8 AN ACT concerning civil procedure; relating to design professional liens; 9 amending K.S.A. 60-1102, 60-1103, 60-1103a, 60-1106 and 60-1110 10 and K.S.A. 1996 Supp. 60-1103b and repealing the existing sections. 11 12 Be it enacted by the Legislature of the State of Kansas: 13 New Section 1. Any person furnishing or performing architectural, 14 professional engineering, land surveying or landscape architectural serv- 15 ices, hereafter called a design professional, for the improvement of real 16 property, under contract with the owner or with the trustee, agent or 17 spouse of the owner, shall have a lien upon the property for the services 18 furnished or performed, so long as the design professional was properly 19 licensed pursuant to chapter 74 of the Kansas Statutes Annotated, and 20 amendments thereto, at all such times. The lien shall be preferred to all 21 other liens or encumbrances which are subsequent to the commencement 22 of the furnishing or performing of such services relating to the property 23 subject to the lien. When two or more such contracts are entered into 24 applicable to the same improvement, the liens of all claimants shall be 25 similarly preferred to the date of the earliest unsatisfied lien of any of 26 them. 27 Section 2. K.S.A. 60-1102 is hereby amended to read as follows: 60- 28 1102. (a) Filing. Any person claiming a lien on real property, under the 29 provisions of K.S.A. 60-1101 or section 1, and amendments thereto, shall 30 file with the clerk of the district court of the county in which property is 31 located, within four months after the date material, equipment or sup- 32 plies, used or consumed was last furnished or last labor or services per- 33 formed under the contract a verified statement showing: 34 (1) The name of the owner, 35 (2) the name and address sufficient for service of process of the claim- 36 ant, 37 (3) a description of the real property, 38 (4) a reasonably itemized statement and the amount of the claim, but 39 if the amount of the claim is evidenced by a written instrument, or if a 40 promissory note has been given for the same, a copy thereof may be 41 attached to the claim in lieu of the itemized statement. 42 (b) Recording. Immediately upon the receipt of such statement the HB 2228 2 1
2 -clerk of the court shall index the lien in the general index by party names 3 and file number. 4 Sec. 3. K.S.A. 60-1103 is hereby amended to read as follows: 60- 5 1103. (a) Procedure. Any supplier, subcontractor or other person furnish- 6 ing labor, equipment, material or supplies, used or consumed at the site 7 of the property subject to the lien or services relating to such property, 8 under an agreement with the contractor, subcontractor, orowner con- 9 tractor or design professional may obtain a lien for the amount due in the 10 same manner and to the same extent as the original contractor or design 11 professional except that: 12 (1) The lien statement must state the name of the contractor or de- 13 sign professional and be filed within three months after the date supplies, 14 material or, equipment or services was last furnished or labor performed 15 by the claimant; 16 (2) if a warning statement is required to be given pursuant to K.S.A. 17 60-1103a, and amendments thereto, there shall be attached to the lien 18 statement the affidavit of the supplier or subcontractor that such warning 19 statement was properly given; and 20 (3) a notice of intent to perform, if required pursuant to K.S.A. 60- 21 1103b, and amendments thereto, must have been filed as provided by 22 that section. 23 (b) Owner contractor is defined as any person, firm or corporation 24 who: 25 (1) Is the fee title owner of the real estate subject to the lien; and 26 (2) enters into contracts with more than one person, firm or corpo- 27 ration for labor, equipment, material or supplies used or consumed for 28 the improvement of such real property. 29 (c) Recording and notice. When a lien is filed pursuant to this section, 30 the clerk of the district court shall enter the filing in the general index. 31 The claimant shall (1) cause a copy of the lien statement to be served 32 personally upon any one owner and any party obligated to pay the lien in 33 the manner provided by K.S.A. 60-304, and amendments thereto, for the 34 service of summons within the state, or by K.S.A. 60-308, and amend- 35 ments thereto, for service outside of the state, (2) mail a copy of the lien 36 statement to any one owner of the property and to any party obligated to 37 pay the same by restricted mail or (3) if the address of any one owner or 38 such party is unknown and cannot be ascertained with reasonable dili- 39 gence, post a copy of the lien statement in a conspicuous place on the 40 premises. The provisions of this subsection requiring that the claimant 41 serve a copy of the lien statement shall be deemed to have been complied 42 with, if it is proven that the person to be served actually received a copy 43 of the lien statement. 