PRESIDING JUSTICE BUCKLEY delivered the opinion of the court:
This appeal arises from an order of the trial court granting
plaintiff-homeowners' motion for summary judgment. On appeal,
the following issue is raised: whether an owner's demand pursuant
to section 34 of the Illinois Mechanics Lien Act (the Act) (770
ILCS 60/34 (West 1996)) to a contractor to file suit to enforce
the contractor's lien within 30 days is effective in causing
the contractor's lien rights to be forfeited if the contractor
fails to file a lawsuit as required in the demand, even if the
contractor had not yet filed a lien with the county recorder's
The facts of the case are undisputed. Plaintiffs, Leszek and
Marie Krzyminski, are the owners of a residence located at 1007
Blacksmith Lane, Lemont, Illinois. Defendant, Joe Dziadkowiec,
is a general contractor. On or about June 15, 1994, the parties
entered into a contract for construction work on plaintiffs'
property. By December 1995, more than six months had passed since
defendant had performed any work on plaintiffs' property. Plaintiffs
issued a demand pursuant to section 34 of the Act (770 ILCS 60/34
(West 1996)) for defendant to file a lawsuit to enforce his lien
within 30 days. Defendant failed to respond to plaintiffs' demand.
On March 19, 1996, plaintiffs issued a demand on defendant to
issue a release of his claim for lien within 10 days pursuant
to section 35 of the Act (770 ILCS 60/35 (West 1996)).
Defendant refused to issue a release and plaintiffs filed this
action on May 22, 1996, for the purpose of obtaining a court
order clearing the cloud of title to their property from defendant's
Defendant never recorded a claim for lien with the county recorder's
office prior to plaintiffs' demands.
The instant dispute arises over the interpretation of sections
34 and 35 of the Act (770 ILCS 60/34, 35 (West 1996)). Defendant
claims that this is a case of first impression in Illinois since
no court has ever applied the Act to a situation where the contractor
had not recorded his claim for lien prior to the demand that
he institute a suit to enforce his lien.
Section 34 reads as follows:
"Upon written demand of the owner, *** served on the person
claiming the lien, *** requiring suit to be commenced to enforce
the lien or answer to be filed in a pending suit, suit shall
be commenced or answer filed within 30 days thereafter, or the
lien shall be forfeited." 770 ILCS 60/34 (West 1996).
Section 35 provides the following:
"Whenever a claim for lien has been filed with the recorder
or the Registrar of Titles, either by the contractor or sub-contractor,
*** or where there is a failure to institute suit to enforce
the same afterdemand, as provided in the preceding section, within
the time by this Act limited, the person filing the same ***
shall acknowledge satisfaction or release thereof, in writing,
on written demand of the owner, and on neglect to do so for 10
days after such written demand he shall be liable to the owner
for the sum of $25, which may be recovered in a civil action."
770 ILCS 60/35 (West 1996).
"It has been stated that the notice provision in section
34 is jurisdictional, and section 34 is in the nature of a statute
of limitations and was intended to force the issue on the validity
of claims filed." Pickus Construction & Equipment Co.
v. Bank of Waukegan, 158 Ill. App. 3d 141, 144, 511 N.E.2d 228,
230 (1987). Moreover, defendant insists that the provisions of
section 35 must be read together. Thus, the second part of the
section ("where there is a failure to institute suit to
enforce the same") is clearly referring to a claim for lien
that has already been filed with the recorder, as specified in
the first part of the section ("[w]henever a claim for lien
has been filed with the recorder"). 770 ILCS 60/35 (West
Accordingly, the purpose of sections 34 and 35 of the Act is
to provide a method for property owners to force the issue on
the validity of claims already filed and to clear a cloud on
the owner's property created by the filing of a lien. If a claim
for lien has not been filed by the contractor, then there is
no cloud upon the owner's title.
We also note that the Act gives a general contractor two years
from the last day that the contractor completed any work on the
job to file his claim for lien as against the property owner.
770 ILCS 60/7 (West 1996). According to plaintiffs' theory, a
property owner could use sections 34 and 35 of the Act to deny
contractors their lien rights long before the time has expired
in which a lien claim may be filed. To permit a property owner
to require a contractor to file his suit to enforce his lien
rights prior to the contractor's recording of his claim for lien
would be contrary to the intent of the Act.
For the foregoing reasons, we reverse the circuit court of Cook
County's order granting summary judgment in favor of plaintiffs.
GALLAGHER, J., concurs.
Justice O'Brien, dissenting:
Section 34 clearly requires a "person claiming the lien"
to institute proceedings to prove his claim in court within 30
days of demand or risk forfeiture of that lien. 770 ILCS 60/34
(West 1996). Section 35 clearly mandates the release of a lien
where "a claim for lien has been filed" or where "there
is a failure to institute suit to enforce the same after demand."
770 ILCS 60/35 (West 1996). There are no provisions of either
section which mandate that an actual filing of a claim for lien
is a prerequisite to a demand by an owner pursuant to Sections
34 and 35.
The majority's holding, which requires an actual filing of a
claim for lien prior to any demand by the owner, permits a contractor
to maintain an ability to claim a lien on a property for two
years without being required to prove his claim within that time
period. Thus, an owner has no recourse other than waiting to
see what the contractor will do vis-a-vis a potential claim and
thus, the title of that property would remain clouded for that
period of time. Sections 34 and 35 of the Act clearly aim to
avoid this situation by providing owners of property with a remedy
to adjudicate a potential lien, avoid a cloud on the title of
that property and dispose of that property if the owner desires.
The judgement of the circuit court should be affirmed.
Accordingly, I respectfully dissent.