner shall
be in substantially the following language, with blanks accurately
filled in:
As a part of your construction contract, your prime contractor or claimant has already advised you that those who perform, furnish, or procure labor, services, materials, plans, or specifications for the work will be notifying you. The undersigned first performed, furnished, or procured labor, services, materials, plans, or specifications on .... (give date) for the improvement now under construction on your real estate at .... (give legal description, street address or other clear description). Please give your mortgage lender the extra copy of this notice within 10 days after you receive this, so your lender, too, will know that the undersigned is included in the job.
(c) If any prime contractor required to give the notice prescribed
in par. (a) fails to give notice as required, such contractor
does not have the lien and remedy provided by this subchapter
unless the contractor pays all of the contractor’s obligations
to subcontractors and materialmen in respect to the work of
improvement within the time periods under s. 779.06 and until
the time for notice under par. (b) has elapsed and no lien
claimant under par. (b) gives notice.
(d) Every mortgage lender making an improvement or construction
loan shall make reasonable inquiry of the owner as to whether
any notices required by this subsection have been given. A
lender is not required to pay out any loan proceeds unless
or until the prime contractor has given any notice required
of such contractor by this subsection.
(e) If the owner or lender complains of any insufficiency
of any notice, the burden of proof is upon the owner or lender
to show that he or she has been misled or deceived by the
insufficiency. If there is more than one owner, giving the
notice required to any one owner or authorized agent is sufficient.
In addition, every prime contractor and subcontractor, at
the time of purchasing or contracting for any materials to
be used in any of the cases enumerated in s. 779.01. shall
upon request deliver to the materialman a description of the
real estate upon which the materials are to be used and the
name and post-office address of the owner and authorized agent,
if any. Failure to receive such description and name and address
does not relieve a materialman who asserts a lien from the
requirement of giving timely notice.
(3) Failure to give notice; saving clause. Any lien claimant,
other than the prime contractor, who fails to give a notice
as required by sub. (2)(b) shall have no lien on the land
or improvement to which the failure relates. Any claimant
who serves a late but otherwise proper notice personally or
by registered mail on the owner or authorized agent shall
have the lien provided by s. 779.01 for any labor or materials
furnished after the late notice is actually received by the
owner. The burden of proving that labor or materials for which
a lien is claimed were furnished after that date is on the
lien claimant.
(4) Notice and filing requirements in s. 779.06 unaffected.
Nothing in this section shall be construed to relieve any
lien claimant of the notice and filing requirements under
s. 779.06.
(5) Theft by contractors. The proceeds of any mortgage on
land paid to any prime contractor or subcontractor for improvements
upon the mortgaged premises, and all moneys paid to any prime
contractor or subcontractor by any owner for improvements,
constitute a trust fund only in the hands of the prime contractor
and subcontractor to the amount of all claims due or to become
due or owing from the prime contractor or subcontractor for
labor and materials used 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,
such misappropriation also shall be deemed theft by any officers,
directors or agents of the corporation 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 of the corporation
not responsible for the misappropriation shall be a civil
liability of the shareholder 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 does not create a civil cause
of action against any other person. Until all claims are paid
in full, have matured by notice and filing or have expired,
such proceeds and moneys shall not be subject to garnishment,
execution, levy or attachment.
(6) Prime contractors to defend lien actions. Where a lien
is filed under this subchapter by any person other than the
prime contractor, the prime contractor shall defend any action
thereon at personal expense, and during the pendency of the
action the owner may withhold from the prime contractor the
amount for which the lien was filed and sufficient to defray
the costs of the action. In case of judgment against the owner,
the owner may deduct from any amount due to the prime contractor
the amount of the judgment and if the judgment exceeds the
amount due, the owner may recover the difference from the
prime contractor. This subsection does not apply if the lien
is the result of the failure of the owner to pay the prime
contractor.
(7) Wrongful use of materials. Any prime contractor or any
subcontractor furnishing materials who purchases materials
on credit and represents at the time of making the purchase
that the materials are to be used in a designated building
or other improvement and thereafter uses or causes them to
be used in the construction of any improvement other than
that designated, without the written consent of the seller,
may be fined not more than $300 or imprisoned not more than
3 months.
