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 8  AN ACT concerning civil procedure; relating to design professional liens;
 9    amending K.S.A. 60-1102, 60-1103, 60-1103a, 60-1106 and 60-1110
10    and K.S.A. 1996 Supp. 60-1103b and repealing the existing sections.
11
12  Be it enacted by the Legislature of the State of Kansas:
13    New Section 1.  Any person furnishing or performing architectural,
14  professional engineering, land surveying or landscape architectural serv-
15  ices, hereafter called a design professional, for the improvement of real
16  property, under contract with the owner or with the trustee, agent or
17  spouse of the owner, shall have a lien upon the property for the services
18  furnished or performed, so long as the design professional was properly
19  licensed pursuant to chapter 74 of the Kansas Statutes Annotated, and
20  amendments thereto, at all such times. The lien shall be preferred to all
21  other liens or encumbrances which are subsequent to the commencement
22  of the furnishing or performing of such services relating to the property
23  subject to the lien. When two or more such contracts are entered into
24  applicable to the same improvement, the liens of all claimants shall be
25  similarly preferred to the date of the earliest unsatisfied lien of any of
26  them.
27    Section 2.  K.S.A. 60-1102 is hereby amended to read as follows: 60-
28  1102. (a) Filing. Any person claiming a lien on real property, under the
29  provisions of K.S.A. 60-1101 or section 1, and amendments thereto, shall
30  file with the clerk of the district court of the county in which property is
31  located, within four months after the date material, equipment or sup-
32  plies, used or consumed was last furnished or last labor or services per-
33  formed under the contract a verified statement showing:
34    (1)  The name of the owner,
35    (2)  the name and address sufficient for service of process of the claim-
36  ant,
37    (3)  a description of the real property,
38    (4)  a reasonably itemized statement and the amount of the claim, but
39  if the amount of the claim is evidenced by a written instrument, or if a
40  promissory note has been given for the same, a copy thereof may be
41  attached to the claim in lieu of the itemized statement.
42    (b)  Recording. Immediately upon the receipt of such statement the
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 2  -clerk of the court shall index the lien in the general index by party names
 3  and file number.
 4    Sec. 3.  K.S.A. 60-1103 is hereby amended to read as follows: 60-
 5  1103. (a) Procedure. Any supplier, subcontractor or other person furnish-
 6  ing labor, equipment, material or supplies, used or consumed at the site
 7  of the property subject to the lien or services relating to such property,
 8  under an agreement with the contractor, subcontractor, or owner con-
 9  tractor or design professional may obtain a lien for the amount due in the
10  same manner and to the same extent as the original contractor or design
11  professional except that:
12    (1)  The lien statement must state the name of the contractor or de-
13  sign professional and be filed within three months after the date supplies,
14  material or, equipment or services was last furnished or labor performed
15  by the claimant;
16    (2)  if a warning statement is required to be given pursuant to K.S.A.
17  60-1103a, and amendments thereto, there shall be attached to the lien
18  statement the affidavit of the supplier or subcontractor that such warning
19  statement was properly given; and
20    (3)  a notice of intent to perform, if required pursuant to K.S.A. 60-
21  1103b, and amendments thereto, must have been filed as provided by
22  that section.
23    (b)  Owner contractor is defined as any person, firm or corporation
24  who:
25    (1)  Is the fee title owner of the real estate subject to the lien; and
26    (2)  enters into contracts with more than one person, firm or corpo-
27  ration for labor, equipment, material or supplies used or consumed for
28  the improvement of such real property.
29    (c)  Recording and notice. When a lien is filed pursuant to this section,
30  the clerk of the district court shall enter the filing in the general index.
31  The claimant shall (1) cause a copy of the lien statement to be served
32  personally upon any one owner and any party obligated to pay the lien in
33  the manner provided by K.S.A. 60-304, and amendments thereto, for the
34  service of summons within the state, or by K.S.A. 60-308, and amend-
35  ments thereto, for service outside of the state, (2) mail a copy of the lien
36  statement to any one owner of the property and to any party obligated to
37  pay the same by restricted mail or (3) if the address of any one owner or
38  such party is unknown and cannot be ascertained with reasonable dili-
39  gence, post a copy of the lien statement in a conspicuous place on the
40  premises. The provisions of this subsection requiring that the claimant
41  serve a copy of the lien statement shall be deemed to have been complied
42  with, if it is proven that the person to be served actually received a copy
43  of the lien statement.
