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Is a residence considered owner occupied if the owners are not living there during remodeling

IllinoisLien DeadlinesPreliminary Notice

I recently placed an order for a NOI to lien. When I was hired as a sub-contractor the house was completely gutted(so no one lived there). Would I still need to do a 60 day preliminary notice when the owners moved out temporarily while construction was going on and only moved back in when the certificate of occupancy was issued by the village?

2 replies

Sep 10, 2017
Generally speaking, a property is "owner occupied" even though the owner may be out of the property while it is under-going construction. It is "owner occupied," in other words, if the owner of the property is also intending to occupy it as a homeowner after the job is completed.

As far as what Illinois requires specifically, it's not exactly clear. The statute requiring the Illinois 60-Day Notice to Owner does not do a good job of clearing this up. Here is what the statute says:

It shall be the duty of each subcontractor who has furnished...for an existing owner-occupied single family notify the occupant...

I think there may be some ambiguity around what is an "existing" occupied building, versus something else, but haven't been able to find much information about this in the law. Generally speaking, I would consider it occupied, but if push came to shove and it was threatening my client's lien right, and there was some potential gray area, I may advise that client to occupy the gray area for a little while, especially if the amount in controversy was high.

Sorry the answer here may not be black or white. Hope it helps.
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Sep 11, 2017
Scott has provided some good practical information here, regarding some potential gray area.

I think that here, the language related to "an existing owner-occupied single family residence" refers solely to whether or not the project is for the "new construction" of a residence or if the structure already exists. The related notice requirement is applicable when the project is on an existing (occupied residential) structure. The fact of whether or not the owner-occupier is currently in the building while the work is taking place is almost assuredly less relevant than the classification of the building before and after the work - i.e. is the home the owner's primary residence?
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