(8) Wage payments to laborer apply to earlier work. In any
situation where a laborer or mechanic employed by any prime
contractor or subcontractor has wage payments due and has
worked on more than one improvement for the employer during
the period for which the wages are due, and a payment of less
than all wages due is made, the payment is deemed to apply
to the unpaid work in chronological sequence starting with
the earliest unpaid time, unless the laborer agrees in writing
that the payment shall be applied in a different way.
779.03 Lien Valid Unless Waived by
Claimant Personally, or Unless Payment Bond Furnished
(1) No agreement by other than claimant may invalidate lien.
Subject to s. 779.05, a lien claimant may waive the lien given
by s. 779.01 by a writing signed by the lien claimant, but
no action by nor agreement between any other persons shall
invalidate the lien, other than payment in full to the claimant
for the labor or materials to which the lien claim relates.
(2) Payment bond may eliminate lien rights. In any case where
the prime contractor, pursuant to agreement with the owner,
has furnished a payment bond under s. 779.035, all liens provided
by s. 779.01 except those of any prime contractor do not exist,
ss. 779.02(1) to (4) and (6) and 779.06 do not apply and all
claimants who have no lien shall follow the requirements and
procedures specified in ss. 779.035 and 779.036.
779.035
Form of Contract; Payment Bond; Remedy
(1) To eliminate lien rights as provided in s. 779.03(2),
the contract between the owner and the prime contractor for
the construction of the improvement shall contain a provision
for the payment by the prime contractor of all claims for
labor performed and materials or plans or specifications furnished,
used or consumed, except plans or specifications furnished
by the architect, professional engineer or surveyor employed
by the owner, in making such improvement and performing the
work of improvement. The contract shall not be effective to
eliminate lien rights unless the prime contractor gives a
bond issued by a surety company licensed to do business in
this state. The bond shall carry a penalty for unpaid claims
of not less than the contract price, and shall be conditioned
for the payment to every person entitled thereto of all the
claims for labor performed, and materials furnished under
the contract and subsequent amendments thereto, to be used
or consumed in making the improvement or performing the work
of improvement as provided in the contract and subsequent
amendments thereto. The bond shall be approved by the owner
and by any mortgage lender furnishing funds for the construction
of the improvement. No assignment, modification or change
in the contract, or change in the work covered thereby, or
any extension of time for completion of the contract shall
release the sureties on the bond.
(2) (a) Except as provided in par. (b), any party in interest
may, not later than one year after the completion of the contract
for the construction of the improvement, maintain an action
in his or her own name against the prime contractor and the
sureties upon the bond for the recovery of any damages sustained
by reason of the failure of the prime contractor to comply
with the contract or with the contract between the prime contractor
and subcontractors. If the amount realized on the bond is
insufficient to satisfy all of the claims of the parties in
full, it shall be distributed among the parties proportionally.
(b) 1. Except as provided in subd. 2., a subcontractor or
supplier may maintain an action under par. (a) only if the
subcontractor or supplier has notified the prime contractor
in writing that the subcontractor or supplier was providing
labor or materials for the construction of the improvement.
The notice must be provided no later than 60 days after the
date on which the subcontractor or supplier first provided
the labor or materials.
2. A notice under subd. 1. is not required if any of the following
applies:
a. The contract for the provision of labor or materials does
not exceed $5,000.
b. The action is brought by an employee of the prime contractor,
the subcontractor or the supplier.
c. The subcontractor or supplier is listed in a written contract,
or in a document appended to a written contract, between a
subcontractor or supplier and the prime contractor.
(3) In any case in which the improvement contract and bond
have been prepared and executed pursuant to sub. (1) upon
inquiry by any subcontractor, materialman, laborer or mechanic
furnishing labor or materials for said improvement, the prime
contractor and the owner shall so advise the person making
the inquiry and shall give the person reasonable opportunity
to inspect and examine the contract and bond.