44    (d)  Rights and liability of owner. The owner of the real property shall
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 2  -not become liable for a greater amount than the owner has contracted to
 3  pay the original contractor  or design professional, except for any payments
 4  to the contractor or design professional made:
 5    (1)  Prior to the expiration of the three-month period for filing lien
 6  claims, if no warning statement is required by K.S.A. 60-1103a, and
 7  amendments thereto; or
 8    (2)  subsequent to the date the owner received the warning statement,
 9  if a warning statement is required by K.S.A. 60-1103a, and amendments
10  thereto.
11    The owner may discharge any lien filed under this section which the
12  contractor or design professional fails to discharge and credit such pay-
13  ment against the amount due the contractor.
14    Sec. 4.  K.S.A. 60-1103a is hereby amended to read as follows: 60-
15  1103a. (a) As used in this section, ``improvement of residential property''
16  means:
17    (1)  Improvement of a preexisting structure in which the owner re-
18  sides at the time the claimant first furnishes labor, equipment, material
19  or, supplies or services and which is not used or intended for use as a
20  residence for more than two families or for commercial purposes or im-
21  provement or construction of any addition, garage, fence, swimming pool,
22  outbuilding or other improvement appurtenant to such a structure; or
23    (2)  any construction upon or design services for real property which
24  is (A) owned or acquired by an individual at the time the claimant first
25  furnishes labor, equipment, material or, supplies or services; (B) intended
26  to become and does become the principal personal residence of that
27  individual upon completion; and (C) not used or intended for use as a
28  residence for more than two families or for commercial purposes.
29    (b)  A lien for the furnishing of labor, equipment, materials or, sup-
30  plies or services for the improvement of residential property may be
31  claimed pursuant to K.S.A. 60-1103 and amendments thereto only if the
32  claimant has:
33    (1)  Mailed to any one of the owners of the property a warning state-
34  ment conforming with this section; or
35    (2)  in the claimant's possession a copy of a statement signed and dated
36  by any one owner of the property stating that the general contractor, the
37  design professional or the claimant had given the warning statement con-
38  forming with this section to one such owner of the property.
39    (c)  The warning statement provided for by this section, to be effec-
40  tive, shall contain substantially the following statement:
41    ``Notice to owner: (name of supplier or subcontractor) is a supplier or
     subcontractor
42  providing materials or labor on Job No. ____________ at (residence address)
     under an
43  agreement with (name of contractor, the design professional). Kansas law
     will allow this
44  supplier or subcontractor to file a lien against your property for materials
     or, labor or services
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 2  -not paid for by your contractor or design professional unless you have a
     waiver of lien signed
 3  by this supplier or subcontractor. If you receive a notice of filing of a
     lien statement by this
 4  supplier or subcontractor, you may withhold from your contractor or design
     professional, if
 5  applicable the amount claimed until the dispute is settled.''
 6    (d)  The warning statement provided for by this section shall not be
 7  required if the claimant's total claim does not exceed $250.
 8    Sec. 5.  K.S.A. 1996 Supp. 60-1103b is hereby amended to read as
 9  follows: 60-1103b. (a) As used in this section, ``new residential property''
10  means a new structure which is constructed for use as a residence and
11  which is not used or intended for use as a residence for more than two
12  families or for commercial purposes. ``New residential property'' does not
13  include any improvement of a preexisting structure or construction of any
14  addition, garage or outbuilding appurtenant to a preexisting structure.
15    (b)  A lien for the furnishing of labor, equipment, materials or, sup-
16  plies or services for the construction of new residential property may be
17  claimed pursuant to K.S.A. 60-1103 and amendments thereto after the
18  passage of title to such new residential property to a good faith purchaser
19  for value only if the claimant has filed a notice of intent to perform prior
20  to the recording of the deed effecting passage of title to such new resi-
21  dential property. Such notice shall be filed in the office of the clerk of
22  the district court of the county where the property is located.
23    (c)  The notice of intent to perform and release thereof provided for
24  in this section, to be effective, shall contain substantially the following
25  statement, whichever is applicable:
26                            NOTICE OF INTENT TO PERFORM
27    ``I _______________________________________________________________ of
28            (name of supplier, subcontractor or, contractor
29                           or design professional)
30  ___________________________________________________________________________
31           (address of supplier, subcontractor or, contractor
32                           or design professional)
33  do hereby give public notice that I am a supplier, subcontractor or
     contractor or other
34  person providing materials or, labor or services on property owned by ___
35                                                          (name of property
     owner)
36  and having the legal description as follows: ______________________________
37  ___________________________________________________________________________
38  ________________________________________________________________________.''
