By: Wentworth S.B. No. 1269
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
AN ACT
1-1 relating to mechanic's, contractor's, and materialman's liens.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Section 1(c), Chapter 87, Acts of the 56th
1-4 Legislature, Regular Session, 1959 (Article 7.19-1, Vernon's Texas
1-5 Insurance Code), is amended to read as follows:
1-6 (c) A bond that is made, given, tendered, or filed under
1-7 Chapter 53 or 62, Property Code, or Chapter 2253, Government Code,
1-8 may be executed only by a surety company that is authorized and
1-9 admitted to write surety bonds in this state. If the amount of the
1-10 bond exceeds $100,000, the surety must also:
1-11 (1) hold a certificate of authority from the United
1-12 States secretary of the treasury to qualify as a surety on
1-13 obligations permitted or required under federal law; or
1-14 (2) have obtained reinsurance for any liability in
1-15 excess of $100,000 from a reinsurer that is authorized and admitted
1-16 as a reinsurer in this state and is the holder of a certificate of
1-17 authority from the United States secretary of the treasury to
1-18 qualify as a surety or reinsurer on obligations permitted or
1-19 required under federal law.
1-20 SECTION 2. Section 28.007(b), Property Code, is amended to
1-21 read as follows:
1-22 (b) Nothing in this statute shall be interpreted to change
2-1 the rights and obligations set forth in Chapter 53 or 62, Property
2-2 Code.
2-3 SECTION 3. The heading of Chapter 53, Property Code, is
2-4 amended to read as follows:
2-5 CHAPTER 53. MECHANIC'S, CONTRACTOR'S, OR MATERIALMAN'S LIEN
2-6 ON RESIDENTIAL PROPERTY
2-7 SECTION 4. Sections 53.001(8) and (9), Property Code, are
2-8 amended to read as follows:
2-9 (8) "Residence" means a single-family house, duplex,
2-10 triplex, or quadruplex or a unit in a multiunit structure used for
2-11 residential purposes that is[:]
2-12 [(A)] owned by one or more adult persons[;] and
2-13 [(B)] used or intended to be used as a dwelling
2-14 by one of the owners. The term includes a new structure described
2-15 by this subdivision that is under construction to be sold and used
2-16 for the purposes described by this subdivision.
2-17 (9) "Residential construction contract" means a
2-18 contract between an owner and a contractor in which the contractor
2-19 agrees to [construct or] repair the owner's residence or construct
2-20 or repair[, including] improvements appurtenant to the residence.
2-21 SECTION 5. Subchapter A, Chapter 53, Property Code, is
2-22 amended by adding Section 53.004 to read as follows:
2-23 Sec. 53.004. APPLICABILITY. This chapter applies only to
2-24 real property on which a residence is located.
2-25 SECTION 6. Section 53.021(a), Property Code, is amended to
2-26 read as follows:
3-1 (a) A person has a lien if:
3-2 (1) the person labors, specially fabricates material,
3-3 or furnishes labor or materials for construction or repair in this
3-4 state of a residence or any improvements appurtenant to a
3-5 residence[:]
3-6 [(A) a house, building, or improvement;]
3-7 [(B) a levee or embankment to be erected for the
3-8 reclamation of overflow land along a river or creek; or]
3-9 [(C) a railroad]; and
3-10 (2) the person labors, specially fabricates the
3-11 material, or furnishes the labor or materials under or by virtue of
3-12 a contract with the owner or the owner's agent, trustee, receiver,
3-13 contractor, or subcontractor.
3-14 SECTION 7. Sections 53.022(a), (c), and (d), Property Code,
3-15 are amended to read as follows:
3-16 (a) The lien extends to the residence or any improvements
3-17 appurtenant to the residence [house, building, fixtures, or
3-18 improvements, the land reclaimed from overflow, or the railroad and
3-19 all of its properties, and to each lot of land necessarily
3-20 connected or reclaimed].
