Mechanics Lien Subordination: Illinois Further Limits Construction Lenders’ Ability To Ensure Priority Against Mechanics Liens

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Mechanics Lien Subordination: Illinois Further Limits Construction Lenders’ Ability To Ensure Priority Against Mechanics Liens Article By Michael J. Roth

On July 16, 2014, Illinois enacted Public Act 98-764 (Senate Bill 3023) (SB 3023), which amends the illinois mechanics lien act (770 ILCS 60/ et seq.) (the Act) to prohibit subordination of mechanics liens on Illinois construction projects, unless such subordination is to a construction mortgage lien made after 50% of the construction loan has been disbursed to fund construction costs.

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Judgment liens are frequently junior to a first mortgage and possibly a second mortgage, as well as perhaps other judgment liens previously filed by other creditors. (Learn more about lien priority.) priority determines How Foreclosure Funds Are Distributed. The priority of liens establishes who gets paid first following a foreclosure sale.

Subordination Construction Loans. Nevada law says mechanic’s liens attach to the construction site. A construction lender wants to ensure that its deed of trust securing the construction.

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Avoiding Mechanic’s Liens — Option 2: Get a Lien Waiver Another way to avoid mechanic’s liens is to have the contractor get lien waivers from everyone who the contractor is responsible for paying. In many states, a contractor must provide a waiver for all work for which the contractor has been paid before accepting further payments from the owner.

On July 16, 2014, Illinois enacted Public Act 98-764 (Senate Bill 3023) ("SB 3023"), which amends the Illinois Mechanics Lien Act (770 ILCS 60/ et seq.) (the "Act") to prohibit subordination of mechanics liens on Illinois construction projects, unless such subordination is to a construction mortgage lien made after 50% of the construction loan has been disbursed to fund construction.

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decision by requiring contractors and subcontractors to subordinate their mechanics lien rights to construction lenders. An enforceable subordination clause gives a lender a priority claim to all proceeds generated by a foreclosure until its mortgage balance, accrued interest, attorneys’ fees and costs have been paid in full.

The provisions of the Illinois statutes that permit the filing of mechanics liens and materialmen’s liens can be found in Illinois’s Mechanics Lien Act, Illinois Code 770 ILCS 60/0.01 et. seq. The full text of the Illinois Construction Lien Law is provided below, and has been updated as of 2016.