779.036 Contracts with Payment Bond; Lien; Notice; Duty of
Owner and Lender
(1) In any case in which an improvement is constructed or
to be constructed pursuant to a contract and payment bond
under s. 779.035, any person furnishing labor or materials
or plans or specifications to be used or consumed in making
the improvement, to any prime contractor or subcontractor
shall have a lien on the money or other payment due or to
become due the prime contractor or subcontractor therefore,
if the lienor, before payment is made to the prime contractor
or subcontractor, gives written notice of the lienor’s
claim by registered mail with return receipt requested to
the owner or authorized agent and to any mortgage lender furnishing
funds for the construction of the improvement. Upon receipt
of the notice, the owner and lender shall assure that a sufficient
amount is withheld to pay the claim and, when it is admitted
by the prime contractor or subcontractor involved or established
under sub. (3), shall pay the claim and charge it to the prime
contractor or subcontractor as appropriate. Any owner or lender
violating this duty shall be liable to the claimant for the
damages resulting from the violation. There shall be no preference
among lienors serving such notices.
(2) A copy of the notice provided in sub. (1) also shall be
served by the lienor, within 7 days after service of the notice
upon the owner and lender, upon the prime contractor or subcontractor
by registered mail with return receipt requested.
(3) If the prime contractor or subcontractor does not dispute
the claim within 30 days after service of written notice under
sub. (2), by registered mail with return receipt requested
to the owner and lender, the amount claimed shall be paid
over to the claimant on demand and charged to the prime contractor
or subcontractor pursuant to sub. (1). If the prime contractor
or subcontractor disputes the claim, the right to a lien and
to the moneys in question shall be determined in an action
brought by the claimant or the prime contractor or subcontractor.
If the action is not brought within 3 months from the time
the notice required by sub. (1) is served, the lien rights
under this section are barred.
(4) (a) When the total lien claims exceed the sum due the
prime contractor or subcontractor concerned and where the
prime contractor or subcontractor has not disputed the amounts
of the claims filed, the owner with the concurrence of the
lender shall determine on a proportional basis who is entitled
to the amount being withheld and shall notify all claimants
and the prime contractor or subcontractor in writing of the
determination. Unless an action is commenced by a claimant
or by the prime contractor or subcontractor within 20 days
after the mailing of said notice, the money shall be paid
out in accordance with the determination and the liability
of the owner and lender to any claimant shall cease.
(b) If an action is commenced, all claimants, the owner and
the lender shall be made parties. Such action shall be brought
within 6 months after completion of the work of improvement
or within the time limit prescribed by par. (a), whichever
is earlier.
(c) Within 10 days after the filing of a certified copy of
the judgment in any such action with the owner and lender,
the money due the prime contractor or subcontractor shall
be paid to the clerk of the court to be distributed in accordance
with the judgment.
779.04 Claims Assignable; Notice; Prior
Payment
All claims for liens and right to recover therefore under
this subchapter are assignable. Notice in writing of such
assignment may be served upon the owner of the property affected
and all payments made by the owner before service of such
notice shall discharge the debt to the amount paid. The assignee
may file petitions for such liens and may bring an action
in the assignee’s name to enforce the same, subject
to the limitations in s. 779.01(5).
779.05
Waivers of Lien
(1) Any document signed by a lien claimant or potential claimant
and purporting to be a waiver of construction lien rights
under this subchapter, is valid and binding as a waiver whether
or not consideration was paid therefore and whether the document
was signed before or after the labor or material was furnished
or contracted for. Any ambiguity in such document shall be
construed against the person signing it. Any waiver document
shall be deemed to waive all lien rights of the signer for
all labor and materials furnished or to be furnished by the
claimant at any time for the improvement to which the waiver
relates, except to the extent that the document specifically
and expressly limits the waiver to apply to a particular portion
of such labor and materials. A lien claimant or potential
lien claimant of whom a waiver is requested is entitled to
refuse to furnish a waiver unless paid in full for the work
or material to which the waiver relates. A waiver furnished
is a waiver of lien rights only, and not of any contract rights
of the claimant otherwise existing.
(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.