3-21 (c) A lien against land in a municipality [city, town, or
3-22 village] extends to each lot on which:
3-23 (1) the residence [house, building, or improvement] is
3-24 situated;
3-25 (2) any improvements appurtenant to the residence are
3-26 situated; or
4-1 (3) [on which] the labor was performed.
4-2 (d) A lien against land not in a municipality [city, town,
4-3 or village] extends to not more than 50 acres on which:
4-4 (1) the residence [house, building, or improvement] is
4-5 situated;
4-6 (2) any improvements appurtenant to the residence are
4-7 situated; or
4-8 (3) [on which] the labor was performed.
4-9 SECTION 8. Section 53.052(a), Property Code, is amended to
4-10 read as follows:
4-11 (a) Except as provided by Subsection (b), the person
4-12 claiming the lien must file an affidavit with the county clerk of
4-13 the county in which the property is located [or into which the
4-14 railroad extends] not later than the 15th day of the fourth
4-15 calendar month after the day on which the indebtedness accrues.
4-16 SECTION 9. Section 53.123(a), Property Code, is amended to
4-17 read as follows:
4-18 (a) Except as provided by this section, a mechanic's lien
4-19 attaches to the residence or any improvements appurtenant to the
4-20 residence [house, building, improvements, or railroad property] in
4-21 preference to any prior lien, encumbrance, or mortgage on the land
4-22 on which it is located, and the person enforcing the lien may have
4-23 the residence or any improvements appurtenant to the residence
4-24 [house, building, improvement, or any piece of the railroad
4-25 property] sold separately.
4-26 SECTION 10. Section 53.155, Property Code, is amended to
5-1 read as follows:
5-2 Sec. 53.155. TRANSFER OF PROPERTY SOLD. If the residence is
5-3 or any improvements appurtenant to the residence are [house,
5-4 building, improvement, or any piece of railroad property is] sold
5-5 separately, the officer making the sale shall place the purchaser
5-6 in possession. The purchaser is entitled to a reasonable time
5-7 after the date of purchase within which to remove the purchased
5-8 property.
5-9 SECTION 11. Subtitle B, Title 5, Property Code, is amended
5-10 by adding Chapter 62 to read as follows:
5-11 CHAPTER 62. MECHANIC'S, CONTRACTOR'S, OR MATERIALMAN'S
5-12 LIEN ON NONRESIDENTIAL PROPERTY
5-13 SUBCHAPTER A. GENERAL PROVISIONS
5-14 Sec. 62.001. DEFINITIONS. In this chapter:
5-15 (1) "Construction lender" means any mortgagee or
5-16 beneficiary under a deed of trust, including an assignee or
5-17 successor in interest of a mortgagee or beneficiary, who lends
5-18 funds for the cost of the construction, alteration, or repair of an
5-19 improvement.
5-20 (2) "Contract price" means the cost to the owner for
5-21 any part of construction or repair performed under an original
5-22 contract.
5-23 (3) "Improvement" includes:
5-24 (A) abutting sidewalks and streets and utilities
5-25 in or on those sidewalks and streets;
5-26 (B) clearing, grubbing, draining, or fencing of
6-1 land;
6-2 (C) wells, cisterns, tanks, reservoirs, or
6-3 artificial lakes or pools made for supplying or storing water;
6-4 (D) pumps, siphons, and windmills or other
6-5 machinery or apparatuses used for raising water for stock, domestic
6-6 use, or irrigation; and
6-7 (E) planting orchard trees, grubbing out
6-8 orchards and replacing trees, and pruning of orchard trees.
6-9 (4) "Labor" means labor used in the direct prosecution
6-10 of the work.
