Printable Format60-1103. Liens of suppliers and subcontractors; procedure, recording and notice; owner's liability; notice of extension. (a) Procedure. Any supplier, subcontractor or other person furnishing labor, equipment, material or supplies, used or consumed at the site of the property subject to the lien, under an agreement with the contractor, subcontractor or owner contractor may obtain a lien for the amount due in the same manner and to the same extent as the original contractor except that:
(1) The lien statement must state the name of the contractor and be filed within three months after the date supplies, material or equipment was last furnished or labor performed by the claimant;
(2) if a warning statement is required to be given pursuant to K.S.A. 60-1103a, and amendments thereto, there shall be attached to the lien statement the affidavit of the supplier or subcontractor that such warning statement was properly given; and
(3) a notice of intent to perform, if required pursuant to K.S.A. 60-1103b, and amendments thereto, must have been filed as provided by that section.
(b) Owner contractor is defined as any person, firm or corporation who:
(1) Is the fee title owner of the real estate subject to the lien; and
(2) enters into contracts with more than one person, firm or corporation for labor, equipment, material or supplies used or consumed for the improvement of such real property.
(c) Recording and notice. When a lien is filed pursuant to this section, the clerk of the district court shall enter the filing in the general index. The claimant shall (1) cause a copy of the lien statement to be served personally upon any one owner, any holder of a recorded equitable interest and any party obligated to pay the lien in the manner provided by K.S.A. 60-304, and amendments thereto, for the service of summons within the state, or by K.S.A. 60-308, and amendments thereto, for service outside of the state, (2) mail a copy of the lien statement to any one owner of the property, any holder of a recorded equitable interest and to any party obligated to pay the same by restricted mail or (3) if the address of any one owner or such party is unknown and cannot be ascertained with reasonable diligence, post a copy of the lien statement in a conspicuous place on the premises. The provisions of this subsection requiring that the claimant serve a copy of the lien statement shall be deemed to have been complied with, if it is proven that the person to be served actually received a copy of the lien statement. No action to foreclose any lien may proceed or be entered against residential real property in this state unless the holder of a recorded equitable interest was served with notice in accordance with the provisions of this subsection.
(d) Rights and liability of owner. The owner of the real property shall not become liable for a greater amount than the owner has contracted to pay the original contractor, except for any payments to the contractor made:
(1) Prior to the expiration of the three-month period for filing lien claims, if no warning statement is required by K.S.A. 60-1103a, and amendments thereto; or
(2) subsequent to the date the owner received the warning statement, if a warning statement is required by K.S.A. 60-1103a, and amendments thereto.
The owner may discharge any lien filed under this section which the contractor fails to discharge and credit such payment against the amount due the contractor.
(e) Notwithstanding subsection (a)(1), a lien for the furnishing of labor, equipment, materials or supplies on property other than residential property may be claimed pursuant to this section, and amendments thereto, within five months only if the claimant has filed a notice of extension within three months since last furnishing labor, equipment, materials or supplies to the job site. Such notice shall be filed in the office of the clerk of the district court of the county where such property is located and shall be mailed by certified and regular mail to the general contractor or construction manager and a copy to the owner by regular mail, if known. The notice of extension shall be deemed sufficient if in substantial compliance with the form set forth by the judicial council.
History: L. 1963, ch. 303, 60-1103; L. 1967, ch. 325, § 1; L. 1978, ch. 230, § 3; L. 1982, ch. 248, § 2; L. 1986, ch. 217, § 1; L. 1992, ch. 47, § 3; L. 2000, ch. 175, § 7; L. 2003, ch. 45, § 2; L. 2005, ch. 101, § 14; July 1.
Source or prior law:
L. 1862, ch. 137, § 19; G.S. 1868, ch. 80, § 632; L. 1870, ch. 87, § 23; L. 1871, ch. 97, § 2; L. 1872, ch. 141, § 2; L. 1889, ch. 168, § 3; L. 1909, ch. 182, § 651; L. 1919, ch. 235, § 2; R.S. 1923, 60-1403; L. 1957, ch. 325, § 1.
Cross References to Related Sections:
Cross claims against co-parties, see 60-213(g).
Law Review and Bar Journal References:
Operation and effect of recording statutes, 17 W.L.J. 615, 635 (1978).
"Commercial Transactions Under the New Bankruptcy Act," Paul B. Rasor, 48 J.B.A.K. 199, 210 (1979).
"Kansas Oil and Gas Lien Law," David E. Pierce, 56 J.K.B.A. No. 7, 8, 14 (1987).
"Kansas Mechanics' Lien Laws: Filing-Enforcing-Defending," Mert F. Buckley, 57 J.K.B.A. No. 5, 27, 29, 30, 31 (1988).
"Debtor-Creditor: When Is an Improvement Not an Improvement? Interpretation of the Kansas Mechanic's Lien Statute [Haz-Mat Response, Inc. v. Certified Waste Services Ltd., 910 P.2d 839 (Kan. 1996)]," Juliann Johnson, 36 W.L.J. 499 (1997).
