Kansas State Lien Law Summary

Furnishers of labor or ma­terial to owner, general, or 1^st tier sub. The lien will only cover materials that are actually delivered to and incorporated into the project; materials delivered but not used are not covered, but rental equipment probably IS covered. A company that supplies skilled laborers who perform work on the jobsite will have rights at least against a payment bond that extends coverage to “all persons or entities” supplying labor, etc. [Tradesmen Intern., Inc. v. Wal-Mart Real Estate Business Trust., 129 P.3d 102 (Kan.App. 2006)] Suppliers to suppliers do not have lien rights. [J.W. Thompson Co. v. Welles Products Corp., 758 P.2d 738 (1988)] It’s not clear if architects have lien rights, but engineering services have been held lienable. [Mutual Savings Association v. Res/Com Properties, L.L.C., 32 Kan. App. 48, 79 P.3d 184 (2004)] NOTE also that where a subcontractor provides a bond to the general contractor as sole obligee, explicitly stating that no action or recovery accrues to anyone other than the named obligee, a supplier to the sub cannot recover on the bond. Note that a lien for services and materials used in removing hazardous materials from property is not lienable, as it is not considered an improvement to real property. [60-­1103, 60-1101; Schor at § 17.10, 17.14; Dawson v. Givens Constr. Co., Inc. 11 P.3d 81 (2000), Schor update at §17.04[B]; Haz-Mat Response, Inc. v. Certified Waste Services, Ltd., 21 K.A.2d 56, 59, 65, 896 P.2d 393 (1995)]

Furnisher of labor, mate­rials, equipment (including rental equipment) or supplies to public body, general or 1^st tier sub. If there is no bond, claimant can apparently file a mechanic’s lien. Suppliers to suppliers are not covered. [60-1111(a); J.W. Thompson Co. v. Welles Products Corp., 758 P.2d 738 (1988) Schor at §17.07[C], 17.04[A]]

For transportation projects, all furnishers of supplies, labor or materials to the general contractor or 1^st-tier subcontractors. [68-410]

Property. [60-1101] NOTE, however, that the owner’s liability is limited; an owner will not be liable for an amount over the contract amount, except for (1) amounts paid before the 3-month lien-filing period is up if no warning statement is required, and (2) amounts paid after receiving a warning notice, where one is required. [60-1103]

Where a contractor provides a statutory payment bond, the claimant may not need to perfect his or her claim, but it is advisable that he or she does so. [Bob Eldridge Constr. Co., Inc v. Pioneer Materials, Inc., 235 Kan. 599, 684 P.2d 355 (Kan. 1984)]

-Contractor’s payment bond

-Certificate of Deposit, where authorized. There is also a case holding that where there is no payment bond, a lien can be filed, though rather than selling the public improvement, mandamus will lie to compel payment or impose a levy to raise money to pay the lien. [60-1111, 60-1112; Huttig Mill Work. Co. v. Randel, 26 P. 106 (1928)]

For transportation projects, the contractor’s payment and performance bond. [68-410]

PRE-EXISTING 1-2 FAMILY RESIDENTIAL PROJECT:

All subcontractor and supplier clai­mants on pre-existing own­er-occupied 1- or 2-family resi­dential projects whose claim ex­ceeds $250 must give the warning notice, unless the claimant has a written state­ment signed and dated by an own­er stat­ing that the gen­eral con­tractor has already giv­en the warning statement. [60-1103a(1)(d)]

NEW 1-2 FAMILY RESIDENTIAL CONSTRUCTION:

All subcontractor and supplier clai­mants on NEW 1- or 2-family dwelling residential prop­erty must give the notice of intent to perform. NOTE, HOWEVER, that if the notice of intent to perform is filed and the claimant is subsequently paid in full, the claimant must file a release of the notice and thereby lose its lien rights. [60-1103b]

FOR ALL PROJECTS:

No one, unless the terms of the bond require notice, so it is best to obtain a copy of the bond.

PRE-EXISTING RESIDENCE:

Warning notice: To owner.   [60-1103a]

NEW 1-2 FAMILY RESIDENTIAL CONSTRUCTION:

Notice of intent to perform: Clerk of district court of county where property is located. [60-1103b]

Not applicable, unless the terms of the bond require notice, so it is best to obtain a copy of the bond.

PRE-EXISTING RESIDENCE AND NEW 1-2 FAMILY RESIDENTIAL CONSTRUCTION:

Received prior to filing final no­tice, and the notice on new residential construction must be filed prior to the recording of the deed effecting transfer of the title of the property to the new owner. Recommend giving it when most or all labor or materials have been provided, so that claimant could not be forced to release lien rights by receiving payment in full of only a portion of the materials or labor to be supplied. The notice of intent expires after 18 months, if lien is not filed. [60-­1103a and b]

Not applicable, unless the terms of the bond require notice, so it is best to obtain a copy of the bond.