6-11 (5) "Material" means all or part of:
6-12 (A) the material, machinery, equipment,
6-13 fixtures, or tools incorporated into the work, consumed in the
6-14 direct prosecution of the work, or ordered and delivered for
6-15 incorporation or consumption;
6-16 (B) rent at a reasonable rate and actual running
6-17 repairs at a reasonable cost for construction equipment used or
6-18 reasonably required and delivered for use in the direct prosecution
6-19 of the work at the site of the construction or repair; or
6-20 (C) power, water, fuel, and lubricants consumed
6-21 or ordered and delivered for consumption in the direct prosecution
6-22 of the work.
6-23 (6) "Mechanic's lien" means the lien provided by this
6-24 chapter.
6-25 (7) "Original contract" means an agreement to which an
6-26 owner is a party either directly or by implication of law.
7-1 (8) "Original contractor" means a person contracting
7-2 with an owner either directly or through the owner's agent.
7-3 (9) "Owner" means a person, including a person's
7-4 successor in interest, who contracts for a building, structure, or
7-5 improvement to be constructed, altered, or repaired, whether the
7-6 interest or estate of the person is in fee simple or as a vendee
7-7 under a contract to purchase, as a lessee, or under another
7-8 interest or estate less than fee simple. If an interest or estate
7-9 in property is owned by two or more persons as community property
7-10 or is held by joint tenants or tenants-in-common, each person is
7-11 considered the owner.
7-12 (10) "Professional services" are the services
7-13 described by Title 10A, 52A, or 86, Revised Statutes, and performed
7-14 by a person registered or licensed under Title 10A, 52A, or 86,
7-15 Revised Statutes.
7-16 (11) "Residence" means a single-family house, duplex,
7-17 triplex, or quadruplex or a unit in a multiunit structure used for
7-18 residential purposes that is owned by one or more adult persons and
7-19 used or intended to be used as a dwelling by one of the owners.
7-20 The term includes a new structure described by this subdivision
7-21 that is under construction to be sold and used for the purposes
7-22 described by this subdivision.
7-23 (12) "Specially fabricated material" means material
7-24 fabricated for use as a component of the construction or repair so
7-25 as to be reasonably unsuitable for use elsewhere.
7-26 (13) "Subcontractor" means a person who has furnished
8-1 labor or materials to fulfill an obligation to an original
8-2 contractor or to a subcontractor to perform all or part of the work
8-3 required by an original contract.
8-4 (14) "Work" means any part of construction or repair
8-5 performed under an original contract.
8-6 Sec. 62.002. APPLICABILITY. This chapter applies to all
8-7 real property that is not residential property covered by Chapter
8-8 53.
8-9 Sec. 62.003. SUBSTANTIAL COMPLIANCE SUFFICIENT. This
8-10 chapter shall be liberally construed to promote the beneficial
8-11 interests and purposes of this chapter. Substantial compliance
8-12 with this chapter is sufficient to establish the validity of a lien
8-13 and to confer jurisdiction on the courts to enforce this chapter.
8-14 Sec. 62.004. NOTICES. (a) This section applies to notices
8-15 required by this chapter.
8-16 (b) Any notice or other written communication may be
8-17 delivered in person to the party entitled to receive the notice or
8-18 to that party's agent, regardless of the manner prescribed by law.
8-19 (c) If notice is sent by registered or certified mail,
8-20 addressed to the person entitled to receive the notice at the
8-21 person's residence or business address, deposit or mailing of the
8-22 notice in the United States mail in the form required constitutes
8-23 compliance with the notice requirement.
8-24 (d) If notice is personally delivered to the person entitled
8-25 to receive the notice, the notice may be delivered by a private
8-26 delivery company. Delivery under this subsection is complete at
9-1 the time the person receives the notice.
9-2 (e) If a written notice is received by the person entitled
9-3 to receive it, the method by which the notice is delivered is
9-4 immaterial.
9-5 (f) All notices shall be mailed or delivered prepaid.
9-6 Sec. 62.005. MORE THAN ONE ORIGINAL CONTRACTOR; ORIGINAL
9-7 CONTRACT. (a) On any work there may be more than one original
9-8 contractor for purposes of this chapter.
