SB 202-1_ Filed 04/03/2003, 11:48 Lawson L
Text Box
PREVAILED Roll Call No. _______
FAILED Ayes _______
WITHDRAWN Noes _______
RULED OUT OF ORDER
[
HOUSE MOTION ____
]
MR. SPEAKER:
I move that Engrossed Senate Bill 202 be amended to read as follows:
SOURCE: Page 1, line 1; (03)MO020201.1. -->
Page 1, between the enacting clause and line 1, begin a new
paragraph and insert:
SOURCE: IC 32-28-3-0.5; (03)MO020201.1. -->
"SECTION 1.
IC 32-28-3-0.5
IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2003]: Sec. 0.5. As used in this chapter,
"fringe benefits and withholdings" means compensation due an
employee employed in the construction trades under a written
contract for benefits in addition to wages, including:
(1) holiday pay;
(2) time off for:
(A) sickness or injury; or
(B) personal reasons or vacation;
(3) bonus pay;
(4) authorized expenses incurred during the course of
employment; and
(5) contributions due to or on behalf of an employee.
SOURCE: IC 32-28-3-1; (03)MO020201.2. -->
SECTION 2.
IC 32-28-3-1
, AS ADDED BY P.L.101-2002,
SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: 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:
(1) house, mill, manufactory, or other building, bridge, reservoir,
system of waterworks, or other structure, sidewalk, walk, stile,
well, drain, drainage ditch, sewer, cistern, or earth:
(A) that the person erected, altered, repaired, moved, or
removed; or
(B) for which the person furnished materials or machinery of
any description; and
(2) on the interest of the owner of the lot or parcel of land:
(A) on which the structure or improvement stands; or
(B) with which the structure or improvement is connected;
to the extent of the value of any labor done, including fringe benefits
and withholdings, or the material furnished, or both, including any use
of the leased equipment and tools.
(c) All claims for wages, fringe benefits and withholdings, or both
wages and fringe benefits and withholdings of mechanics and
laborers employed in or about a shop, mill, wareroom, storeroom,
manufactory or structure, bridge, reservoir, system of waterworks or
other structure, sidewalk, walk, stile, well, drain, drainage ditch,
cistern, or any other earth moving operation shall be a lien on all the:
(1) machinery;
(2) tools;
(3) stock;
(4) material; or
(5) finished or unfinished work;
located in or about the 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.
(d) If the person, firm, limited liability company, or corporation
described in subsection (a) is in failing circumstances, the claims
described in this section shall be preferred debts whether a claim or
notice of lien has been filed.
(e) Subject to subsection (f), a contract for the construction,
alteration, or repair of:
(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
); or
(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
;
(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;
may include a provision or stipulation in the contract of the owner and
principal contractor that a lien may not attach to the real estate,
building, structure or any other improvement of the owner.
(f) A contract containing a provision or stipulation described in
subsection (e) must meet the requirements of this subsection to be valid
against subcontractors, mechanics, journeymen, laborers, or persons
performing labor upon or furnishing materials or machinery for the
property or improvement of the owner. The contract must:
(1) be in writing;
(2) contain specific reference by legal description of the real
estate to be improved;
(3) be acknowledged as provided in the case of deeds; and
(4) be filed and recorded in the recorder's office of the county in
which the real estate, building, structure, or other improvement is
situated not more than five (5) days after 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.
SOURCE: IC 32-28-3-3; (03)MO020201.3. -->
SECTION 3.
IC 32-28-3-3
, AS ADDED BY P.L.2-2002, SECTION
13, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2003]: Sec. 3. (a) Except as provided in subsection (b), a person who
wishes to acquire a lien upon property, whether the claim is due or not,
must file in duplicate a sworn statement and notice of the person's
intention to hold a lien upon the property for the amount of the claim:
(1) in the recorder's office of the county; and
(2) not later than ninety (90) days after performing labor or
furnishing materials or machinery described in section 1 of this
chapter.
The statement and notice of intention to hold a lien may be verified and
filed on behalf of a client by an attorney registered with the clerk of the
supreme court as an attorney in good standing under the requirements
of the supreme court.
(b) This subsection applies to a person that performs labor or
furnishes materials or machinery described in section 1 of this chapter
related to 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
). A person who wishes to acquire a lien upon
property, whether the claim is due or not, must file in duplicate a sworn
statement and notice of the person's intention to hold a lien upon the
property for the amount of the claim:
(1) in the recorder's office of the county; and
(2) not later than sixty (60) days after performing labor or
furnishing materials or machinery described in section 1 of this
chapter.
