There are various statutory requirements when filing a mechanics lien in Wisconsin, depending on your role in a construction project. The preliminary notice requirements vary, and the deadlines are also different and are strictly enforced.
This guide details all the requirements that you need to be aware of when filing a Wisconsin mechanics lien, from the list of information that you must include in the lien forms to the most common mistakes that construction stakeholders make when dealing with a mechanics lien.
- Who can file a Wisconsin Mechanics Lien?
- Serving the required pre-lien notices
- Filing a Wisconsin Mechanics Lien
- Important Deadlines to Keep In Mind
- 3 Common Mistakes When Filing a Wisconsin Mechanics Lien
Who can file a Wisconsin Mechanics Lien?
According to WSL 779.01 (3), any person who “performs, furnishes, or procures any work, labor, service, materials, plans, or specifications” for a project shall have the right to file a Wisconsin mechanics lien.
Contractors, subcontractors, material suppliers, equipment lessors, architects, and designers all have the right to file a mechanics lien, regardless of their position in the contracting chain.
When must you sign a Wisconsin lien waiver?
Ideally, you must never sign a Wisconsin lien waiver unless you have received full payment for the work that you have done. Keep in mind that the law allows you to refuse to sign a waiver or any similar document that waives your right to file a mechanics lien.
Also note that lien waivers are strictly enforced in Wisconsin, whether they are labeled “conditional” or they have been signed way before the project has commenced. The statutory laws also do not take into account if you have indeed received payment or not.
Once you sign a lien waiver, it will be highly unlikely for the court to reverse the contents of the waiver and grant you back your lien rights.
Serving the required pre-lien notices
Before you can file a mechanics lien in Wisconsin, you must first serve the required pre-lien notices. Failing to serve these notices will forfeit your lien rights, so make sure that you understand the different deadlines and requirements regarding these documents.
There are different pre-lien notices that you must serve in Wisconsin depending on your role on the project.
For general contractors
If you are a general contractor and you have a written contract with the property owner, a Notice to Owner must be included in your contract. But if you do NOT have a contract with the owner, you must serve the Notice to Owner within 10 days after first furnishing labor or service to the project.
What should be on the Notice to Owner form in Wisconsin?
Whether the Notice to Owner is included in the written contract or is subsequently served after the first day of work, it must still substantially contain the following statement typed in at least 8-point bold type if printed, or in capital letters if typewritten:
“As required by the Wisconsin construction lien law, claimant hereby notifies owner that persons or companies performing, furnishing, or procuring labor, services, materials, plans, or specifications for the construction on owner’s land may have lien rights on owner’s land and buildings if not paid. Those entitled to lien rights, in addition to the undersigned claimant, are those who contract directly with the owner or those who give the owner notice within 60 days after they first perform, furnish, or procure labor, services, materials, plans or specifications for the construction. Accordingly, owner probably will receive notices from those who perform, furnish, or procure labor, services, materials, plans, or specifications for the construction, and should give a copy of each notice received to the mortgage lender, if any. Claimant agrees to cooperate with the owner and the owner’s lender, if any, to see that all potential lien claimants are duly paid.”
How should the Notice to Owner be served in Wisconsin?
The Notice to Owner must be served on the property owner or their authorized agent by registered or certified mail. You must keep a written or documented proof that the notice has been served. If there are multiple property owners, sending the Notice to Owner to at least one property owner should be sufficient.
What happens if you fail to serve the Notice to Owner?
Failing to serve the Notice to Owner if you are a general contractor will result in having your lien rights revoked, unless you settle your obligations to all subcontractors, material suppliers, and other construction participants under your tier.
You may also still file a mechanics lien if none of these other participants have submitted their preliminary notices within the deadline, or if all of them have waived their lien rights. Otherwise, you will lose your lien rights.
For subcontractors and material suppliers
Subcontractors, material suppliers, and other construction participants must serve 2 signed copies of a preliminary notice on the property owner. The first copy goes to the owner, while the second copy is handed by the owner to the mortgage lender that funds the project.
The preliminary notice must be served within 60 days after first performing labor or supplying materials to the project.
What should be on the Wisconsin preliminary notice form?
The preliminary notice in Wisconsin must substantially in the following form, with the blank items correctly filled in:
“As a part of your construction contract, your prime contractor or claimant has already advised you that those who perform, furnish, or procure labor, services, materials, plans, or specifications for the work will be notifying you. The undersigned first performed, furnished, or procured labor, services, materials, plans, or specifications on _____ (give date) for the improvement now under construction on your real estate at _____ (give legal description, street address or other clear description). Please give your mortgage lender the extra copy of this notice within 10 days after you receive this, so your lender, too, will know that the undersigned is included in the job.”
Note that the recommended statutory form shown above requires a legal description of the property, if available.
How should the preliminary notice be served?
The preliminary notice must be served on the property owner or their authorized agent by registered or certified mail. A written or documented proof that the notice was served may be necessary to show that you have complied with the notice requirements.