9-9 (b) This chapter does not affect the terms of a contract
9-10 between the owner and the original contractor relating to the
9-11 amount, manner, or time of payment of the contract price.
9-12 Sec. 62.006. OWNER'S LIABILITY. (a) An owner is liable for
9-13 payment in full for all labor, materials, or professional services
9-14 furnished or to be furnished for the owner's property.
9-15 (b) A claimant may establish and foreclose a lien under this
9-16 chapter for unpaid labor, materials, or professional services as
9-17 provided by this chapter.
9-18 Sec. 62.007. AGENT. A person who is, in whole or in part,
9-19 in charge or control of contracting for the construction,
9-20 alteration, or repair of any building, structure, or improvement is
9-21 the agent of the owner for the purposes of this chapter, and the
9-22 owner is liable for the reasonable value of labor or materials
9-23 furnished to the owner's agent.
9-24 Sec. 62.008. ATTORNEY'S FEES. In any action brought under
9-25 this chapter, the court shall award costs, any interest provided
9-26 for by law, and reasonable attorney's fees.
10-1 (Sections 62.009-62.020 reserved for expansion
10-2 SUBCHAPTER B. NOTICE OF COMMENCEMENT
10-3 Sec. 62.021. NOTICE OF COMMENCEMENT. (a) Except for an
10-4 original contract for the construction of a house, building,
10-5 structure, or improvement that exceeds $5,000, an owner or the
10-6 owner's authorized agent shall:
10-7 (1) record a notice of commencement in the office of
10-8 the county clerk of the county in which the property is located;
10-9 and
10-10 (2) post a certified copy of the notice or a notarized
10-11 document stating that the notice has been filed with a copy of the
10-12 notice attached.
10-13 (b) The notice of commencement must be recorded and posted
10-14 as required by Subsection (a) before work commences or before work
10-15 commences to complete any improvement after a default, termination,
10-16 abandonment, or cessation of work. This requirement applies
10-17 regardless of whether a project is covered by a payment bond that
10-18 complies with this chapter.
10-19 (c) The notice of commencement must contain the following
10-20 information:
10-21 (1) a legal description of the property and the street
10-22 address of the property or, if no street address is available,
10-23 additional information sufficient to describe the physical location
10-24 of the property;
10-25 (2) a general description of the improvement;
10-26 (3) the name and address of the owner and a
11-1 description of the owner's interest in the property;
11-2 (4) the name and address of the person who owns fee
11-3 simple title to the property, if different from the owner;
11-4 (5) the name and address of the contractor;
11-5 (6) the name and address of the surety on the payment
11-6 bond established under this chapter, if any, and the amount of the
11-7 bond;
11-8 (7) the name and address of any person making a loan
11-9 for the construction of the improvements; and
11-10 (8) the name and address of a person in this state,
11-11 other than the owner, who is designated by the owner as the person
11-12 on whom notices or other documents may be served under this
11-13 chapter.
11-14 (d) If the owner designates another person on whom notices
11-15 or other documents may be served, the failure by a claimant to
11-16 serve a notice or document on the person designated does not
11-17 invalidate an otherwise valid notice or lien.
11-18 (e) If the contract between the owner and a contractor named
11-19 in the notice of commencement provides for a period for completion
11-20 of the construction of the improvement that is longer than one
11-21 year, the notice of commencement must state that the notice is
11-22 effective for the applicable period.
11-23 (f) A notice of commencement must read substantially similar
11-24 to the following:
11-25 Permit No. _____
11-26 Issued by ______
12-1 NOTICE OF COMMENCEMENT
12-2 State of Texas
12-3 County of _________________
12-4 The undersigned hereby gives notice that
12-5 improvements will be made to certain real property, and
12-6 in accordance with Chapter 62, Property Code, the
12-7 following information is provided in this notice of
12-8 commencement.