The statement and notice of intention to hold a lien may be verified and
filed on behalf of a client by an attorney registered with the clerk of the
supreme court as an attorney in good standing under the requirements
of the supreme court.
(c) A statement and notice of intention to hold a lien filed under this
section must specifically set forth:
(1) the amount claimed, including any fringe benefits and
withholdings;
(2) the name and address of the claimant;
(3) the owner's:
(A) name; and
(B) latest address as shown on the property tax records of the
county; and
(4) the:
(A) legal description; and
(B) street and number, if any;
of the lot or land on which the house, mill, manufactory or other
buildings, bridge, reservoir, system of waterworks, or other
structure may stand or be connected with or to which it may be
removed.
The name of the owner and legal description of the lot or land will be
sufficient if they are substantially as set forth in the latest entry in the
transfer books described in
IC 6-1.1-5-4
of the county auditor or, if
IC 6-1.1-5-9
applies, the transfer books of the township assessor at the
time of filing of the notice of intention to hold a lien.
(d) The recorder shall:
(1) mail, first class, one (1) of the duplicates of the statement and
notice of intention to hold a lien to the owner named in the
statement and notice not later than three (3) business days after
recordation;
(2) post records as to the date of the mailing; and
(3) collect a fee of two dollars ($2) from the lien claimant for each
statement and notice that is mailed.
The statement and notice shall be addressed to the latest address of the
owner as specifically set out in the sworn statement and notice of the
person intending to hold a lien upon the property.
SOURCE: IC 32-28-3-9; (03)MO020201.4. -->
SECTION 4.
IC 32-28-3-9
, AS ADDED BY P.L.2-2002, SECTION
13, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2003]: Sec. 9. (a) This section applies to a:
(1) subcontractor;
(2) lessor leasing construction and other equipment and tools,
regardless of whether an operator is also provided by the lessor;
(3) journeyman; or
(4) laborer;
employed or leasing any equipment or tools used by the lessee in
erecting, altering, repairing, or removing any house, mill, manufactory
or other building, or bridge, reservoir, system of waterworks, or other
structure or earth moving, or in furnishing any material or machinery
for these activities.
(b) Except as provided in section 12 of this chapter, in order to
acquire and hold a lien, a person described in subsection (a) must give
to the property owner, or if the property owner is absent, to the property
owner's agent, written notice particularly setting forth the amount of the
person's claim
(including any fringe benefits and withholdings) and
services rendered for which:
(1) the person's employer or lessee is indebted to the person; and
(2) the person holds the property owner responsible.
(c) Subject to subsections (d) and (e), the property owner is liable
for the person's claim.
(d) The property owner is liable to a person described in subsection
(a) for not more than the amount that is due and may later become due
from the owner to the employer or lessee.
(e) A person described in subsection (a) may recover the amount of
the person's claim if, after the amounts of other claims that have
priority are subtracted from the amount due from the property owner
to the employer or lessee, the remainder of the amount due from the
property owner to the employer or lessee is sufficient to pay the amount
of the person's claim.
(f) This section applies to a person described in subsection (a) who
gives written notice, to the property owner or, if the property owner is
absent, to the owner's agent, before labor is performed or materials or
machinery is furnished. The notice must particularly set forth the
amount of:
(1) labor the person has contracted to perform; or
(2) materials or machinery the person has contracted to furnish;
for the employer or lessee in erecting, altering, repairing, or removing
any of the buildings or other structures described in subsection (a). A
person described in subsection (a) has the same rights and remedies
against the property owner for the amount of the labor performed by the
person or materials or machinery furnished by the person after the
notice is given, as are provided in this chapter for persons who serve
notice after performing the labor or furnishing the materials or
machinery.
(g) If an action is brought against a property owner under this
section, all subcontractors, equipment lessors leasing equipment,
journeymen, and laborers who have:
(1) performed labor or furnished materials or machinery; and
(2) given notice under this section;
may become parties to the action. If, upon final judgment against the
property owner the amount recovered and collected is not sufficient to
pay the claimants in full, the amount recovered and collected shall be
divided among the claimants pro rata.
SOURCE: IC 32-28-3-12; (03)MO020201.5. -->
SECTION 5.