PREEXISTING RESIDENCE:

Warning notice:  Please contact Levy von Beck & Associates for further information about this notice.

NEW 1-2 FAMILY RESIDENTIAL CONSTRUCTION:

Notice of intent to perform:  Please contact Levy von Beck & Associates for further information about this notice. [60-1103b]

Release:  Please contact Levy von Beck & Associates for further information about this notice.  [60-1103b]

Not applica­ble, unless the terms of the bond require notice, so it is best to obtain a copy of the bond.

PREEXISTING RESIDENCE:

Warning notice:  Personal delivery or mailed to any one of the owners; certified or registered mail recommended. If personally delivered, claimant needs to keep a signed and dated statement by any one owner of the property stating that the general contractor or the claimant has given the warning statement to one such owner of the property. Consequences of refusal to accept delivery are not clear; recommend ensuring actual receipt. [60-1103a]

NEW 1-2 FAMILY RESIDENTIAL CONSTRUCTION:

Notice of intent to perform:  File with clerk of district court. [60-1103a and -b]

Release:  File with the clerk of the district court. [60-1103b]

Not applicable, unless the terms of the bond require notice, so it is best to obtain a copy of the bond.

An interim notice is not required.

An interim notice is not required.

Every claimant. [60-1102, 60-1103]

NOTE, however, that where a statutory private payment bond is filed, the final notice is not required. It is recommended that the notice be given anyway. [Schor update at §17.20[A]]

NOTE ALSO that all claimants seeking to extend the time for filing their lien on a non-residential project to five months must timely file the Notice of Extension to File Lien. A residential project is a 1-2 family dwelling. [60-1102, 60-1103]

BOND:

No one – just file suit. If, however, the bond itself requires that notice be given, then notice will be required, thus it is best to obtain a copy of the bond. [60-1111]

CERTIFICATE OF DEPOSIT:

All claimants. [60-1111]

TRANSPORTATION PROJECTS:

All claimants. [68-410]

LIEN:

General contractor:

To clerk of dis­trict court of county in which property is located, and to the owner. [60-1102]

Subs and material suppliers:

-Clerk of court

-Owner

-Holder of a recorded equitable interest in the property (Note that a claimant cannot proceed to foreclose a lien against residential real estate unless the holder of a recorded equitable interest was personally served with notice.)

-Any party obligated to pay the lien

-Contractor (recommended)

-Claimant’s customer. [60-1102, 60-1103]

NOTICE OF EXTENSION:

General contractor:

-Office of the district court of the county where the property is located.

-Owner

Subs and material suppliers:

-Office of the clerk of the district court of the county where the property is located.

-General contractor or construction manager

-Owner, if known. [60-1102, 60-1103]

BOND:

Notice is only required if the terms of the bond itself require a notice, thus it is best to obtain a copy of the bond.

CERTIFICATE OF DEPOSIT:

Di­rector of purchases. [60-11­11]

TRANSPORTATION PROJECTS:

Filed with the secretary of transportation. [68-410]

LIEN:

General Contractor: Recorded within 4 months after the claimant last furnished labor or materi­als to the project, unless the Notice of Extension is filed within that time, in which case the deadline is 5 months. Remember that the Notice of Extension is not allowed on a residential project. Note that a contractor will be allowed to file the lien within 4 months after a subcontractor performs work under the contract, even if the contractor is not performing any more work at that point. [60-1102; Nicholson v. Hartnett, 277 P.3d 1193 (Ct.App. 2012)]

Subs and material suppliers: Received with­in 3 months after claimant’s last work or de­liv­ery, unless the Notice of Extension is filed within that time, in which case the claimant will have 5 months to file the lien. Remember that the Notice of Extension is not allowed on a residential project. NOTE, however, that if notice of intent to perform was required, and was given (i.e., on new 1-2 family residential construction), it expires 18 months from date of filing, unless a lien is filed in that time

NOTICE OF EXTENSION:

General contractor: Received within 4 months after the   claimant last furnishes labor or materi­als to project.   If the Notice of Extension to File Lien is given within this time period, then the contractor will have 5 months to file its lien rather than four. (In other words, it gives the contractor an additional month.) BUT NOTE that this is only an option on NON-RESIDENTIAL property. Residential property is defined as property that is constructed as a residence and intended for use by not more than 2 families. [60-1102]

Subs and suppliers: Notice must be received with­in 3 months after the claimant’s last de­liv­ery. If the Notice of Extension to File Lien is given within this time period, the claimant will have 5 months to file its lien rather than three. (In other words, it gives the claimant an additional two months.) BUT NOTE that this is only an option on NON-RESIDENTIAL property. [60-1102, 60-1103; Schor at §17.19[A]]

BOND:

Notice is only required if the terms of the bond itself require a notice, thus it is best to obtain a copy of the bond.