12-9 1. Description of property _____________________
12-10 2. General description of improvement___________
12-11 _________________________________________________
12-12 3. Owner information:
12-13 a. Name and address ______________________
12-14 b. Interest in property __________________
12-15 _______________________________________
12-16 c. Name and address of person who owns fee
12-17 simple title (if other than owner)
12-18 _______________________________________
12-19 4. Contractor:
12-20 a. Name and address ______________________
12-21 _______________________________________
12-22 b. Phone number __________________________
12-23 c. Fax number ____________________________
12-24 (optional, if service by fax is
12-25 acceptable)
12-26 5. Surety:
13-1 a. Name and address ______________________
13-2 _______________________________________
13-3 b. Phone number __________________________
13-4 c. Fax number ____________________________
13-5 (optional, if service by fax is
13-6 acceptable)
13-7 d. Amount of bond $_______________________
13-8 6. Lender:
13-9 a. Name and address ______________________
13-10 _______________________________________
13-11 b. Phone number __________________________
13-12 c. Fax number ____________________________
13-13 (optional, if service by fax is
13-14 acceptable)
13-15 7. Each person in this state designated by owner
13-16 for service of notices or other documents:
13-17 a. Name and address ______________________
13-18 _______________________________________
13-19 b. Phone number __________________________
13-20 c. Fax number ____________________________
13-21 (optional, if service by fax is
13-22 acceptable)
13-23 8. Expiration date of notice of commencement
13-24 _________________________________________________
13-25 ____________________________ (Signature of owner)
13-26 Sworn to and subscribed before me this ______ day
14-1 of ____, (year) by ___________________________ (name of
14-2 person making statement).
14-3 ____________________________ (Signature and seal
14-4 of Notary Public--State of Texas)
14-5 (g) A copy of any bond provided must be attached at the time
14-6 the notice of commencement is filed.
14-7 (h) The notice of commencement is effective on the date the
14-8 notice is filed in the county clerk's office as provided by this
14-9 section.
14-10 (i) The owner must sign the notice of commencement. The
14-11 owner may not authorize another person to sign on the owner's
14-12 behalf.
14-13 Sec. 62.022. FAILURE TO BEGIN WORK. If the construction,
14-14 alteration, or repair of the improvement described in the notice of
14-15 commencement does not begin within 90 days after the date the
14-16 notice is recorded, the notice is void.
14-17 Sec. 62.023. NOTICE OF COMMENCEMENT NOT A LIEN. The
14-18 recording or posting of a notice of commencement does not
14-19 constitute a lien or encumbrance on real property. The notice of
14-20 commencement provides constructive notice that a claim for a lien
14-21 under this chapter may be recorded and may take priority over other
14-22 liens as provided by this chapter.
14-23 Sec. 62.024. EXPIRATION. Unless otherwise provided in the
14-24 notice of commencement, including an amended notice of
14-25 commencement, a notice of commencement is not effective after the
14-26 first anniversary of the date the notice of commencement is
15-1 recorded against:
15-2 (1) a conveyance, transfer, or mortgage of or lien on
15-3 the real property described in the notice; or
15-4 (2) a creditor or subsequent purchaser for a valuable
15-5 consideration.
15-6 Sec. 62.025. LENDER'S OBLIGATION. (a) Before disbursing
15-7 any construction funds to an owner or contractor, a construction
15-8 lender must record the notice of commencement in the office of the
15-9 county clerk of the county in which the property is located if the
15-10 owner has not filed the notice of commencement as required by
15-11 Section 62.021. The construction lender is not required to post a
15-12 certified copy of the notice at the construction site.
15-13 (b) If a construction lender fails to record the notice of
15-14 commencement as required by this section, the lender is liable to
15-15 the owner for all damages sustained by the owner as a result of the
15-16 failure to record the notice.
15-17 (c) A construction lender who records a notice of
15-18 commencement shall designate itself, in addition to others, as a
15-19 party entitled to receive copies of notices required to be provided
15-20 to the owner.
15-21 (d) This section does not give any person other than the
15-22 owner a claim or right of action against a construction lender for
15-23 failure to record a notice of commencement.