44 (d) Rights and liability of owner. The owner of the real property shall HB 2228 3 1 2 -not become liable for a greater amount than the owner has contracted to 3 pay the original contractor or design professional, except for any payments 4 to the contractor or design professional made: 5 (1) Prior to the expiration of the three-month period for filing lien 6 claims, if no warning statement is required by K.S.A. 60-1103a, and 7 amendments thereto; or 8 (2) subsequent to the date the owner received the warning statement, 9 if a warning statement is required by K.S.A. 60-1103a, and amendments 10 thereto. 11 The owner may discharge any lien filed under this section which the 12 contractor or design professional fails to discharge and credit such pay- 13 ment against the amount due the contractor. 14 Sec. 4. K.S.A. 60-1103a is hereby amended to read as follows: 60- 15 1103a. (a) As used in this section, ``improvement of residential property'' 16 means: 17 (1) Improvement of a preexisting structure in which the owner re- 18 sides at the time the claimant first furnishes labor, equipment, material 19 or, supplies or services and which is not used or intended for use as a 20 residence for more than two families or for commercial purposes or im- 21 provement or construction of any addition, garage, fence, swimming pool, 22 outbuilding or other improvement appurtenant to such a structure; or 23 (2) any construction upon or design services for real property which 24 is (A) owned or acquired by an individual at the time the claimant first 25 furnishes labor, equipment, material or, supplies or services; (B) intended 26 to become and does become the principal personal residence of that 27 individual upon completion; and (C) not used or intended for use as a 28 residence for more than two families or for commercial purposes. 29 (b) A lien for the furnishing of labor, equipment, materials or, sup- 30 plies or services for the improvement of residential property may be 31 claimed pursuant to K.S.A. 60-1103 and amendments thereto only if the 32 claimant has: 33 (1) Mailed to any one of the owners of the property a warning state- 34 ment conforming with this section; or 35 (2) in the claimant's possession a copy of a statement signed and dated 36 by any one owner of the property stating that the general contractor, the 37 design professional or the claimant had given the warning statement con- 38 forming with this section to one such owner of the property. 39 (c) The warning statement provided for by this section, to be effec- 40 tive, shall contain substantially the following statement: 41 ``Notice to owner: (name of supplier or subcontractor) is a supplier or subcontractor 42 providing materials or labor on Job No. ____________ at (residence address) under an 43 agreement with (name of contractor, the design professional). Kansas law will allow this 44 supplier or subcontractor to file a lien against your property for materials or, labor or services HB 2228 4 1 2 -not paid for by your contractor or design professional unless you have a waiver of lien signed 3 by this supplier or subcontractor. If you receive a notice of filing of a lien statement by this 4 supplier or subcontractor, you may withhold from your contractor or design professional, if 5 applicable the amount claimed until the dispute is settled.'' 6 (d) The warning statement provided for by this section shall not be 7 required if the claimant's total claim does not exceed $250. 8 Sec. 5. K.S.A. 1996 Supp. 60-1103b is hereby amended to read as 9 follows: 60-1103b. (a) As used in this section, ``new residential property'' 10 means a new structure which is constructed for use as a residence and 11 which is not used or intended for use as a residence for more than two 12 families or for commercial purposes. ``New residential property'' does not 13 include any improvement of a preexisting structure or construction of any 14 addition, garage or outbuilding appurtenant to a preexisting structure. 15 (b) A lien for the furnishing of labor, equipment, materials or, sup- 16 plies or services for the construction of new residential property may be 17 claimed pursuant to K.S.A. 60-1103 and amendments thereto after the 18 passage of title to such new residential property to a good faith purchaser 19 for value only if the claimant has filed a notice of intent to perform prior 20 to the recording of the deed effecting passage of title to such new resi- 21 dential property. Such notice shall be filed in the office of the clerk of 22 the district court of the county where the property is located. 23 (c) The notice of intent to perform and release thereof provided for 24 in this section, to be effective, shall contain substantially the following 25 statement, whichever is applicable: 26 NOTICE OF INTENT TO PERFORM 27 ``I _______________________________________________________________ of 28 (name of supplier, subcontractor or, contractor 29 or design professional) 30 ___________________________________________________________________________ 31 (address of supplier, subcontractor or, contractor 32 or design professional) 33 do hereby give public notice that I am a supplier, subcontractor or contractor or other 34 person providing materials or, labor or services on property owned by ___ 35 (name of property owner) 36 and having the legal description as follows: ______________________________ 37 ___________________________________________________________________________ 38 ________________________________________________________________________.'' 