39                       RELEASE OF NOTICE OF INTENT TO PERFORM
40                          No. _________ AND WAIVER OF LIEN
41    ``I _______________________________________________________________ of
42            (name of supplier, subcontractor or, contractor
43                           or design professional)
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 2  -________________________________________________________________________
 3           (address of supplier, subcontractor or, contractor
 4                           or design professional)
 5  do hereby acknowledge that I filed notice of intent to perform no.
     ____________ covering
 6  property owned by ____________ and having the legal description as follows:
 7  (name of property owner)
 8  ___________________________________________________________________________
 9  ___________________________________________________________________________
10  ___________________________________________________________________________
11  In consideration of the sum of $____________, the receipt of which is hereby
     acknowledged,
12  I hereby direct the clerk of the district court of ____________, Kansas to
     release the subject
13  notice of intent to perform and do hereby waive and relinquish any statutory
     right to a lien
14  for the furnishing of labor, equipment, materials or, supplies or services
     to the above-de-
15  scribed real estate under the statutes of the state of Kansas.''
16    (d)  When any claimant who has filed a notice of intent to perform
17  has been paid in full, such claimant shall be required to file in the office
18  in which the notice of intent to perform was filed, and to pay any requisite
19  filing fee, a release of such notice and waiver of lien which shall be exe-
20  cuted by the claimant, shall identify the property as set forth in the
     notice
21  of intent to perform, and state that it is the intention of the claimant to
22  waive or relinquish any statutory right to a lien for the furnishing of
     labor
23  or, material or services to the property. Upon such filing, the notice of
24  intent to perform previously filed by such claimant shall be of no further
25  force or effect, and such claimant's right to a lien under section 1 and
26  K.S.A. 60-1101 and 60-1103, and amendments thereto, shall be extin-
27  guished.
28    (e)  Any owner of the real estate upon which a notice of intent to
29  perform has been filed, or any owner's heirs or assigns, or anyone acting
30  for such owner, heirs or assigns, and after payment in full to the claimant,
31  may make demand upon the claimant filing the notice of intent to per-
32  form, for the filing of a release of the notice and waiver of lien as
     provided
33  for in subsection (d), unless the same has expired by virtue of the provi-
34  sions set forth in subsection (f).
35    (f)  Notwithstanding the requirements of subsections (d) and (e), a
36  notice of intent to perform shall be of no further force or effect after the
37  expiration of 18 months from the date of filing the same, unless within
38  such time the claimant has filed a lien pursuant to section 1 and K.S.A.
39  60-1101 and 60-1103, and amendments thereto.
40    Sec. 6.  K.S.A. 60-1106 is hereby amended to read as follows: 60-
41  1106. In such actions all persons whose liens are filed as herein provided,
42  and other encumbrancers of record, shall be made parties, and issues
43  shall be made and trials had as in other cases. Where such an action is
44  brought by a subcontractor, or person other than the original contractor
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 2  -or design professional, such original contractor or design professional
     shall
 3  be made a party defendant, and shall at his or her such party's own
 4  expense defend against the claim of every subcontractor, or other person
 5  claiming a lien under this article, and if he or she such party fails to
     make
 6  such defense the owner may make the same at the expense of such con-
 7  tractor; and or such design professional. Until all such claims, costs and
 8  expenses are finally adjudicated, and defeated or satisfied, the owner shall
 9  be entitled to retain from the contractor or design professional the
10  amount thereof, and such costs and expenses as he or she the contractor
11  or design professional may be required to pay. If the sheriff of the county
12  in which such action is pending shall make return that he or she the
     sheriff
13  is unable to find such original contractor or design professional, the court
14  may proceed to adjudicate the liens upon the land and render judgment
15  to enforce the same with costs.
16    Sec. 7.  K.S.A. 60-1110 is hereby amended to read as follows: 60-
17  1110. The contractor or, owner or design professional may execute a bond
18  to the state of Kansas for the use of all persons in whose favor liens might
19  accrue by virtue of this act, conditioned for the payment of all claims
20  which might be the basis of liens in a sum not less than the contract price,
21  with good and sufficient sureties, to be approved by a judge of the district
22  court and filed with the clerk of the district court. When bond is approved
23  and filed, no lien shall attach under this act, and if when such bond is
24  filed liens have already been filed, such liens are discharged. Suit may be
25  brought on such bond by any person interested.
26    Sec. 8.  K.S.A. 60-1102, 60-1103, 60-1103a, 60-1106 and 60-1110 and
27  K.S.A. 1996 Supp. 60-1103b are hereby repealed.
28    Sec. 9.  This act shall take effect and be in force from and after its
29  publication in the statute book.