15-24 (Sections 62.026-62.050 reserved for expansion
15-25 SUBCHAPTER C. PRELIMINARY 45-DAY NOTICE
15-26 Sec. 62.051. PRELIMINARY 45-DAY NOTICE. (a) Except for a
16-1 person performing labor for wages, each person who furnishes labor,
16-2 materials, or professional services for which a lien may be claimed
16-3 under this chapter shall provide the owner or reputed owner, the
16-4 original contractor or reputed contractor, the construction lender,
16-5 if any, or reputed construction lender, if any, and the person with
16-6 whom the claimant has contracted for the purchase of the labor,
16-7 materials, or professional services with a written preliminary
16-8 45-day notice as prescribed by this section. A lien is not valid
16-9 unless the notice prescribed by this section is provided.
16-10 (b) A person claiming a lien under this chapter shall
16-11 provide the preliminary 45-day notice not later than the 45th day
16-12 after the date the claimant first furnishes labor, materials, or
16-13 professional services to the property. The notice may be provided
16-14 before the date the claimant first furnishes labor, materials, or
16-15 professional services.
16-16 (c) The notice must contain the following information:
16-17 (1) a general description of the labor, materials, or
16-18 professional services furnished or to be furnished;
16-19 (2) an estimate of the total price for the labor,
16-20 materials, or professional services;
16-21 (3) the name and address of the person furnishing the
16-22 labor, materials, or professional services;
16-23 (4) the name of the person who contracted for the
16-24 purchase of the labor, materials, or professional services;
16-25 (5) the contract price or, if the contract is not for
16-26 a set amount, a description of the mechanism described by the
17-1 contract to determine the amount to be paid under the contract;
17-2 (6) a description of the property sufficient to
17-3 identify the property, including a legal description, subdivision
17-4 plat, or street address; and
17-5 (7) the disclosures as provided by Subsection (d).
17-6 (d) The preliminary 45-day notice must read substantially
17-7 similar to the following:
17-8 PRELIMINARY 45-DAY LIEN NOTICE
17-9 In accordance with Chapter 62, Property Code,
17-10 this notice is not a lien and is not a reflection on
17-11 the integrity of any contractor or subcontractor.
17-12 This preliminary lien notice has been
17-13 completed by (name and address of claimant)
17-14 __________________________________________________
17-15 Date _____________________________________________
17-16 By _______________________________________________
17-17 Address _________________________________________
17-18 The name and address of the owner or reputed
17-19 owner is ______________________________________________
17-20 The name and address of the original contractor
17-21 is ____________________________________________________
17-22 You are hereby notified that the claimant has
17-23 furnished or will furnish labor, materials, or
17-24 professional services of the following general
17-25 description: __________________________________________
17-26 The name and address of any
18-1 lender or reputed lender, including an assignee,
18-2 is ____________________________________________________
18-3 The construction, alteration, or repair is
18-4 or will be provided for the building, structure, or
18-5 improvement located at ___________________________
18-6 and situated on the real property located
18-7 in ______________ County, Texas, described as follows:
18-8 _______________________________________________________
18-9 The name and address of the
18-10 person with whom the claimant has contracted
18-11 is ____________________________________________________
18-12 Check all applicable:
18-13 (____) The contract is for a fixed estimated
18-14 amount and the estimate of the total price of the
18-15 labor, materials, or professional services, or tools
18-16 furnished or to be furnished, is $______________.
18-17 (____) The contract is for a variable amount or
18-18 it is for a fixed and variable amount. The variable
18-19 amount is computed based on the following
18-20 mechanism: ______________________________. As of this
18-21 date, the estimated amount for purposes of this notice
18-22 is $_________, but this amount may change.
18-23 (The following statement must be printed in
18-24 10-point boldfaced type.)
