One of the strict requirements of the Illinois Mechanics Lien Act (the "Act") is that the mechanics lien claim must be verified by the affidavit of the contractor, or his or her agent, or employee. 770 ILCS 60/7, Tefco Construction Company Inc. v. Continental Community Bank and Trust Company, 357 Ill.App.3d 714, 719 (1st Dist. 2005). Because a mechanics lien claimant has the burden of proving that the strict requirements of the Act have been satisfied, claimants should be sure that their claims contain a proper oath or affirmation in writing. Illinois cases have addressed the definition of a verification under Section 7 and have held that verification means that a claim for lien must be supported by an oath or affirmation in writing. Tefco Construction 357 Ill.App.3d at 719. The Illinois Appellate Court in Tefco Construction held that a claim for lien cannot be enforceable if the claim lacks a verification. Id.
Oaths and Affidavits
Opposing mechanics lien counsel, in this current economic climate, will most certainly be reviewing and construing the verifications of mechanics lien claims under Tefco Construction in order to determine their validity rather than fund settlements. Illinois law has defined an "oath" as an appeal by a person to God to witness the truth of what he or she declares and in its broadest sense it includes any form of attestation by which a party signifies that he is bound in conscience to act truthfully. Weydert Homes Inc. v. Kammes, 395 Ill.App.3d 512, 518 (2d Dist. 2009) citing, In Re Petition for Removal of Rice, 35 Ill.App.2d 79 (Ill. 1962). Practitioners must be careful with the form of the verification in their mechanics lien because legal commentators have now recognized a distinction between "oaths and affidavits." An oath has been defined as any form of attestation by which a person signifies that he or she is bound in conscience to perform an act faithfully and truthfully. An oath is subject to the requirements of the Oaths and Affirmation Act. 5 ILCS 255/1 et seq. The Oaths and Affirmation Act provides that whenever a person is required to take an oath, it shall be administered by a person so empowered – namely a court, judge, clerk of court, county clerk, deputy county clerk, secretary of state, notary public, person certified under the Illinois Certified Shorthand Reporter's Act of 1984 or a commissioned officer in the act of service of the armed forces of the United States. See 5 ILCS 255/3, 255 ILCS 415/1 and 5 ILCS 255/2.
An affidavit is a voluntarily written statement of fact under oath sworn to or affirmed by the person making it before some person who has official authority under the law to administer oaths and to officially certify that the oath was made under his or her seal of office. The difference between an affidavit and an oath is that an affidavit consists of a statement of fact which is sworn to as true, while an oath is a pledge. An affidavit is a written declaration under oath sworn to before a person with authority under the law to administer oaths. Brennan v. Kolman 335 Ill.App.3d 716, 722 (IOL 2002). Section 7 of the Act requires "... a claim for lien, verified by the affidavit of himself or herself, or his or her agent or employee ... ."
Proper Verification Is Paramount
By strictly construing verifications of the mechanics lien under Section 7 of the Act, Illinois courts require claimants to make a statement in the recorded lien under penalty of perjury; this provides a much needed consequence to prevent the claimant from filing a frivolous mechanics lien claim under the Act. Tefco Construction supra. Even if a claimant's mechanics lien claim is meritorious, it will not change the consequences for failure to properly verify a mechanics lien claim. The failure to properly verify will result in the termination of that claim as the recording of a mechanics lien has a significant legal consequence as an encumbrance against the real estate. Therefore, contractors, owners, lenders and their employees in the construction industry should be trained to identify a proper verification to determine the validity of a mechanics lien.