CERTIFICATE OF DEPOSIT:

Received wit­hin 6 months after final­ acc­eptance of project. [60-111­2]

TRANSPORTATION PROJECTS: 

Within 6 months after completion of the contract. [68-410]

LIEN:

General contractor:

File with the clerk of dis­trict court of county where prop­erty is located, and mailed by certified and regular mail to the owner. [60-11­02]

Subs and material suppliers:

File with the clerk and either personally serve the owner, holder of a recorded equitable interest and the contractor, or send the notices by re­stricted mail. (Restricted mail means mail that carries on its face the endorsements “return receipt requested showing address where delivered” and “deliver to addressee only”. Note, however, that where the recipient is a corporation or otherwise not a natural person, the phrase ‘deliver to addressee only’ need not be used.) If the ad­dress of a recipient is un­known, post a copy of the lien statement in a conspicuous place on the premises. ACTUAL RECIEPT (or posting, if necessary) OF THE NOTICE IS ESSENTIAL.  [60-1103; 60-103]­

NOTICE OF EXTENSION:

General contractor:

-Filed with the district court.

-Certified AND regular mail to the owner. [60-1102]

Subs and material suppliers:

-Filed with the clerk of the district court

-Certified AND regular mail to the general contractor or construction manager

-Regular mail to the owner, if known. [60-1103]

BOND:

Notice is only required if the terms of the bond itself require a notice, thus it is best to obtain a copy of the bond.

CERTIFICATE OF DEPOSIT:

No specific provision.

TRANSPORTATION PROJECTS:

Filed. [68-410]

LIEN:

General Contractor:  

-Name of owner

-Actual name and address of clai­mant sufficient for service of process. If claimant uses a trade name, be sure to include the actual name in the lien statement.

-Description of real prop­erty

-Reasonably itemized stat­ement and amount claimed. There must be some indication of what labor was done, what materials were provided, or how the claimant arrived at the amount due. The statement must be fair and sufficient to inform the landowner of the claim and to enable him to ascertain whether the material was furnished and the charges fair. [Huber Co. v. DeSouza, 32 Kan. App. 2d 614, 86 P.3d 1022 (Kan. Ct. App. 1986)] If it just lists broad categories, it will not be considered reasonably itemized. [Nicholson v. Hartnett, 277 P.3d 1193 (Ct.App. 2012)]

-If amount claimed is evi­denced by a contract, document or promissory note, a copy of these may be attached in­stead of itemized statement -Claim must be verified, i.e., signed under penalty of perjury. Per case law, attorney or agent may sign it. NOTE that the claim form itself must include all of the required information stated above. It is not sufficient if attachments to the lien include some of the required information – all required information must be included in the verified lien itself. The person signing the lien MUST state that the signer is an agent of the claimant, or otherwise identify the signer’s connection to the claimant. NOTE ALSO that a slash mark between the name of the contractor’s manager and the name of the contractor itself in the mechanic’s lien is NOT sufficient to establish that the manager signed the lien statement in a representative capacity, thus the lien was INVALID. Presumably had the manager signed it stating “for” or “by”, the lien would have been adequately verified. [60-11­02, Schor at §§17.16, 17.19[A][1]; Wagner Interior Supply of Kansas City, Inc. v. Associated Drywall Contractors, Inc., 318 P.3d 677 (Kan.App.2014); Buchanan v. Overley, 178 P.3d 53 (Kan.App.2008); Trane Co. v. Bakkalapulo, 672 P.2d 586 (Kan. 1983); Jankord v. Lin, 32 Kan. App. 2d 1255, 96 P.3d 692 (2004); Schor update at 17.16]

Subcontractors:

-Name of owner

-Name of contractor. NOTE that if the contractor’s name is wrong on the lien, the claimant will not be allowed to amend the lien after the filing date has passed, and the lien will then be deemed INVALID. [Tradesmen Intern., Inc. v. Wal-Mart Real Estate Business Trust., 129 P.3d 102 (Kan.App. 2006); Alliance Steel, Inc. v. Piland, 187 P.3d 111 (Kan.App.2008); National Restoration Co. v. Merit General Contractors, Inc., 208 P.3d 755 (Kan. App.,2009)]

-Actual name and address of clai­mant sufficient for service of process (so no P.O. box addresses). If claimant uses a trade name, be sure to include the actual name in the lien statement.

