2A:44A-2 Definitions relative to construction liens.

2. As used in this act:

"Claimant" means a person having the right to file a lien claim on real property pursuant to this act.

"Community association" means a condominium association, a homeowners' association, a cooperative association, or any other entity created to administer or manage the common elements and facilities of a real property development that, directly or through an authorized agent, enters into a contract for improvement of the real property.

"Contract" means any agreement, or amendment thereto, in writing, signed by the party against whom the lien claim is asserted and evidencing the respective responsibilities of the contracting parties, including, but not limited to, price or other consideration to be paid, and a description of the benefit or improvement to the real property subject to a lien. In the case of a supplier, "contract" shall include a delivery or order slip referring to the site or project to which materials have been delivered or where they were used and signed by the party against whom the lien claim is asserted or that party's authorized agent. As referenced herein: the phrase "party against whom the lien claim is asserted" means the party in direct privity of contract with the party asserting the lien claim; and the term "signed" means a writing that bears a mark or symbol intended to authenticate it.

"Contract price" means the amount specified in a contract for the provision of work, services, material or equipment.

"Contractor" means any person in direct privity of contract with the owner of real property, or with a community association in accordance with section 3 of P.L.1993, c.318 (C.2A:44A-3), for improvements to the real property. A construction manager who enters into a single contract with an owner or a community association for the performance of all construction work within the scope of a construction manager's contract, a construction manager who enters into a subcontract, or a construction manager who is designated as an owner's or community association's agent without entering into a subcontract is also a "contractor" for purposes of this act. A licensed architect, engineer or land surveyor or certified landscape architect who is not a salaried employee of the contractor, or the owner or community association, performing professional services related to the improvement of property in direct contract with the property owner shall be considered a "contractor" for the purposes of this act.

"County clerk" means the clerk of the county in which real property to be improved is situated.

"Day" means a calendar day unless otherwise designated.

"Dwelling" means a one-, two- or three-family residence that is freestanding or shares a party wall without common ownership interest in that party wall. A dwelling may be part of a real property development.

"Equipment" means any machinery or other apparatus, including rental equipment delivered to the site to be improved or used on the site to be improved, whether for incorporation in the improved real property or for use in the construction of the improvement of the real property. A lien for equipment shall arise only for equipment used on site for the improvement of real property, including equipment installed in the improved real property. In the case of rental equipment, the amount of any lien shall be limited to the rental rates as set forth in the rental contract.

"Filing" means the (1) lodging for record and (2) the indexing of the documents authorized to be filed or recorded pursuant to this act in the office of the county clerk in the county where the property subject to the lien is located, or, in the case of real property located in more than one county, in the office of the county clerk of each such county. A document that is "lodged for record" shall mean a document that is delivered to the county clerk and marked by the clerk with a date and time stamp or other mark indicating the date and time received.

"First tier lien claimant" means a claimant who is a contractor.

"Improvement" means any actual or proposed physical changes to real property resulting from the provision of work, services, or material by a contractor, subcontractor, or supplier pursuant to a contract, whether or not such physical change is undertaken, and includes the construction, reconstruction, alteration, repair, renovation, demolition or removal of any building or structure, any addition to a building or structure, or any construction or fixture necessary or appurtenant to a building or structure for use in conjunction therewith. "Improvement" includes, but is not limited to, excavation, digging, drilling, drainage, dredging, filling, irrigation, land clearance, grading or landscaping. "Improvement" shall not include the mining of minerals or removal of timber, gravel, soil, or sod which is not integral to or necessitated by the improvement to real property. "Improvement" shall not include public works or improvements to real property contracted for and awarded by a public entity. Any work or services requiring a license for performance including, but not limited to, architectural, engineering, plumbing or electrical construction, shall not constitute an improvement unless performed by a licensed claimant.

"Interest in real property" means any ownership, possessory security or other enforceable interest, including, but not limited to, fee title, easement rights, covenants or restrictions, leases and mortgages.

"Lien" or "construction lien" means a lien on the owner's interest in the real property arising pursuant to this act.

"Lien claim" means a claim, by a claimant, for money for the value of work, services, material or equipment furnished in accordance with a contract and based upon the contract price and any amendments thereto, that has been secured by a lien pursuant to this act. The term "value" includes retainage earned against work, services, materials or equipment furnished.

"Lien fund" means the pool of money from which one or more lien claims may be paid. The amount of the lien fund shall not exceed the maximum amount for which an owner can be liable. The amount of the lien that attaches to the owner's interest in the real property cannot exceed the lien fund.

