Contractor Affadavit

2 weeks ago

Is a Contractor Affadait required in order to lien a property in IL. We have a lien and the clients attorney is saying it is not enforceable since we did not give them a contractor’s affadavit before the work began.

Senior Legal Associate Levelset

Good question. Illinois prime contractors don’t really have a traditional preliminary notice requirement, like subcontractors do in the state. However, if an owner requests that the contractor provide an affidavit under § 60/5 of the Illinois lien statute (more on that affidavit below), then a contractor must provide one in order to later preserve the right to lien.

Before receiving payment, § 60/5(a) of the Illinois mechanics lien statute states that, if it’s requested by the owner, a contractor must provide a list of “the names and addresses of all parties furnishing labor, services, material, fixtures, apparatus or machinery, forms or form work, and the amounts that are due or to become due to each.” Essentially, this is to put the owner on notice of all potential claims for payment by subcontractors, suppliers, laborers, etc. But, as mentioned above, it’s only required if the owner has first requested it. The first sentence of § 60/5(a) states that it’s the duty of the owner to request it.

In addition to the requirements above, under § 60/5(b), a prime contractor providing work on an owner-occupied single-family residence must also include a disclaimer within their contract with the owner alerting the owner of their right to request that list.

I hope this information was helpful! Keep in mind, an owner’s first instinct once a mechanics lien will often be to challenge the filed lien – but that doesn’t necessarily mean there’s any issue with the claim. Levelset explores that idea here: My Lien Was Challenged — What Do I Do?

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