"Testing the Waters of Kansas Mechanic's Liens," Eric G. Kraft, 74 J.K.B.A. No. 5, 16 (2005).
Attorney General's Opinions:
Liens of subcontractors; limitations with respect to residential property. 85-124.
CASE ANNOTATIONS
Prior law cases, see G.S. 1949, 60-1403 and the 1961 Supp. thereto.
1. Subcontractor withheld from owner notice of lien filing for 47 days to avoid embarrassment to general contractor; held unreasonable delay. Don Conroy Contractor, Inc. v. Jensen, 192 Kan. 300, 302, 387 P.2d 187.
2. Mentioned; general contractor's statutory bond covered claim for materials furnished to subcontractor. Leidigh & Havens Lumber Co. v. Bollinger, 193 Kan. 600, 602, 604, 396 P.2d 320.
3. Discussed; obligation of statutory contract bonds under K.S.A. 68-410 are determined by provisions of bond. Thompson Transport Co. v. Middlestates Construction Co., 194 Kan. 52, 57, 58, 397 P.2d 368.
4. Verification must state authority of person signing if other than claimant. Ekstrom United Supply Co. v. Ash Grove Lime & Portland Cement Company, 194 Kan. 634, 400 P.2d 707.
5. "Subcontractor-contractor-owner" relationship established; lien correctly filed. Toler v. Satterthwaite, 200 Kan. 103, 105, 106, 108, 109, 111, 434 P.2d 814.
6. Verification essential to creation of lien; acknowledgment does not constitute "verification"; amendment of statement after expiration of statutory period not permitted. D. J. Fair Lumber Co. v. Karlin, 199 Kan. 366, 367, 368, 369, 372, 430 P.2d 222.
7. Notice provision herein applied to oil and gas lien law; prior law discussed. Mountain Iron & Supply Co. v. Branum, 200 Kan. 38, 39, 40, 41, 44, 45, 47, 48, 434 P.2d 1015.
8. Cited; promise to pay additional compensation to foremen not for "labor" and not lienable hereunder. Goodyear Tire and Rubber Company v. Jones, 317 F. Supp. 1285, 1286, 1288, 1292 (1968), 433 F.2d 629 (1970).
9. New contract may extend time for filing mechanic's lien. Berthot v. Stroble, 208 Kan. 839, 494 P.2d 1133.
10. Construed; question concerned interpretation of notice requirements established by statute. Rounsavell v. Tipton, 209 Kan. 366, 367, 497 P.2d 108.
11. Word "owner" defined; includes owners of equitable interests. Schwaller Lumber Co., Inc. v. Watson, 211 Kan. 141, 142, 143, 144, 505 P.2d 640.
12. Statutory notice of lien did not comply with statute against certain owners of property. Schwaller Lumber Co., Inc., v. Watson, 211 Kan. 141, 142, 143, 144, 505 P.2d 640.
13. Action to determine amount of contractor's judgment lien; trial court erred in deducting amount paid to subcontractor by contractor's surety. Dick v. LaVilla Inns, Inc., 212 Kan. 101, 102, 510 P.2d 188.
14. Action to foreclose mechanics' lien; test to determine when work completed to preserve lien discussed. Stickney v. Murdock Steel & Engineering, Inc., 212 Kan. 653, 655, 657, 512 P.2d 339.
15. Mentioned; subcontractor may obtain lien in same manner as original contractor; certain conditions discussed. Sutherland Lumber Co. v. Due, 212 Kan. 658, 659, 512 P.2d 525.
16. Personal service held properly given. Geis Irrigation Co. v. Satanta Feed Yards, Inc., 214 Kan. 373, 379, 521 P.2d 272.
17. Applied in conjunction with K.S.A. 60-1101 in allowing costs of transportation to subcontractors. Geis Irrigation Co. v. Satanta Feed Yards, Inc., 214 Kan. 373, 378, 521 P.2d 272.
18. Discharge in bankruptcy of principal contractor no ban to enforcement of subcontractor's lien rights hereunder; section complied with. Geis Irrigation Co. v. Satanta Feed Yards, Inc., 214 Kan. 373, 376, 378, 379, 521 P.2d 272.
19. Contractor held general contractor not subcontractor although payments channeled through another contractor; service of lien statement not required. Stewart v. Cunningham, 219 Kan. 374, 376, 378, 548 P.2d 740.
20. Lien held not timely filed; personal judgment against lessee improperly rendered. Holiday Development Co. v. Tobin Construction Co., 219 Kan. 701, 704, 705, 549 P.2d 1376.
21. Court did not err in holding that homeowner received actual notice of mechanic's lien and that the lien statement was reasonably itemized. Kopp's Rug Co. v. Talbot, 5 Kan. App. 2d 565, 566, 568, 570, 620 P.2d 1167.
