Session of 1998
                   
SENATE BILL No. 653
         
By Senator Gooch
         
2-12
            9             AN ACT concerning civil procedure; relating to liens for labor and ma-
10             terials; real property; amending K.S.A. 60-1101, 60-1103 and 60-1103a
11             and repealing the existing sections.
12            
13       Be it enacted by the Legislature of the State of Kansas:
14           Section 1. K.S.A. 60-1101 is hereby amended to read as follows:
15       60-1101. Any person furnishing labor, equipment, material, or supplies
16       used or consumed for the improvement of real property, under a contract
17       with the owner or with the trustee, agent or spouse of the owner, shall
18       have a lien upon the property for the labor, equipment, material or sup-
19       plies furnished, and for the cost of transporting the same, except that such
20       person shall no longer have a lien upon the property once the owner has
21       paid in full the amount contracted to pay for such labor, equipment, ma-
22       terial or supplies. The lien shall be preferred to all other liens or encum-
23       brances which are subsequent to the commencement of the furnishing
24       of such labor, equipment, material or supplies at the site of the property
25       subject to the lien. When two or more such contracts are entered into
26       applicable to the same improvement, the liens of all claimants shall be
27       similarly preferred to the date of the earliest unsatisfied lien of any of
28       them.
29           Sec. 2. K.S.A. 60-1103 is hereby amended to read as follows: 60-
30       1103. (a) Procedure. Any supplier, subcontractor or other person furnish-
31       ing labor, equipment, material or supplies, used or consumed at the site
32       of the property subject to the lien, under an agreement with the con-
33       tractor, subcontractor or owner contractor may obtain a lien for the
34       amount due in the same manner and to the same extent as the original
35       contractor except that:
36           (1) The lien statement must state the name of the contractor and be
37       filed within three months after the date supplies, material or equipment
38       was last furnished or labor performed by the claimant;
39           (2) if a warning statement is required to be given pursuant to K.S.A.
40       60-1103a, and amendments thereto, there shall be attached to the lien
41       statement the affidavit of the supplier or subcontractor that such warning
42       statement was properly given;   and
43           (3) a notice of intent to perform, if required pursuant to K.S.A. 60-

SB 653

2

  1       1103b, and amendments thereto, must have been filed as provided by
  2       that section  .; and
  3           (4) no lien shall be obtained as provided in this subsection, if the
  4       owner of the property has paid in full the amount contracted to pay to
  5       the original contractor.
  6           (b) Owner contractor is defined as any person, firm or corporation
  7       who:
  8           (1) Is the fee title owner of the real estate subject to the lien; and
  9           (2) enters into contracts with more than one person, firm or corpo-
10       ration for labor, equipment, material or supplies used or consumed for
11       the improvement of such real property.
12           (c) Recording and notice. When a lien is filed pursuant to this section,
13       the clerk of the district court shall enter the filing in the general index.
14       The claimant shall (1) cause a copy of the lien statement to be served
15       personally upon any one owner and any party obligated to pay the lien in
16       the manner provided by K.S.A. 60-304, and amendments thereto, for the
17       service of summons within the state, or by K.S.A. 60-308, and amend-
18       ments thereto, for service outside of the state, (2) mail a copy of the lien
19       statement to any one owner of the property and to any party obligated to
20       pay the same by restricted mail or (3) if the address of any one owner or
21       such party is unknown and cannot be ascertained with reasonable dili-
22       gence, post a copy of the lien statement in a conspicuous place on the
23       premises. The provisions of this subsection requiring that the claimant
24       serve a copy of the lien statement shall be deemed to have been complied
25       with, if it is proven that the person to be served actually received a copy
26       of the lien statement.
27           (d) Rights and liability of owner. No lien shall be obtained as provided
28       in this subsection, if the owner of the property has paid in full the amount
29       contracted to pay to the original contractor. The owner of the real prop-
30       erty shall not become liable for a greater amount than the owner has
31       contracted to pay the original contractor, except for any payments to the
32       contractor made:
33           (1) Prior to the expiration of the three-month period for filing lien
34       claims, if no warning statement is required by K.S.A. 60-1103a, and
35       amendments thereto; or
36           (2) subsequent to the date the owner received the warning statement,
37       if a warning statement is required by K.S.A. 60-1103a, and amendments
38       thereto.
39           The owner may discharge any lien filed under this section which the
40       contractor fails to discharge and credit such payment against the amount
41       due the contractor.
42           Sec. 3. K.S.A. 60-1103a is hereby amended to read as follows: 60-
43       1103a. (a) As used in this section, ``improvement of residential property''

SB 653

3

  1       means:
  2           (1) Improvement of a preexisting structure in which the owner re-
  3       sides at the time the claimant first furnishes labor, equipment, material
  4       or supplies and which is not used or intended for use as a residence for
  5       more than two families or for commercial purposes or improvement or
  6       construction of any addition, garage, fence, swimming pool, outbuilding
  7       or other improvement appurtenant to such a structure; or
  8           (2) any construction upon real property which is (A) owned or ac-
  9       quired by an individual at the time the claimant first furnishes labor,
10       equipment, material or supplies; (B) intended to become and does be-
11       come the principal personal residence of that individual upon completion;
12       and (C) not used or intended for use as a residence for more than two
13       families or for commercial purposes.
14           (b) A lien for the furnishing of labor, equipment, materials or supplies
15       for the improvement of residential property may be claimed pursuant to
16       K.S.A. 60-1103 and amendments thereto only if the claimant has:
17           (1) Mailed to any one of the owners of the property a warning state-
18       ment conforming with this section; or
19           (2) in the claimant's possession a copy of a statement signed and dated
20       by any one owner of the property stating that the general contractor or
21       the claimant had given the warning statement conforming with this sec-
22       tion to one such owner of the property.
23           (c) The warning statement provided for by this section, to be effec-
24       tive, shall contain substantially the following statement:
25           ``Notice to owner: (name of supplier or subcontractor) is a supplier or
26       subcontractor providing materials or labor on Job No. ________ at (res-
27       idence address) under an agreement with (name of contractor). Kansas
28       law will allow this supplier or subcontractor to file a lien against your
29       property for materials or labor not paid for by your contractor unless you
30       have a waiver of lien signed by this supplier or subcontractor. No lien
31       shall be obtained by the subcontractor if you have paid in full the amount
32       contracted to pay to the original contractor. If you receive a notice of
33       filing of a lien statement by this supplier or subcontractor, you may with-
34       hold from your contractor the amount claimed until the dispute is set-
35       tled.''
36           (d) The warning statement provided for by this section shall not be
37       required if the claimant's total claim does not exceed $250.
38           Sec. 4. K.S.A. 60-1101, 60-1103 and 60-1103a are hereby repealed.
39           Sec. 5. This act shall take effect and be in force from and after its
40       publication in the statute book.
41