IC 32-28-3-12
, AS ADDED BY P.L.2-2002,
SECTION 13, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 12. (a) This section applies to a person who:
(1) performs work or labor such as:
(A) grading;
(B) building embankments;
(C) making excavations for track;
(D) building:
(i) bridges;
(ii) trestlework;
(iii) works of masonry;
(iv) fencing; or
(v) other structures; or
(E) performs work of any kind;
in the construction or repair of a railroad or part of a railroad in
Indiana; or
(2) furnishes material for:
(A) a bridge, trestlework, work of masonry, fence, or other
structure; or
(B) use in the construction or repair of a railroad or part of a
railroad;
in Indiana.
(b) The work, labor, or material described in subsection (a) may be
provided under a contract:
(1) with the railroad corporation building, repairing, or owning
the railroad; or
(2) with a person, corporation, or company engaged as:
(A) lessee;
(B) contractor;
(C) subcontractor; or
(D) agent;
of the railroad corporation in the work of constructing or repairing
the railroad or part of the railroad in Indiana.
(c) A person to whom this section applies may have a lien to the
extent of the work or labor performed, or the value of any fringe
benefits and withholdings due, material furnished, or both, a
combination of some or all of the amounts described in this
subsection, upon:
(1) the right-of-way and franchises of the railroad corporation;
and
(2) the works and structures as set forth in this section that may be
upon the right-of-way and franchise of the railroad corporation;
within the limits of the county in which the work or labor may be
performed or the material may be furnished.
(d) A person performing work or labor or furnishing materials under
a contract described in subsection (b)(2) is not required to give notice
to the railroad corporation under section 9 of this chapter in order to
acquire and hold a lien for labor performed, including any fringe
benefits and withholdings due, or material furnished under the
provisions of this section. The performance of the labor or the
furnishing of the materials is sufficient notice to the railroad
corporation. A lien that is acquired as set forth in this subsection shall
be enforced as other mechanic's liens are enforced in Indiana.
(e) A person who, in doing business with a railroad company, has
constructed a building or other improvement on a portion of the
railroad right-of-way adjacent to the person's place of business may
have a lien to the extent of the fair market value of the improvement on
that portion of the right-of-way. The lien may be acquired and
enforced:
(1) upon abandonment of the right-of-way by the railroad
company; and
(2) against the successors in title of the railroad company.
This subsection does not apply to property that is subject to a written
agreement providing for the disposition of improvements upon
abandonment. Liens acquired under this subsection shall be enforced
as other mechanic's liens are enforced in Indiana.
SOURCE: IC 32-28-3-14; (03)MO020201.6. -->
SECTION 6.
IC 32-28-3-14
, AS ADDED BY P.L.2-2002,
SECTION 13, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 14. (a) Except as provided in subsection (b), in an
action to enforce a lien under this chapter, the plaintiff or lienholder
may recover reasonable attorney's fees as a part of the judgment.
(b) A plaintiff may not recover attorney's fees as part of the
judgment against a property owner in an action in which the contract
consideration for the labor (including any fringe benefits and
withholdings), material, or machinery has been paid by the property
owner or party for whom the improvement has been constructed.
SOURCE: IC 32-28-3-15; (03)MO020201.7. -->
SECTION 7.
IC 32-28-3-15
, AS ADDED BY P.L.2-2002,
SECTION 13, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 15. A person who knowingly or intentionally:
(1) performs labor, supplies services, or furnishes material or
machinery in the:
(A) construction;
(B) repair; or
(C) remodeling;
of a building, structure, or other work;
(2) accepts payment for the labor, services, material, or machinery
furnished and supplied;
(3) at the time of receiving the payment, knows that the person is
indebted to another for:
(A) labor, including fringe benefits and withholdings, and
the cost of renting or leasing construction and other equipment
and tools, whether or not an operator is also provided by the
lessor;
(B) services;
(C) material; or
(D) machinery;
used or employed in the construction, repair, or remodeling;
(4) fails:
(A) at the time of receiving the payment; and
(B) with intent to defraud;
to notify in writing the person from whom the payment was
received of the existence of the outstanding indebtedness; and
(5) causes the person from whom the payment was received to
suffer a loss by failing under subdivision (4) to notify the person
of the existence of the outstanding indebtedness;
commits a Class D felony.
SOURCE: IC 32-28-3-16; (03)MO020201.8. -->
SECTION 8.
IC 32-28-3-16
, AS ADDED BY P.L.101-2002,
SECTION 7, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: 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, including any fringe benefits
and withholdings due, 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.".
Renumber all SECTIONS consecutively.
(Reference is to ESB 202 as printed April 2, 2003.)
________________________________________
MO020201/DI 107 2003