22. Lien statement should name as owner the owner who contracted for materials. Construction Materials, Inc. v. Becker, 8 Kan. App. 2d 394, 659 P.2d 243 (1983).
23. Where claimant verified lien statement not as individual but as president of lienholder corporation "dba," verification sufficient; required contents of statement discussed. M & B Investment, Inc. v. Smith, 9 Kan. App. 2d 31, 35, 670 P.2d 534 (1983).
24. Purpose of verification considered; validity of lien statement, both body and verification, ascertained from its four corners. Trane Co. v. Bakkalapulo, 234 Kan. 348, 350, 352, 672 P.2d 586 (1983).
25. Statement may be served on "any one owner" as opposed to "the owner" in prior statute. Scott v. Strickland, 10 Kan. App. 2d 14, 22, 691 P.2d 45 (1984).
26. Mistaken identity as subcontractor and not "other person" no bar to collect bond under K.S.A. 60-1110. Bob Eldridge Constr. Co. v. Pioneer Materials, Inc., 235 Kan. 599, 605, 684 P.2d 355 (1984).
27. Where record owner makes improvements with materials furnished under contract and meanwhile conveys to third parties, supplier may perfect lien hereunder or K.S.A. 60-1101. Star Lumber & Supply Co. v. Capital Constr. Co., 238 Kan. 743, 750, 715 P.2d 11 (1986).
28. K.S.A. 60-1105(a) as statute of duration not limitation requiring action within one year to perfect lien determined. In re Birdview Satellite Communications, Inc., 90 B.R. 465, 468 (1988).
29. Statute, in conjunction with K.S.A. 60-1111, does not preclude suppliers to sub-subcontractors from suing on the bond. Wichita Sheet Metal Supply, Inc. v. Dahlstrom & Ferrell, 14 Kan. App. 2d 111, 113, 114, 783 P.2d 353 (1989).
30. Generally, rules applicable to mechanics' liens are analogous to public works bonds. Wichita Sheet Metal Supply, Inc. v. Dahlstrom & Ferrell Constr. Co., 246 Kan. 557, 559, 561, 792 P.2d 1043 (1990).
31. Legislature intended subcontractors' mechanics' liens to attach at the time the general contractor began work or construction. J. Walters Constr. Co. v. Greystone South Partnership, 15 Kan. App. 2d 689, 703, 817 P.2d 201 (1991).
32. Statutory time requirements for filing mechanic's lien statement examined. Bethlehem Steel Corp. v. National Co-op Refinery Ass'n, 19 Kan. App. 2d 330, 331, 871 P.2d 1282 (1994).
33. Mechanics' liens for services and materials used in removal of hazardous waste invalid where no improvement of real property. Haz-Mat Response, Inc. v. Certified Waste Services, Ltd., 21 Kan. App. 2d 56, 59, 65, 896 P.2d 393 (1995).
34. No requirement to file notice of intent to perform if lien statement is properly filed prior to recording of deed passing title; service of lien statement may be on any owner. Owen Lumber Co. v. Arthur Chartrand, 27 Kan. App. 2d 72, 998 P.2d 509 (2000).
35. Section requires filing notice of intent to perform to attach lien to property only after title passes; service on any owner satisfies notice requirements (lien filed before passage of title). Owen Lumber Co. v. Chartrand, 270 Kan. 215, 14 P.3d 395 (2000).
36. Contractor may not perform some omitted part of work and thereby extend period for filing of mechanics lien. Creme de la Creme, (Kansas) Inc., v. R&R Int'l, Inc., 32 Kan. App. 2d 490, 85 P.3d 205 (2004).
37. Mechanic's lien filed by subcontractor must name contractor. Tradesman Int'l, Inc. v. Wal-Mart Real Estate Business Trust, 35 Kan. App. 2d 146, 129 P.3d 102 (2006).
38. Theory of presumptive receipt of legal service when summons or writ deposited in post office inapplicable to subsection (c). Owen Lumber Co. v. Chartrand 283 Kan. 911, 919, 156 P.3d 1109 (2007).
39. Cited in dissenting opinion, which disagreed that K.S.A. 60-1102 lien was not perfected. Buchanan v. Overley, 39 Kan. App. 2d 171, 179, 178 P.3d 53 (2008).
40. Cited; mechanic's lien of material supplier fails; failed to state general contractor's name. Alliance Steel, Inc. v. Piland, 39 Kan. App. 2d 972, 976-979, 984, 985, 187 P.3d 111 (2008).
41. Lien statement that fails to name the proper contractor is vitally defective. National Restoration Co. v. Merit General Contractors, 41 Kan. App. 2d 1010, 208 P.3d 755 (2009).
42. A supplier hired by a second-tier subcontractor has no rights under the Kansas mechanics' lien statute. Bowen Eng'g, Corp. v Pac. Indem. Co., 83 F. Supp. 3d 1185, 1188 (D. Kan. 2015).