39 RELEASE OF NOTICE OF INTENT TO PERFORM 40 No. _________ AND WAIVER OF LIEN 41 ``I _______________________________________________________________ of 42 (name of supplier, subcontractor or, contractor 43 or design professional) HB 2228 5 1 2 -________________________________________________________________________ 3 (address of supplier, subcontractor or, contractor 4 or design professional) 5 do hereby acknowledge that I filed notice of intent to perform no. ____________ covering 6 property owned by ____________ and having the legal description as follows: 7 (name of property owner) 8 ___________________________________________________________________________ 9 ___________________________________________________________________________ 10 ___________________________________________________________________________ 11 In consideration of the sum of $____________, the receipt of which is hereby acknowledged, 12 I hereby direct the clerk of the district court of ____________, Kansas to release the subject 13 notice of intent to perform and do hereby waive and relinquish any statutory right to a lien 14 for the furnishing of labor, equipment, materials or, supplies or services to the above-de- 15 scribed real estate under the statutes of the state of Kansas.'' 16 (d) When any claimant who has filed a notice of intent to perform 17 has been paid in full, such claimant shall be required to file in the office 18 in which the notice of intent to perform was filed, and to pay any requisite 19 filing fee, a release of such notice and waiver of lien which shall be exe- 20 cuted by the claimant, shall identify the property as set forth in the notice 21 of intent to perform, and state that it is the intention of the claimant to 22 waive or relinquish any statutory right to a lien for the furnishing of labor 23 or, material or services to the property. Upon such filing, the notice of 24 intent to perform previously filed by such claimant shall be of no further 25 force or effect, and such claimant's right to a lien under section 1 and 26 K.S.A. 60-1101 and 60-1103, and amendments thereto, shall be extin- 27 guished. 28 (e) Any owner of the real estate upon which a notice of intent to 29 perform has been filed, or any owner's heirs or assigns, or anyone acting 30 for such owner, heirs or assigns, and after payment in full to the claimant, 31 may make demand upon the claimant filing the notice of intent to per- 32 form, for the filing of a release of the notice and waiver of lien as provided 33 for in subsection (d), unless the same has expired by virtue of the provi- 34 sions set forth in subsection (f). 35 (f) Notwithstanding the requirements of subsections (d) and (e), a 36 notice of intent to perform shall be of no further force or effect after the 37 expiration of 18 months from the date of filing the same, unless within 38 such time the claimant has filed a lien pursuant to section 1 and K.S.A. 39 60-1101 and 60-1103, and amendments thereto. 40 Sec. 6. K.S.A. 60-1106 is hereby amended to read as follows: 60- 41 1106. In such actions all persons whose liens are filed as herein provided, 42 and other encumbrancers of record, shall be made parties, and issues 43 shall be made and trials had as in other cases. Where such an action is 44 brought by a subcontractor, or person other than the original contractor HB 2228 6 1 2 -or design professional, such original contractor or design professional shall 3 be made a party defendant, and shall at his or hersuch party's own 4 expense defend against the claim of every subcontractor, or other person 5 claiming a lien under this article, and if he or shesuch party fails to make 6 such defense the owner may make the same at the expense of such con- 7 tractor ; andor such design professional. Until all such claims, costs and 8 expenses are finally adjudicated, and defeated or satisfied, the owner shall 9 be entitled to retain from the contractor or design professional the 10 amount thereof, and such costs and expenses as he or shethe contractor 11 or design professional may be required to pay. If the sheriff of the county 12 in which such action is pending shall make return that he or shethe sheriff 13 is unable to find such original contractor or design professional, the court 14 may proceed to adjudicate the liens upon the land and render judgment 15 to enforce the same with costs. 16 Sec. 7. K.S.A. 60-1110 is hereby amended to read as follows: 60- 17 1110. The contractor or, owner or design professional may execute a bond 18 to the state of Kansas for the use of all persons in whose favor liens might 19 accrue by virtue of this act, conditioned for the payment of all claims 20 which might be the basis of liens in a sum not less than the contract price, 21 with good and sufficient sureties, to be approved by a judge of the district 22 court and filed with the clerk of the district court. When bond is approved 23 and filed, no lien shall attach under this act, and if when such bond is 24 filed liens have already been filed, such liens are discharged. Suit may be 25 brought on such bond by any person interested. 26 Sec. 8. K.S.A. 60-1102, 60-1103, 60-1103a, 60-1106 and 60-1110 and 27 K.S.A. 1996 Supp. 60-1103b are hereby repealed. 28 Sec. 9. This act shall take effect and be in force from and after its 29 publication in the statute book.