Bill Text: MI HB5830 | 2009-2010 | 95th Legislature | Engrossed
Bill Title: Liens; construction; homeowner construction lien recovery fund; abolish, and repeal provisions relating to administration and funding of and disbursements from the fund. Amends title & secs. 104, 106 & 118 of 1980 PA 497 (MCL 570.1104 et seq.); adds sec. 118a & repeals secs. 201 - 207, 303 & 304 of 1980 PA 496 (MCL 570.1201 et seq.). TIE BAR WITH: HB 5831'10, HB 5832'10, HB 5833'10, HB 5834'10, HB 5835'10
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2010-08-24 - Assigned Pa 147'10 With Immediate Effect [HB5830 Detail]
Download: Michigan-2009-HB5830-Engrossed.html
HB-5830, As Passed House, June 16, 2010
SUBSTITUTE FOR
HOUSE BILL NO. 5830
A bill to amend 1980 PA 497, entitled
"Construction lien act,"
by amending the title and sections 104, 106, and 118 (MCL 570.1104,
570.1106, and 570.1118), the title and sections 104 and 106 as
amended by 2006 PA 497 and section 118 as amended by 1982 PA 17,
and by adding section 118a; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An act to establish, protect, and enforce by lien the rights
of persons performing labor or providing material or equipment for
the
improvement of real property; to provide for certain defenses
with
respect thereto; to establish the homeowner construction lien
recovery
fund; to provide for the powers and duties of certain
state
officers and agencies; to provide for the assessment of
certain
occupations to construction
liens; to provide remedies and
prescribe penalties; and to repeal acts and parts of acts.
Sec. 104. (1) "Court" means the circuit court in which an
action to enforce a construction lien through foreclosure is
pending.
(2)
"Department" means the department of labor and economic
growth.
(2) (3)
"Designee" means the
person named by an owner or
lessee to receive, on behalf of the owner or lessee, all notices or
other
instruments whose furnishing is required by to be furnished
under this act. The owner or lessee may name himself or herself as
designee. The owner or lessee may not name the contractor as
designee. However, a contractor who is providing only architectural
or engineering services may be named as designee.
(3) (4)
"Fringe benefits and
withholdings" means compensation
due an employee pursuant to a written contract or written policy
for holiday, time off for sickness or injury, time off for personal
reasons or vacation, bonuses, authorized expenses incurred during
the course of employment, and any other contributions made to or on
behalf of an employee.
(5)
"Fund" means the homeowner construction lien recovery fund
created
in section 201.
(4) (6)
"General contractor"
means a contractor who contracts
with an owner or lessee to provide, directly or indirectly through
contracts with subcontractors, suppliers, or laborers,
substantially all of the improvements to the property described in
the notice of commencement.
(5) (7)
"Improvement" means the
result of labor or material
provided by a contractor, subcontractor, supplier, or laborer,
including, but not limited to, surveying, engineering and
architectural planning, construction management, clearing,
demolishing, excavating, filling, building, erecting, constructing,
altering, repairing, ornamenting, landscaping, paving, leasing
equipment, or installing or affixing a fixture or material,
pursuant to a contract.
(6) (8)
"Laborer" means an
individual who, pursuant to a
contract with a contractor or subcontractor, provides an
improvement to real property through the individual's personal
labor.
Sec. 106. (1) "Person" means an individual, corporation,
partnership, sole proprietorship, association, other legal entity,
or any combination thereof.
(2) "Project" means the aggregate of improvements contracted
for by the contracting owner.
(3)
"Qualifying officer" means an individual designated as a
qualifying
officer of the contractor or subcontractor in the
records
of the department under article 24 of the occupational
code,
1980 PA 299, MCL 339.2401 to 339.2412.
(3) (4)
"Residential structure"
means an individual
residential condominium unit or a residential building containing
not more than 2 residential units, the land on which it is or will
be located, and all appurtenances, in which the owner or lessee
contracting for the improvement is residing or will reside upon
completion of the improvement.
(4) (5)
"Subcontractor" means a
person, other than a laborer
or supplier, who pursuant to a contract between himself or herself
and a person other than the owner or lessee performs any part of a
contractor's contract for an improvement.
(5) (6)
"Supplier" means a person
who, pursuant to a contract
with a contractor or a subcontractor, leases, rents, or in any
other manner provides material or equipment that is used in the
improvement of real property.
(6) (7)
"Wages" means all
earnings of an employee, whether
determined on the basis of time, task, piece, commission, or other
method of calculation, for labor or services, except fringe
benefits and withholdings.
Sec. 118. (1) An action to enforce a construction lien through
foreclosure shall be brought in the circuit court for the county
where the real property described in the claim of lien is located.
If the real property is located in more than 1 county or judicial
circuit, the action may be brought in any of the counties where the
real property is located. An action to enforce a construction lien
through
foreclosure shall be is equitable in nature. A construction
lien also may be enforced by a cross-claim or counterclaim timely
filed in a pending action involving title to, or foreclosure of
mortgages or encumbrances on, real property.
(2)
In each an action in which enforcement of to enforce a
construction
lien through foreclosure, is sought, the court shall
examine
each claim and defense that is presented , and determine
the amount, if any, due to each lien claimant or to any mortgagee
or
holder of an encumbrance, and their respective priorities. The
court may allow reasonable attorneys' fees to a lien claimant who
is the prevailing party. The court also may allow reasonable
attorneys' fees to a prevailing defendant if the court determines
the lien claimant's action to enforce a construction lien under
this
section was vexatious. Attorneys' fees allowed under this
section
shall not be paid from the homeowner construction lien
recovery
fund created under part 2.
Sec. 118a. (1) A claim of construction lien does not attach to
a residential structure, to the extent payments have been made, if
the owner or lessee files an affidavit with the court stating that
the owner or lessee has paid the contractor for the improvement to
the residential structure according to the contract, indicating in
the affidavit the amount of the payment. The owner or lessee shall
attach to the affidavit copies of the contract, any change orders,
and any evidence of the payment that the owner or lessee has,
including, but not limited to, a canceled check or a credit card or
other receipt.
(2) If there is no written contract between the owner or
lessee and the contractor as required by section 114, the filing of
an affidavit under this section creates a rebuttable presumption
that the owner or lessee has paid the contractor for the
improvement. The presumption may be overcome only by a showing of
clear and convincing evidence to the contrary.
Enacting section 1. Sections 201 to 207, 303, and 304 of the
construction lien act, 1980 PA 497, MCL 570.1201 to 570.1207,
570.1303, and 570.1304, are repealed.
Enacting section 2. This amendatory act does not take effect
unless all of the following bills of the 95th Legislature are
enacted into law:
(a) Senate Bill No.____ (request no. 04360'09 d *) or House
Bill No. 5831.
(b) Senate Bill No.____ (request no. 04360'09 e *) or House
Bill No. 5832.
(c) Senate Bill No.____ (request no. 04360'09 f *) or House
Bill No. 5833.
(d) Senate Bill No.____ (request no. 04360'09 g *) or House
Bill No. 5834.
(e) Senate Bill No. ____ (request no. 04360'09 k *) or House
Bill No. 5835.