779.06 Filing Claim and Beginning Action;
Notice Required Before Filing; Contents of Claim Document
(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 furnished the last
labor or materials 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 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.
(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, personally or by registered
mail with return receipt requested, 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.
(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 the performance of any labor or the furnishing
of any materials, 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.
779.07 Judgment and Lien Docket
(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:
(a) Name of person against whom lien is claimed.
(b) Name of claimant or assignee.
(c) Attorney for claimant.
(d) Last date of performance of labor or furnishing materials.
(e) Description of copies of notices attached to claim when
filed.
(f) Date and time of filing claim.
(g) Description of property.
(h) Amount claimed.
(i) Satisfaction.
(2) The judgment and lien docket shall be presumptive evidence
of the correctness of its entries.
779.08 Release of Lien; Undertaking
(1) The person against whom a lien is claimed or any other
interested party may file with the clerk of the court in whose
office the claim for lien is filed an undertaking executed
by 2 or more sufficient sureties 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 sureties 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 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.
(2) If an undertaking is furnished, it shall be accompanied
by the affidavits of the sureties in which each states that
the surety is worth, over and above all debts the 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.
(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.
(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.
(5) If no action to foreclose the lien is brought within the
time specified by s. 779.06(1), the clerk of the 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.
779.09 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.
779.10 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 work
or furnishing the materials 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 or materials, the plaintiff may have a judgment
against the party liable.
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.
779.12
Sale; Notice and Report; Deficiency Judgment; Writ of Assistance
(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.
(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.
779.13
Satisfaction of Judgment or Lien; Correction of Errors
(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.
(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
furnished the work or materials 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.
779.135 Construction Contracts, Form of Contract
The following provisions in contracts for the improvement
of land in this state are void:
(1) Provisions requiring a contractor, subcontractor or material
supplier 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 or materials or both that he or she
furnished.
(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.
(3) Provisions making a payment to a general contractor from
any person who does not have a contractual agreement with
the subcontractor or supplier a condition precedent to a general
contractor’s payment to a subcontractor or a supplier.
This subsection does not prohibit contract provisions that
may delay a payment to a subcontractor until the contractor
receives payment from any person who does not have a contractual
agreement with the subcontractor or supplier.
779.14
Public Works, Form of Contract, Bond, Remedy
(1) In this section, “subcontractor or supplier”
means the following:
(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 labor or
furnish materials, except as provided in par. (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 labor or furnish materials.
(a) All contracts with the state involving $2,500 or more
and all other contracts involving $500 or more for the performance
of labor or furnishing materials 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 performed and materials furnished, used or consumed
in making the public improvement or performing the public
work, including, without limitation because of enumeration,
fuel, lumber, building materials, machinery, vehicles, tractors,
equipment, fixtures, apparatus, tools, appliances, supplies,
electric energy, gasoline, motor oil, lubricating oil, greases,
state imposed taxes, premiums for worker’s compensation
insurance and contributions for unemployment compensation.
(b) 1. A contract under par. (a) shall not be made unless
the prime contractor gives a bond issued by a surety company
licensed to do business in this state and unless the prime
contractor agrees, to the extent practicable, to maintain
a list of all subcontractors and suppliers performing labor
or furnishing materials under the contract.
2. The bond shall carry a penalty of not less than the contract
price, and shall be conditioned for all of the following:
a. The faithful performance of the contract.
b. The payment to every person, including every subcontractor
or supplier, of all claims that are entitled to payment for
labor performed and materials furnished for the purpose of
making the public improvement or performing the public work
as provided in the contract and this subsection.
3. The bond shall be approved for the state by the state official
authorized to enter the contract, 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.
4. No assignment, modification or change of the contract,
change in the work thereby or extension of time for the completion
of the contract may release the sureties on the bond.
5. Neither the invitation for bids nor the person having power
to approve the prime contractor’s bond may require that
the bond be furnished by a specified surety company or through
a specified agent or broker.