-Description of real property

-Reasonably itemized stat­ement and amount claimed. There must be some indication of what labor was done, what materials were provided, or how the claimant arrived at the amount due. The statement must be fair and sufficient to inform the landowner of the claim and to enable him to ascertain whether the material was furnished and the charges fair. [Huber Co. v. DeSouza, 32 Kan. App. 2d 614, 86 P.3d 1022 (Kan. Ct. App. 1986)] NOTE, HOWEVER, that on all projects EXCEPT a pre-existing or new owner-occupied 1-2 family residence, the amount recoverable will be limited to the amount the owner contracted to pay the original contractor, plus any payments to the contractor that occurred during the three-month period for filing lien claims. On a 1-2 family owner-occupied residence, the lien will be limited to the amount the owner contracted to pay the original contractor, plus any payments to the contractor that occurred after the date the owner received the warning statement. [60-1103, 60-1103a]

-Attach affidavit stating or showing that warning statement, if re­quired, was properly giv­en

-If amount claimed is evi­denced by a document or promissory note, a copy of these may be attached in a lien of statement

-Claim must be verified, i.e., signed under penalty of perjury. Per case law, attorney or agent apparently may sign statement. NOTE that the claim form itself must include all of the required information stated above; it is not sufficient if attachments to the lien include some of the required information. The person signing the lien MUST state that the signer is an agent of the claimant, or otherwise identify the signer’s connection to the claimant. NOTE, HOWEVER, that a slash mark between the name of the contractor’s manager and the name of the contract itself in the mechanic’s lien is NOT sufficient to establish that the manager signed the lien statement in a representative capacity, thus the lien was INVALID. Presumably had the manager signed it stating “for” or “by”, the lien would have been adequately verified. [60-1­103; Schor at §17.16[A]; Wagner Interior Supply of Kansas City, Inc. v. Associated Drywall Contractors, Inc., 318 P.3d 677 (Kan.App.2014); Buchanan v. Overley, 178 P.3d 53 (Kan.App.2008); Trane Co. v. Bakkalapulo, 672 P.2d 586 (Kan. 1983); Jankord v. Lin, 32 Kan. App. 2d 1255, 96 P.3d 692 (2004)]

NOTICE OF EXTENSION:

General contractor:

Please contact Levy von Beck & Associates for information.

Subs and material suppliers:

Please contact Levy von Beck & Associates for information.

BOND:

Notice is only required if the terms of the bond itself require a notice, thus it is best to obtain a copy of the bond.

CERTIFICATE OF DEPOSIT:

No specific provision – just “make a claim.” [60-1111, 60-1112]

TRANSPORTATION PROJECTS:

An itemized statement of the amount of the indebtedness. The itemized statement must be sworn to and acknowledged before a notary public or other officer authorized to administer oaths. [68-410]

Within one year after fil­ing the lien, but if a pro­mis­sory note has been at­tached to the lien state­ment in lieu of an itemized state­ment, then suit must start within one year from the maturity of the note. Once the suit has been brought, the lien may be amended by leave of the judge in furtherance of justice, except that the amendment cannot increase the amount claimed. Note that the holder of a recorded equitable interest on residential property must be served before the suit can be filed.   [60-1103, 60-1105]

Where there is a private payment bond, suit must be brought within 5 years of the date the cause of action accrued. [Bob Eldridge Constr. Co., Inc v. Pioneer Materials, Inc., 235 Kan. 599, 684 P.2d 355 (Kan. 1984)] NOTE, HOWEVER, that the court will likely honor a shorter deadline if that provision was included in the contract. [Pfeifer v. Federal Express Corp., 304 P.3d. 1226 (2013); B.S.C. Holding, Inc. v. Lexington Ins. Co., Not Reported in F.Supp.2d (U.S.D.C. Kan. 2014); Schor at §17.06[D]] [Note that in order to bring a claim under such a bond, a claimant need only show that its labor or material was supplied and used in the project; claimant need not show that its mechanic’s lien claim had been perfected. [Schor update at §17.06[D], §17.20[A]]

BOND AND CERTIFICATE OF DEPOSIT:

Within 6 months after completion of project. [60-1111, 60-1112] NOTE that a sub-subcontractor must file suit against the bond for himself or herself; he or she cannot rely on the suit filed by his or her customer (the subcontractor) to protect the sub-subcontractor’s rights. [Simplexgrinnell, LP v. Hackney Elec. Co., Inc., 212 P.3d 263 (Table) (Kan.App.,2009)]

TRANSPORTATION PROJECTS:

Within one year from the date of completion of the contract. [68-410]