This post provides a brief snapshot of Mechanics Liens in Illinois. While I recommend this short post for those involved in the construction industry (Contractors, Subcontractors, Suppliers, etc.) as well as for Attorneys that represent such parties, I strongly suggest that anyone facing a potential lien claim or seeking to enforce one find an experienced practitioner. As you will see below, there are more ways to fail at enforcing a Mechanics Lien than to succeed. For still more information, see our Mechanics Lien Primer.
Under Illinois law a “mechanic” – usually a General Contractor, Subcontractor, Supplier, or Architect – is one that improves real property and is entitled to a lien in the property until paid. That inchoate lien may be perfected by the filing of notice and enforced through the filing of suit to foreclose. This is what we know as a Mechanics Lien.
The right to bring a Mechanics Lien is granted exclusively by statute – no such right exists at common law. With respect to improvements on private property, the Illinois Mechanics Lien Act controls; while the Liens Against Public Funds Act applies to liens on public property. Since Mechanics Liens arise only from statute, the law must be strictly construed in all respects – the most important being the absolute deadlines specified in Illinois law. Failure to adhere to the statutory deadlines is fatal to the right of the complaining party
When changes are made in the process of a construction project, those changes should be documented as “Change Orders.” Illinois law requires the following five (5) factors in order for a Change Order to be enforceable:
1.The extra must be outside the scope of the original contract;
2.The extra must have been ordered by the property owner;
3.The owner must agree to pay for the extra by word or deed;
4.The extra must not have been volunteered by the contractor; and
5.Extras cannot be charged to correct faulty or incomplete work.
Failure to meet these criteria will bar any claim for that extra. In short, while it is not necessary to obtain change orders in writing, it is obviously a good idea to do so and to prominently display how much the work and materials will cost, as well as the anticipated effect on the overall construction schedule.
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