(2) (a) Except as provided in par. (am), no later than one
year after the completion of work under the contract, any
party in interest, including any subcontractor or supplier,
may maintain an action in that party’s name against
the prime contractor and the sureties upon the bond for the
recovery of any damages sustained by reason of any of the
following:
1. Failure of the prime contractor to comply with the contract.
2. Except as provided in subd. 3, failure of the prime contractor
or a subcontractor of the prime contractor to comply with
a contract, whether express or implied, with a subcontractor
or supplier for the performance of labor or furnishing of
materials for the purpose of making the public improvement
or performing the public work that is the subject of the contract
under sub. (1m).
3. With respect to contracts entered into under s. 84.06(2)
for highway improvements, failure of the prime contractor
to comply with a contract, whether express or implied, with
a subcontractor or supplier of the prime contractor for the
performance of labor or furnishing of materials for the purpose
of making the highway improvement that is the subject of the
contract under sub. (1m).
(am) 1. Except as provided in subd. 2., a subcontractor or
supplier may maintain an action under par. (a) only if the
subcontractor or supplier has notified the prime contractor
in writing that the subcontractor or supplier has provided
or will provide labor or materials to the public work or improvement.
The notice must be provided no later than 60 days after the
date on which the subcontractor or supplier first provided
the labor or materials.
2. A notice under subd. 1. is not required if any of the following
applies:
a. The contract for the provision of the labor or materials
does not exceed $5,000.
b. The action is brought by an employee of the prime contractor,
the subcontractor or the supplier.
c. The subcontractor or supplier is listed in the list required
to be maintained under sub. (1m)(b)1. or in a written contract,
or in a document appended to a written contract, between a
subcontractor or supplier and the prime contractor.
(b) If the amount realized on the bond is insufficient to
satisfy all claims of the parties in full, it shall be distributed
among the parties proportionally.
(3) In an action by a county upon the bond all persons for
whose protection it was given and who make claim thereunder
may be joined in the action. The county highway commissioner
may take assignments of all demands and claims for labor or
material and enforce the same in the action for the benefit
of the assignors, and the judgment may provide the manner
in which the assignors shall be paid.
779.15 Public Improvements; Lien on
Contractor; Duty of Officials
(1) Any person furnishing labor or materials to be used or
consumed in making public improvements or performing public
work, including fuel, lumber, machinery, vehicles, tractors,
equipment, fixtures, apparatus, tools, appliances, supplies,
electrical energy, gasoline, motor oil, lubricating oil, greases,
state imposed taxes, premiums for worker’s compensation
insurance and contributions for unemployment compensation,
to any prime contractor, except in cities of the 1st class,
shall have alien on the money or bonds or warrants due or
to become due the prime contractor therefore, if the lienor,
before payment is made to the prime contractor, gives written
notice to the debtor state, county, town or municipality of
the claim. The debtor shall withhold a sufficient amount to
pay the claim and, when it is admitted by the prime contractor
or established under sub. (3), shall pay the claim and charge
it to the prime contractor. Any officer violating the duty
hereby imposed shall be liable on his or her official bond
to the claimant for the damages resulting from the violation.
There shall be no preference between the lienors serving the
notices.
(2) Service of the notice under sub. (1) shall be made by
registered mail upon the clerk of the municipality or in the
clerk’s absence upon the treasurer. If any of the money
due the prime contractor is payable by the state, service
of the notice under sub. (1) shall be served by registered
mail upon the state department, board or commission having
jurisdiction over the work. A copy of the notice shall be
served concurrently by registered mail upon the prime contractor.
(3) If a valid lien exists under sub. (1) and the prime contractor
does not dispute the claim within 30 days after service on
the prime contractor of the notice provided in sub. (2), by
written notice to the debtor state, county, town or municipality,
the amount claimed shall be paid over to the claimant on demand
and charged to the prime contractor pursuant to sub. (1).
If the prime contractor disputes the claim, the right to a
lien and to the moneys in question shall be determined in
an action brought by the claimant or the prime contractor.
If the action is not brought within 3 months from the time
the notice required by sub. (1) is served, and notice of bringing
the action filed with the officer with whom the claim is filed,
the lien rights are barred.
