Section 779.01. Construction liens.

 

(1)   Name of law. This subchapter may be referred to as the construction lien law.

(2)   Definitions. In this subchapter unless the context or subject matter requires otherwise:

(a) “Improve" or “improvement" includes any building, structure, erection, fixture, demolition, alteration, excavation, filling, grading, tiling, planting, clearing, landscaping, repairing, or remodeling which is built, erected, made or done on or to land for its benefit. This enumeration is intended as an extension rather than a limitation of the normal meaning and scope of “improve" and “improvement".

(am) “Labor" includes any wages and related contributions for state employment taxes, worker's compensation and unemployment compensation insurance, and other fringe benefits.

(b) “Lien claimant" means any person who claims a lien under this section pursuant to a contract for improvement of land entered into by an owner of the land.

(bm) “Materials" includes any construction materials, supplies, tools, fixtures, equipment, machinery, vehicles, fuel, and energy.

(c) “Owner" means the owner of any interest in land who, personally or through an agent, enters into a contract, express or implied, for the improvement of the land. Agency will be presumed, in the absence of clear and convincing evidence to the contrary, between employer and employee, between spouses, between joint tenants and among tenants in common, but there shall be a similar presumption against agency in all other cases.

(d) “Prime contractor" means any of the following:

1. A person, other than a laborer, but including an architect, professional engineer, construction manager, surveyor, or other service provider, employed by the owner, who enters into a contract with an owner of land who is not personally the prime contractor as defined in subd. 2. to improve the land, or who takes over from a prime contractor the uncompleted contract.

2. An owner of land who acts personally as prime contractor in improving such land.

(e) “Serve" or “served" means personal delivery, delivery by registered or certified mail, service in a manner described for service of a summons under s. 801.14 , or any other means of delivery in which the recipient makes written confirmation of the delivery; except that in s. 779.15 , with respect to serving the state, “serve" or “served" means delivery by registered or certified mail.

(3)   Extent and character of lien. Any person who performs, furnishes, or procures any work, labor, service, materials, plans, or specifications, used or consumed for the improvement of land, and who complies with s. 779.02 , shall have a lien therefor on all interests in the land belonging to its owners. The lien extends to all contiguous land of the owner, but if the improvement is located wholly on one or more platted lots belonging to the owner, the lien applies only to the lots on which the improvement is located.

(4)   Priority of construction lien. The lien provided in sub. (3) shall be prior to any lien which originates subsequent to the visible commencement in place of the work of improvement, except as otherwise provided by ss. 215.21 (4) (a) , 292.31 (8) (i) , 292.81 and 706.11 (1) and (1m) . When new construction is the principal improvement involved, commencement is considered to occur no earlier than the beginning of substantial excavation for the foundations, footings or base of the new construction, except where the new construction is to be added to a substantial existing structure, in which case the commencement is the time of the beginning of substantial excavation or the time of the beginning of substantial preparation of the existing structure to receive the added new construction, whichever is earlier. The lien also shall be prior to any unrecorded mortgage given prior to the commencement of the work of improvement, if the lien claimant has no actual notice of the mortgage before the commencement. Lien claimants who perform, furnish, or procure any labor, services, materials, plans, or specifications for an improvement prior to the visible commencement of the work of improvement shall have lien rights, but shall have only the priority accorded to other lien claimants.

(5)   Assignment of lien, garnishment. Assignment of a claim or right to a lien or any part thereof by a prime contractor, or garnishment by the creditor of a prime contractor, subcontractor, supplier, service provider, laborer or mechanic, shall not operate to compel the owner, prime contractor, subcontractor, supplier, or service provider to pay the assignee or creditor until the lien claims of subcontractors, suppliers, service providers, and laborers under this subchapter have either been paid in full, matured by notice and filing or expired. If such claims become liens, the owner, prime contractor, subcontractor, supplier, or service provider shall be compelled to pay such assignee or creditor only what remains due in excess of such liens.

A lien did not accrue by virtue of a surveyor's placement of stakes indicating the street layout, although performed before the mortgage was recorded, as staking is not a visible commencement of improvement work. Mortgage Associates v. Monona Shores, 47 Wis. 2d 171 , 177 N.W.2d 340 (1970).

Public policy does not require that financial institutions notify contractors that the owner is or may be in default. Mortgage Associates v. Monona Shores, 47 Wis. 2d 171 , 177 N.W.2d 340 (1970).

In a complaint seeking to foreclose a construction lien on a municipal arena, allegations that the lessee of the arena was acting as the city's agent in contracting for improvements to the arena was sufficient to withstand demurrer. James W. Thomas Construction Co., Inc. v. Madison, 79 Wis. 2d 345 , 255 N.W.2d 551 (1977).

An architects' lien was unenforceable prior to the visible commencement of construction. Goebel v. National Exchangors, Inc. 88 Wis. 2d 596 , 277 N.W.2d 755 (1979).

A prospective buyer under a purchase contract was not an “owner" under sub. (2) (d) [now sub. (2) (c)]. C. R. Stocks, Inc. v. Blakely's Matterhorn, Inc. 90 Wis. 2d 118 , 279 N.W.2d 499 (Ct. App. 1979).

A lien for work performed after the owner's ex-spouse docketed a judgment against the owner related back to earlier work completed and paid in full under a different contract. Estate of Riese v. Weber, 132 Wis. 2d 215 , 389 N.W.2d 640 (Ct. App. 1986).

Construction lien claimants' rights against purchase contract interests: The role of equitable conversion. 1980 WLR 615.