Mr. President: Pursuant to Joint Rule 20, your Committee on Rules and
Legislative Procedure, to which was referred Engrossed House Bill 1283 because it
conflicts with SEA 57-2002 without properly recognizing the existence of SEA 57-
2002, has had Engrossed House Bill 1283 under consideration and begs leave to report
back to the Senate with the recommendation that Engrossed House Bill 1283 be
corrected as follows:
Page 6, after line 12, begin a new paragraph and insert:
"SECTION 5. IC 32-28-3-1, AS ADDED BY SEA 57-2002,
IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2002]: Sec. 1. (a) A contractor, a subcontractor, a mechanic,
a lessor leasing construction and other equipment and tools,
whether or not an operator is also provided by the lessor, a
journeyman, a laborer, or any other person performing labor or
furnishing materials or machinery, including the leasing of
equipment or tools, for:
(1) the erection, alteration, repair, or removal of:
(A) a house, mill, manufactory, or other building; or
(B) a bridge, reservoir, system of waterworks, or other
structure; or
(2) the construction, alteration, repair, or removal of a walk
or sidewalk located on the land or bordering the land, a
stile, a well, a drain, a drainage ditch, a sewer, or a cistern;
or
(3) any other earth moving operation;
may have a lien as set forth in this section.
(b) A person described in subsection (a) may have a lien
separately or jointly upon the:
the date of execution of the contract.
A contract containing a provision or stipulation described in
subsection (e) does not affect a lien for labor, material, or
machinery supplied before the filing of the contract with the
recorder.
(g) Upon the filing of a contract under subsection (f), the
recorder shall:
(1) record the contract at length in the order of the time it
was received in books provided by the recorder for that
purpose;
(2) index the contract in the name of the:
(A) contractor; and
(B) owner;
in books kept for that purpose; and
(3) collect a fee for recording the contract as is provided
for the recording of deeds and mortgages.
(h) A person, firm, partnership, limited liability company, or
corporation that sells or furnishes on credit any material, labor,
or machinery for the alteration or repair of an owner occupied
single or double family dwelling or the appurtenances or
additions to the dwelling to:
(1) a contractor, subcontractor, mechanic; or
(2) anyone other than the occupying owner or the owner's
legal representative;
must furnish to the occupying owner of the parcel of land where
the material, labor, or machinery is delivered a written notice of
the delivery or work and of the existence of lien rights not later
than thirty (30) days after the date of first delivery or labor
performed. The furnishing of the notice is a condition precedent
to the right of acquiring a lien upon the lot or parcel of land or
the improvement on the lot or parcel of land.
(i) A person, firm, partnership, limited liability company, or
corporation that sells or furnishes on credit material, labor, or
machinery for the original construction of a single or double
family dwelling for the intended occupancy of the owner upon
whose real estate the construction takes place to a contractor,
subcontractor, mechanic, or anyone other than the owner or the
owner's legal representatives must:
(1) furnish the owner of the real estate:
(A) as named in the latest entry in the transfer books
described in IC 6-1.1-5-4 of the county auditor; or
(B) if IC 6-1.1-5-9 applies, as named in the transfer
books of the township assessor;
with a written notice of the delivery or labor and the
existence of lien rights not later than sixty (60) days after
the date of the first delivery or labor performed; and
(2) file a copy of the written notice in the recorder's office
of the county not later than sixty (60) days after the date of
the first delivery or labor performed.
The furnishing and filing of the notice is a condition precedent
to the right of acquiring a lien upon the real estate or upon the
improvement constructed on the real estate.
(j) A lien for material or labor in original construction does
not attach to real estate purchased by an innocent purchaser for
value without notice of a single or double family dwelling for
occupancy by the purchaser unless notice of intention to hold
the lien is recorded under section 3 of this chapter before
recording the deed by which the purchaser takes title.
SECTION 6. IC 32-28-3-5, AS ADDED BY SEA 57-2002,
IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2002]: Sec. 5. (a) As used in this section, "lender" refers to:
(1) an individual;
(2) a supervised financial organization (as defined in
IC 24-4.5-1-301);
(3) an insurance company or a pension fund; or
(4) any other entity that has the authority to make loans.
(b) The recorder shall record the statement and notice of
intention to hold a lien when presented under section 3 of this
chapter in the miscellaneous record book. The recorder shall
charge a fee for recording the statement and notice in
accordance with IC 36-2-7-10. When the statement and notice
of intention to hold a lien is recorded, the lien is created. The
recorded lien relates back to the date the mechanic or other
person began to perform the labor or furnish the materials or
machinery. Except as provided in subsections (c) and (d), a lien
created under this chapter has priority over a lien created after
it.
(c) The lien of a mechanic or materialman does not have
priority over the lien of another mechanic or materialman.
(d) The mortgage of a lender has priority over all liens
created under this chapter that are 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).
(2) An improvement on the same real estate auxiliary to a
Class 2 structure (as defined in IC 22-12-1-5).
(3) Property that is:
(A) owned, operated, managed, or controlled by:
(i) a public utility (as defined in IC 8-1-2-1);
(ii) a municipally owned utility (as defined in
IC 8-1-2-1);
(iii) a joint agency (as defined in IC 8-1-2.2-2);
(iv) a rural electric membership corporation formed
under IC 8-1-13-4; or
(v) a rural telephone cooperative corporation
formed under IC 8-1-17; or
(vi) a 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.
SECTION 7. IC 32-28-3-16, AS ADDED BY SEA 57-2002,
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:
(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); or
(2) property that is:
(A) owned, operated, managed, or controlled by a
public utility (as defined in IC 8-1-2-1), a municipally
owned utility (as defined in IC 8-1-2-1), a joint agency
(as defined in IC 8-1-2.2-2), a rural electric membership
corporation formed under IC 8-1-13-4, rural telephone
cooperative corporation formed under IC 8-1-17, or
a 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:
(1) a lien against real estate; or
(2) 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.
SECTION 8. IC 32-28-3-18, AS ADDED BY SEA 57-2002,
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).
(2) An improvement on the same real estate auxiliary to a
Class 2 structure (as defined in IC 22-12-1-5).
(3) Property that is:
(A) owned, operated, managed, or controlled by a:
(i) public utility (as defined in IC 8-1-2-1);
(ii) municipally owned utility (as defined in
IC 8-1-2-1);
(iii) joint agency (as defined in IC 8-1-2.2-2);
(iv) rural electric membership corporation formed
under IC 8-1-13-4; or
(v) rural telephone cooperative corporation
formed under IC 8-1-17; or
(vi) 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
may not:
(1) be a condition precedent to;
(2) limit; or
(3) be a defense to;
the provider's right to record or foreclose a lien against the real