18-25 NOTICE TO PROPERTY OWNER
18-26 If bills are not paid in full for the labor,
19-1 materials, or professional services furnished, or to be
19-2 furnished, the person to whom payment is owed may claim
19-3 a mechanic's lien against all or part of your property
19-4 and is entitled to foreclose on all or part of your
19-5 property to recover the amount due. To protect
19-6 yourself against this consequence you should:
19-7 1. require your contractor to furnish a
19-8 conditional waiver and release as provided by Chapter
19-9 62, Property Code, signed by the person giving you this
19-10 notice before you make any payment to your contractor.
19-11 2. require your contractor to furnish an
19-12 unconditional waiver and release as provided by Chapter
19-13 62, Property Code, signed by the person giving you this
19-14 notice after you make a payment to your contractor.
19-15 3. use any similar method or device that is
19-16 appropriate under the circumstances.
19-17 (The following language must be printed in a type
19-18 at least as large as the largest type used in the
19-19 document:)
19-20 Not later than the 10th day after the date this
19-21 preliminary 45-day notice is received by the owner or
19-22 other interested party, the recipient shall:
19-23 (1) furnish all information necessary to
19-24 correct any inaccuracies in the notice or forfeit the
19-25 right to claim any inaccuracy of that information as a
19-26 defense to a claim under this chapter; and
20-1 (2) provide to the person who has given
20-2 the preliminary 45-day notice a copy of the payment
20-3 bond, if any payment bond has been recorded in
20-4 compliance with Chapter 62, Property Code, including
20-5 the name and address of the surety company and bonding
20-6 agent providing the payment bond.
20-7 If the owner or other interested party fails to
20-8 provide the bond information within the 10-day period,
20-9 the claimant shall retain any rights that the claimant
20-10 would be precluded or prejudiced from asserting in a
20-11 claim against the bond if the loss of the right is a
20-12 direct result of the owner's or other interested
20-13 party's failure to provide the bond information.
20-14 Date __________________________
20-15 _______________________________ (Company name)
20-16 By ____________________________ (Signature)
20-17 _______________________________ (Title)
20-18 Acknowledgment of receipt of
20-19 preliminary 45-day notice
20-20 This acknowledges receipt on _________________
20-21 (insert date) of a copy of the preliminary 45-day
20-22 notice at ______________________ (insert address).
20-23 Date ____________ (Date this acknowledgment is
20-24 executed)
20-25 ___________________________________ (Signature of
20-26 person acknowledging receipt, with title if
21-1 acknowledgment is made on behalf of another person)
21-2 Sec. 62.052. ADDITIONAL OR AMENDED PRELIMINARY 45-DAY
21-3 NOTICE. (a) If labor, materials, or professional services are
21-4 furnished to property by a person who does not provide a
21-5 preliminary 45-day notice as required by Section 62.051, the person
21-6 is not precluded from giving a preliminary 45-day notice as
21-7 prescribed by this subchapter after furnishing additional labor,
21-8 materials, or professional services to the property. The person
21-9 may claim a lien only for the labor, materials, or professional
21-10 services furnished during the 45 days before the date the notice is
21-11 provided.
21-12 (b) A person required by this subchapter to give notice to
21-13 the owner, to an original contractor, to the construction lender,
21-14 if any, and to the person with whom the claimant has contracted is
21-15 required to provide the notice only once to the owner, to the
21-16 original contractor, to the construction lender, if any, and to the
21-17 person with whom the claimant has contracted with respect to all
21-18 labor, materials, or professional services furnished or to be
21-19 furnished for the building, structure, or improvement, unless the
21-20 total price for the labor, materials, or professional services
21-21 furnished or to be furnished exceeds by 30 percent or more the
21-22 estimated total price in the preliminary 45-day notice. If the
21-23 total price for the labor, materials, or professional services
21-24 exceeds by 30 percent or more the estimated total price in the
21-25 preliminary 45-day notice and the labor, materials, or professional
21-26 services are furnished under multiple contracts with multiple
22-1 subcontractors, the person required to give a preliminary 45-day
22-2 notice is not required to provide additional notice.