"Material" means any goods delivered to, or used on the site to be improved, for incorporation in the improved real property, or for consumption as normal waste in construction operations; or for use on site in the construction or operation of equipment used in the improvement of the real property but not incorporated therein. The term "material" does not include fuel provided for use in motor vehicles or equipment delivered to or used on the site to be improved.

"Mortgage" means a loan which is secured by a lien on real property.

"Owner" or "owner of real property" means any person, including a tenant, with an interest in real property who personally or through an authorized agent enters into a contract for improvement of the real property. "Owner" or "owner of real property" shall not include a "community association" that holds record title to real property or has an interest in real property.

"Person" means an individual, corporation, company, association, society, firm, limited liability company, limited liability partnership, partnership, joint stock company or any other legal entity, unless restricted by the context to one or more of the above.

"Public entity" includes the State, and any county, municipality, district, public authority, public agency, and any other political subdivision or public body in the State.

"Real property development" means all forms of residential and non-residential real property development including, but not limited to, a condominium subject to the "Condominium Act," P.L.1969, c.257 (C.46:8B-1 et seq.), a housing cooperative subject to "The Cooperative Recording Act of New Jersey," P.L.1987, c.381 (C.46:8D-1 et al.), a fee simple townhouse development, a horizontal property regime as defined in section 2 of P.L.1963, c.168 (C.46:8A-2), and a planned unit development as defined in section 3.3 of P.L.1975, c.291 (C.40:55D-6).

"Residential construction," also referred to as "residential housing construction" or "home construction," means construction of or improvement to a dwelling, or any portion thereof, or any residential unit, or any portion thereof. In the case of a real property development, "residential construction" or "residential housing construction" or "home construction" also includes: (1) all offsite and onsite infrastructure and sitework improvements required by a residential construction contract, master deed, or other document; (2) the common elements of the development, which may also include by definition the offsite and onsite infrastructure and sitework improvements; and (3) those areas or buildings commonly shared.

"Residential construction contract" means a contract for the construction of, or improvement to, a dwelling, or dwellings or any portion thereof, or a residential unit, or units, or dwellings, or any portion thereof in a real property development.

"Residential purchase agreement" means a contract between a buyer and a seller for the purchase of a dwelling, or dwellings or a residential unit or units in a real property development.

"Residential unit" means a unit in a real property development designed to be transferred or sold for use as a residence, and the design evidenced by a document, such as a master deed or declaration, recorded with the county clerk in the county where the real property is located, or a public offering statement filed with the Department of Community Affairs. "Residential unit" includes a unit designed to be transferred or sold for use as a residence that is part of a multi-use or mixed use development project. "Residential unit" shall not include a unit designed for rental purposes or a unit designed to be transferred or sold for non-residential use.

"Second tier lien claimant" means a claimant who is, in relation to a contractor: (1) a subcontractor; or (2) a supplier.

"Services" means professional services performed by a licensed architect, engineer, land surveyor, or certified landscape architect, who is not a salaried employee of the contractor, a subcontractor or the owner and who is in direct privity of contract with the owner for the preparation of plans, documents, studies, or the provision of other services by a licensed architect, engineer or land surveyor prepared in connection with improvement to real property, whether or not such improvement is undertaken.

"State" means the State of New Jersey and any office, department, division, bureau, board, commission or agency of the State.

"Subcontractor" means any person providing work or services in connection with the improvement of real property pursuant to a contract with a contractor or pursuant to a contract with a subcontractor in direct privity of contract with a contractor.

"Supplier" means any supplier of material or equipment, including rental equipment, having a direct privity of contract with an owner, community association, contractor or subcontractor in direct privity of contract with a contractor. The term "supplier" shall not include a person who supplies fuel for use in motor vehicles or equipment delivered to or used on the site to be improved or a seller of personal property who has a security agreement providing a right to perfect either a security interest pursuant to Title 12A of the New Jersey Statutes or a lien against the motor vehicle pursuant to applicable law.

"Third tier lien claimant" means a claimant who is a subcontractor to a second tier lien claimant or a supplier to a second tier lien claimant.

"Work" means any activity, including, but not limited to, labor, performed in connection with the improvement of real property. The term "work" includes architectural, engineering or surveying services provided by salaried employees of a contractor or subcontractor, as part of the work of the contractor or subcontractor, provided, however, that the right to file a lien claim for those services shall be limited to the contractor or subcontractor.

L.1993, c.318, s.2; amended 1995, c.392, s.1; 2010, c.119, s.1.