What if you serve the preliminary notice after the 60-day time frame?
Serving the preliminary notice late will not necessarily revoke your lien rights altogether. If the late preliminary notice is otherwise properly filled out, you may still file a mechanics lien, but it will only cover the work that you have done after the preliminary notice was actually received by the owner.
For all lien claimants
Whatever your role in the project is, you must serve a Notice of Intent to File a Lien Claim on the property owner at least 30 days before you file your mechanics lien. This applies to all lien claimants, from general contractors to subcontractors to material suppliers.
The Notice of Intent to File a Lien Claim must contain the following:
- the nature of the claim
- the amount being claimed
- the property/improvement to which the claim relates
This notice may also be served by personal delivery or by registered or certified mail. As with all notices, make sure that you keep documented proof that you have sent this notice to the property owner.
Filing a Wisconsin Mechanics Lien
1. Prepare the Wisconsin mechanics lien form
The Wisconsin mechanics lien—also known as a claim of lien or lien claim—must contain the following information:
- a statement of the contract or demand upon which the lien claim is founded
- the name of the person against whom the lien is being claimed
- the name(s) of the claimant and any assignee, if applicable
- the last date of furnishing labor or service to the project
- a legal description of the property
- the amount being claimed
- all other “material facts” related to the claim
There is no suggested form for the actual lien claim, as long as the pieces of information mentioned above are all included in the document. The mechanics lien in Wisconsin also does NOT have to be notarized.
2. Record the mechanics lien
Once you have secured your lien rights by serving the required notices and you have properly prepared your mechanics lien form, you are ready to file the mechanics lien.
When should you file the mechanics lien in Wisconsin?
The Wisconsin mechanics lien must be filed within 6 months after the last day of furnishing labor or materials to the project. Note that the Notice of Intent to Lien must be served at least 30 days before filing the mechanics lien, but serving this notice does not extend the 6-month deadline. Make sure that you serve the Notice of Intent 30 days before the 6-month window expires.
Where should you file the mechanics lien in Wisconsin?
The mechanics lien must be filed in the office of the clerk of circuit court of the county where the project is located.
After filing the Wisconsin mechanics lien, you must serve a copy of the mechanics lien on the property owner(s) within 30 days after the recordation date.
Can you file the Wisconsin mechanics lien online?
Yes, via the Handle app. Handle can file the mechanics lien on your behalf, and it can also ensure that the documents you are filing are correctly prepared and properly researched. Handle can also take care of all pre-lien notice requirements, from preparing them with your information to serving them on the appropriate parties.
Can you claim attorney fees and other lien costs in the Wisconsin mechanics lien?
No, you must not include attorney fees, lost profits, lien fees, and other miscellaneous expenses in a Wisconsin mechanics lien. The claimed amount must be strictly related to the service that you provided to the project.
3. Enforce the mechanics lien
This last step is an option if you still do not get paid after filing a mechanics lien. Enforcing the lien means filing a foreclosure lawsuit against the property. This step must be done within 2 years after you file the mechanics lien; otherwise, the lien will expire and you will lose your hold over the property.
Before filing a foreclosure lawsuit, you may also send a Notice of Intent to Foreclose to the property owner. This notice basically informs the property owner of your intention to file a lawsuit against them.
Sending a Notice of Intent to Foreclose is not a strict requirement in Wisconsin, but doing so may be enough to persuade the property owners to produce payment. Serving this notice may even be beneficial for both you and the property owners, as ideally neither your nor the owners would like to spend time and resources on a lawsuit that may be easily settled.
What if I get paid in full after filing the mechanics lien? Is a foreclosure lawsuit still necessary?
If the mechanics lien has been satisfied and you have received the due payment in full, you are required to file a record of satisfaction in the local circuit court.
Typically the property owner or any interested party will write you a request to execute the satisfaction of the lien, and you are obligated by law to comply with such request. Failing to release the mechanics lien by filing the satisfaction record may render you liable for paying the requesting party a sum equal to one-half of the lien amount.
Important Deadlines to Keep In Mind
3 Common Mistakes When Filing a Wisconsin Mechanics Lien
Not using a legal description for a property
Wisconsin requires a property to be described using its legal property description. Failing to use a legal description may result in the invalidation of your lien claim, so make sure that you get hold of this information.
Failing to file the required pre-lien notices
Keep in mind that the aforementioned pre-lien notices are required to protect your lien rights. If you do not file them on time, your right to file a mechanics lien may be revoked and you will end up not getting your money if payment issues arise down the road.
Failing to meet the deadlines
The deadlines are different for each pre-lien notice, but be especially mindful with the deadline for the Notice of Intent to File a Claim of Lien. It must be submitted at least 30 days before filing the mechanics lien, but the mechanics lien deadline does not get extended based on when you serve your Notice of Intent.Further reading
- What Is a Mechanics Lien? Your Questions Answered
- Preliminary Notice and Notice of Intent to Lien: How to Secure Your Lien Rights
- How to File A California Mechanics Lien