MR. PRESIDENT:
The Senate Committee on Rules and Legislative Procedure, to which was referred Senate Bill No. 34,
has had the same under consideration and begs leave to report the same back to the Senate with the
recommendation that said bill be AMENDED as follows:
Delete the title and insert the following:
A BILL FOR AN ACT to amend the Indiana Code concerning
property.
Delete everything after the enacting clause and insert the following:
SECTION 1.
IC 32-8-3-1
, AS AMENDED BY P.L.53-1999,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 1. (a) That contractors, subcontractors, mechanics,
lessors leasing construction and other equipment and tools, whether or
not an operator is also provided by the lessor, journeymen, laborers and
all other persons performing labor or furnishing materials or
machinery, including the leasing of equipment or tools used, for the
erection, altering, repairing or removing any house, mill, manufactory,
or other building, bridge, reservoir, systems of waterworks, or other
structures, or for construction, altering, repairing, or removing any walk
or sidewalk, whether such walk or sidewalk be on the land or bordering
thereon, stile, well, drain, drainage ditch, sewer or cistern or any other
earth-moving operation may have a lien separately or jointly upon the
house, mill, manufactory or other building, bridge, reservoir, system of
waterworks or other structure, sidewalk, walk, stile, well, drain,
drainage ditch, sewer or cistern or earth which they may have erected,
altered, repaired, moved or removed or for which they may have
furnished materials or machinery of any description, and, on the
interest of the owner of the lot or parcel of land on which it stands or
with which it is connected to the extent of the value of any labor done,
material furnished, or either, including any use of such leased
equipment and tools, and all claims for wages of mechanics and
laborers employed in or about any shop, mill, wareroom, storeroom,
manufactory or structure, bridge, reservoir, system of waterworks or
other structure, sidewalk, walk, stile, well, drain, drainage ditch or
cistern or any other earth-moving operation shall be a lien on all the
machinery, tools, stock or material, work finished or unfinished,
located in or about such shop, mill, wareroom, storeroom, manufactory
or other building, bridge, reservoir, system of waterworks, or other
structure, sidewalk, walk, stile, well, drain, drainage ditch, sewer,
cistern, or earth used in a business.
(b) If the person, firm, limited liability company, or corporation
described in subsection (a) is in failing circumstances, the claims
described in subsection (a) shall be preferred debts whether a claim or
notice of lien has been filed or not.
(c) A provision or stipulation described by this subsection may only
be included in a construction contract for the construction, alteration,
or repair of the following:
(1) A Class 2 structure (as defined in
IC 22-12-1-5
) or an
improvement on the same real estate auxiliary to a Class 2
structure (as defined in
IC 22-12-1-5
).
(2) Property that is:
(A) owned, operated, managed, or controlled by a public
utility (as defined in
IC 8-1-2-1
), municipally owned utility
(as defined in
IC 8-1-2-1
), joint agency (as defined in
IC 8-1-2.2-2
), rural electric membership corporation formed
under
IC 8-1-13-4
, rural telephone cooperative corporation
formed under
IC 8-1-17
, or not-for-profit utility (as defined
in
IC 8-1-2-125
) regulated under IC 8; and
(B) intended to be used and useful for the production,
transmission, delivery, or furnishing of heat, light, water,
telecommunications services, or power to the public.
No provision or stipulation in the contract of the owner and principal
contractor that no lien shall attach to the real estate, building, structure
or any other improvement of the owner shall be valid against
subcontractors, mechanics, journeymen, laborers or persons
performing labor upon or furnishing materials or machinery for such
property or improvement of the owner, unless the contract containing
such provision or stipulation shall be in writing, and shall contain
specific reference, by legal description of the real estate to be
improved and shall be acknowledged as provided in case of deeds and
filed and recorded in the recorder's office of the county in which such
real estate, building, structure or other improvement is situated not
more than five (5) days after the date of execution of such contract.
The contract herein provided for shall be without effect upon labor,
material or machinery supplied prior to the time of the filing with the
recorder of said contract. The recorder shall record such contract at
length in the order of time of its reception in books provided by him
for that purpose, and the recorder shall index the same in the name of
the contractor and in the name of the owner, in books kept for that
purpose, and said recorder shall receive therefor a fee such as is
provided for the recording of deeds and mortgages in his office.
thereafter, except the liens of other mechanics and materialmen, as to
which there shall be no priority.