(4) (a) When the total of the lien claims exceeds the sum
due the prime contractor and where the prime contractor has
not disputed the amounts of the claims filed, the debtor state,
county, town or municipality, through the officer, board,
department or commission with whom the claims are filed, shall
determine who is entitled to the money and shall notify all
claimants and the prime contractor in writing of the determination.
Unless an action is commenced by a claimant or by the prime
contractor within 20 days after the mailing of the notice,
the money shall be paid out in accordance with the determination
and the liability of the state, county, town or municipality
to any lien claimant shall cease.
(b) If an action is commenced, all claimants shall be made
parties and the action shall be commended within 3 months
after acceptance of the work by the proper public authority
except as otherwise herein provided.
(c) Within 10 days after the filing of a certified copy of
judgment in any such action with the officers with whom the
notice authorized by sub. (1) is filed, the money due the
prime contractor shall be paid to the clerk of court to be
distributed in accordance with the judgment.
779.155 Judgment Creditors, Attachment
of Funds Due to Public Contractors
(1) Limitations. This section does not apply to cases covered
by s. 812.42. Demands covered by s. 779.15 have priority over
judgments filed under this section. The remedies afforded
by s. 779.15 and by this section are complementary.
(2) Certified copies of judgments filed. In this section,
“municipality” includes city, village, county,
town, school district, technical college district and any
quasi municipal corporation. When the state or any municipality
is indebted to any contractor, the owner of a judgment against
the contractor may attach the debt by filing a certified copy
of his or her judgment in the manner and subject to the conditions
and limitations of this section. If the debt is owned by the
state upon a contractor for public improvements, the certified
copy shall be filed with the officer, board, department or
commission having jurisdiction over the work. Otherwise, the
copy shall be filed with the department of administration.
If the debt is owed by a municipality, the copy shall be filed
with the municipal clerk or corresponding officer. The judgment
creditor shall promptly notify the judgment debtor of the
filing, within the time and as provided by s. 812.07 for service
upon the defendant.
(3) Payment to judgment creditor; exception. Except as to
contractors on public works, the proper officers of the state
or municipality shall pay the judgment out of moneys due the
contractor or which became due the contractor, but no payment
shall be made until 30 days after the creditor has filed with
such officers proof that the contractor had been notified
of the filing of a copy of the judgment against the contractor.
(4) Same; funds due public contractors. When the state or
a municipality is indebted to a contractor for public improvements,
payment shall not be made to the judgment creditor until 3
months after final completion and acceptance of the public
work and then only out of moneys due the contractor in excess
of unpaid lienable claims having priority under s. 779.15.
(5) Adjustment of lien claims. (a) For the purpose of administering
this section, sworn statements of the contractor setting forth
the unpaid lien claims filed or fileable under s. 779.15 may
be accepted by the proper officer, board, department or commission,
unless the judgment creditor or other interested person gives
written notice that an action is pending to determine whether
specified lien claims were incurred in performing the public
work and the amount thereof, or to determine the priorities
in which event payments shall await the result of the action.
(b) Within 10 days after filing the certified copy of the
judgment under sub. (2), the contractor shall file the sworn
statement in duplicate, with the proper officer, board, department
or commission, who shall immediately furnish the judgment
creditor with one of the statement. The judgment creditor
shall have 10 days from the receipt thereof in which to serve
the notice of pendency of the court action.
(6) Payments to judgment creditor. After the expiration of
the 3-month period, the moneys due the contractor in excess
of unpaid lienable expenses and claims incurred in performing
the public work shall be paid to the judgment creditor, but
not exceeding the amount due on the judgment
(7) Priority of judgments over assignments. Any judgment filed
under this section has priority over an assignment made by
the contractor after the commencement of the action in which
the judgment was obtained.
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
and shall not be a trust fund in the hands of any other person.
The use of the moneys by the prime contractor or subcontractor
for any purpose other than the payment of claims on such public
improvement, before the claims have been satisfied, constitutes
theft by the prime contractor or subcontractor and is punishable
under s. 943.20. 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.
779.17
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 contractor shall be entitled to the release
of any moneys due the 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 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. |
