Wisconsin subcontractor needs to file for non payment
QUESTION: Chad, we are a subcontractor who provided awnings and labor to a developer/builder and we need to file for non payment. They paid about 3/4 of the contract amount. Do I need to file a notice of intent to file a lien 30 days before? Do I file in the county of the business? Where do I get forms? I called the county clerk of the county involved and they were no help at all. Thank you for your assistance. Leon Luker - Oshkosh Tent & Awning.
ANSWER: Please note that this answer is based on two assumptions - A) the project was purely commercial in nature and B) the project was not subject to a construction bond.
A subcontractor (and/or a supplier) on a private large construction project (See Wis. Stat. § 779.02(1)(c)), has the right to file a lien if he/she has complied with Wisconsin Statutes, Chapter 779, located at the following link:
In order to perfect a lien under the general facts stated above, it is strongly recommended that an attorney be retained to ensure that the proper process is followed. The Wisconsin construction lien forms needed should be available through this website. With that being said, here is a general and not specific outline of what most likely should be done:
1. Determine the identity and address of the owner: Obtain the correct name and address of all owners of the property where the work was performed and/or the materials were supplied.
Generally, for under $100, the subcontractor should obtain a title letter report from a title company regarding a property address which will disclose the true owner(s) of the property. This needs to be done absolutely correctly for the subcontractor to proceed to the next step. An alternative to a title search is conducting a search in the Winnebago County website located here:
2. Serve the owner with the Subcontractor's Notice of Intent to File Lien form: Once the identity of the owner(s) has been determined, the subcontractor must serve all owners with a Notice of Intent to File Lien form. The deadline for serving this Notice is within five (5) months of the day that the subcontractor last worked on the site (i.e., provided labor or materials to improve the property) (See Wis. Stat. § 779.06(2)). The information that is required to be included in this Notice, the procedure for serving the Notice, and the specific timing for serving the notice, must strictly comply with Wis. Stat. Chp. 779.
3. File the Subcontractor's Claim for Lien form: The subcontractor must file the Claim for Lien form with the clerk of circuit court in the county where the property is located no less than thirty (30) days after he/she/it has served the Notice of Intent to File Lien in Step 2 above, but within six (6) months from the date that he/she/it last performed substantial work on, or provided materials to, the property. The information that is required to be included in this form, the procedure for serving the Claim for Lien form on the owner, and the specific timing for serving the Claim for Lien form on the owner, must strictly comply with Wis. Stat. Chp. 779.
4.Serve the owner with the Claim for Lien form: The subcontractor must serve the owner with the Claim for Lien form within thirty (30) days from the date that the Claim for Lien form was filed with the clerk.
5. Foreclose on the lien: If the matter is not settled after following the steps above then within two (2) years from the date that the subcontractor filed the Claim for Lien in Step 3 above, the subcontractor must foreclose on the lien by filing a lien foreclosure lawsuit in circuit court.
Caution: It is strongly recommended that an attorney be retained to assist in this process. The procedure can be confusing and mistakes in the process could cause the subcontractor to be subjected to a slander of title claim and other damages.
Note: The types of notices and claim forms and the deadlines that apply, change depending on the type of project and the type of claimant. This answer should not be viewed as a cookie-cutter answer to all lien scenarios.
Wisconsin Notice of Intent to File Lien and Claim for Lien forms
Thank you to Chad Koplien for the above answer. Chad is a Wisconsin construction litigation attorney with Stafford Rosenbaum LLC, a legal firm located in Madison Wisconsin and Brookfield Wisconsin.
The information on these pages provides legal information about Wisconsin statutes designed to help contractors acquire general background information on construction liens in Wisconsin. It is important to note that legal information is not the same as legal advice. Legal advice is the application of the specific applicable laws to a contractor's specific fact scenario. Although we go to great lengths to make sure our information is accurate and useful, you must retain a lawyer, and enter into an attorney-client relationship if you want to obtain professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.
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