(c) The mortgage of a lender has priority over all liens under this
chapter recorded after the date the mortgage was recorded to the extent
of the funds actually owed to the lender for the specific project to
which the lien rights relate. This subsection does not apply to a lien
that relates to a construction contract for the development,
construction, alteration, or repair of the following:
(1) A Class 2 structure (as defined in
IC 22-12-1-5
) or an
improvement on the same real estate auxiliary to a Class 2
structure (as defined in
IC 22-12-1-5
).
(2) Property that is:
(A) owned, operated, managed, or controlled by a public
utility (as defined in
IC 8-1-2-1
), municipally owned utility
(as defined in
IC 8-1-2-1
), joint agency (as defined in
IC 8-1-2.2-2
), rural electric membership corporation formed
under
IC 8-1-13-4
, rural telephone cooperative corporation
formed under
IC 8-1-17
, or not-for-profit utility (as defined
in
IC 8-1-2-125
) regulated under IC 8; and
(B) intended to be used and useful for the production,
transmission, delivery, or furnishing of heat, light, water,
telecommunications services, or power to the public.
SOURCE: IC 32-8-3-16; (02)IN1283.1.3. -->
SECTION 3.
IC 32-8-3-16
, AS ADDED BY P.L.53-1999,
SECTION 4, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2002]: Sec. 16. (a) This section applies to a
construction contract for the construction, alteration, or repair of a
building or structure other than the following:
(1) A Class 2 structure (as defined in
IC 22-12-1-5
) or an
improvement on the same real estate auxiliary to a Class 2
structure (as defined in
IC 22-12-1-5
).
(2) Property that is:
(A) owned, operated, managed, or controlled by a public
utility (as defined in
IC 8-1-2-1
), municipally owned utility
(as defined in
IC 8-1-2-1
), joint agency (as defined in
IC 8-1-2.2-2
), rural electric membership corporation formed
under
IC 8-1-13-4
, rural telephone cooperative corporation
formed under
IC 8-1-17
, or not-for-profit utility (as defined
in
IC 8-1-2-125
) regulated under IC 8; and
(B) intended to be used and useful for the production,
transmission, delivery, or furnishing of heat, light, water,
telecommunications services, or power to the public.
(b) A provision in a contract for the improvement of real estate in
Indiana is void if the provision requires a person described in section
1 of this chapter who furnishes labor, materials, or machinery to waive
a right to a lien against real estate or to a claim against a payment bond
before the person is paid for the labor or materials furnished.
(c) A provision in a contract for the improvement of real estate in
Indiana under which one (1) or more persons agree not to file a notice
of intention to hold a lien is void.
SOURCE: IC 32-8-3-18; (02)IN1283.1.4. -->
SECTION 4.
IC 32-8-3-18
, AS ADDED BY P.L.53-1999,
SECTION 6, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2002]: Sec. 18. (a) This section applies to a
provider of labor, materials, or equipment under a contract for the
improvement of real estate that conditions the right of the provider to
receive payment on the obligor's receipt of payment from a third
person with whom the provider does not have a contractual
relationship.
(b) This section does not apply to a construction contract for the
construction, alteration, or repair of the following:
(1) A Class 2 structure (as defined in
IC 22-12-1-5
) or an
improvement on the same real estate auxiliary to a Class 2
structure (as defined in
IC 22-12-1-5
).
(2) Property that is:
(A) owned, operated, managed, or controlled by a public
utility (as defined in
IC 8-1-2-1
), municipally owned utility
(as defined in
IC 8-1-2-1
), joint agency (as defined in
IC 8-1-2.2-2
), rural electric membership corporation formed
under
IC 8-1-13-4
, rural telephone cooperative corporation
formed under
IC 8-1-17
, or not-for-profit utility (as defined
in
IC 8-1-2-125
) regulated under IC 8; and
(B) intended to be used and useful for the production,
transmission, delivery, or furnishing of heat, light, water,
telecommunications services, or power to the public.
(c) An obligor's receipt of payment from a third person shall not be
a condition precedent to, or in any way limit, or be a defense to the
provider's right to record or foreclose a lien against the real estate that
was improved by the provider's labor, material, or equipment.
(Reference is to SB 34 as introduced.)
and when so amended that said bill be reassigned to the Senate Committee on Judiciary.