22-3 (c) If a notice contains a general description of the labor,
22-4 materials, or professional services furnished up to the date of
22-5 notice as required by Section 62.051(c), the notice is not
22-6 defective because, after the date of the notice, the person giving
22-7 notice furnishes labor, materials, or professional services that
22-8 are not within the scope of the general description or the total
22-9 price of which exceeds by no more than 30 percent the estimated
22-10 total price in the notice. If a person giving the notice furnishes
22-11 or expects to furnish labor, materials, or professional services
22-12 the total price of which exceeds by more than 30 percent the
22-13 estimated total price in the original notice, the person shall give
22-14 an additional or amended notice for the labor, materials, or
22-15 professional services furnished or to be furnished. The failure to
22-16 give an additional or amended notice does not invalidate any
22-17 previous notice.
22-18 Sec. 62.053. OBLIGATION TO PROVIDE INFORMATION. (a) A
22-19 person or the person's agent who intends to file a preliminary
22-20 45-day notice may request information relating to the property from
22-21 the owner, contractor, construction lender, or other interested
22-22 party. The request must identify the person requesting the
22-23 information, the person's address, the property, and the general
22-24 nature of the person's labor, materials, or professional services
22-25 to which the preliminary 45-day notice applies.
22-26 (b) Not later than the 10th day after the date the owner,
23-1 contractor, construction lender, or other interested party receives
23-2 a request for information under this section or receives a
23-3 preliminary 45-day notice, the recipient shall furnish the person
23-4 requesting the information or providing the notice a written
23-5 statement containing the following information:
23-6 (1) a description of the property sufficient to
23-7 identify the property, including a legal description, subdivision
23-8 plat, or street address;
23-9 (2) the name and address of the owner or reputed
23-10 owner;
23-11 (3) the name and address of the original contractor or
23-12 reputed contractor;
23-13 (4) the name and address of the construction lender,
23-14 if any, or reputed construction lender; and
23-15 (5) if any payment bond has been recorded under this
23-16 chapter, a copy of the bond and the name and address of the surety
23-17 company and bonding agent, if any, providing the payment bond.
23-18 (c) Failure of the owner, contractor, construction lender,
23-19 or other interested party to furnish the information required by
23-20 this section does not excuse any claimant from timely providing a
23-21 preliminary 45-day notice.
23-22 (d) An owner, contractor, construction lender, or other
23-23 interested party who fails to provide information as required by
23-24 this section may not raise as a defense to a claim any inaccuracy
23-25 of the information in a preliminary 45-day notice that would have
23-26 been accurate if the information had been provided.
24-1 Sec. 62.054. OBLIGATION TO CORRECT INFORMATION. (a) If the
24-2 information is received by the claimant after the claimant has
24-3 given a preliminary 45-day notice and the information contained in
24-4 the preliminary 45-day notice is inaccurate, the claimant shall
24-5 provide an amended preliminary 45-day notice in the manner provided
24-6 by this section not later than the 30th day after the date the
24-7 information is received.
24-8 (b) The amended preliminary 45-day notice is considered to
24-9 be provided on the date the original preliminary 45-day notice was
24-10 provided, except that the amended preliminary 45-day notice is
24-11 effective only for work performed, materials supplied, or
24-12 professional services rendered 45 days before the date of the
24-13 amended preliminary 45-day notice or the date the original
24-14 preliminary 45-day notice was provided to the owner, whichever
24-15 occurs first.
24-16 (c) If a payment bond has been recorded under this chapter
24-17 and the owner or other interested party fails to furnish a copy of
24-18 the bond and the other information as required by this subchapter,
24-19 the claimant shall retain any rights that the claimant would be
24-20 precluded or prejudiced from asserting in a claim against the bond
24-21 if the loss of a right is a direct result of the owner's or other
24-22 interested party's failure to provide the bond or other
24-23 information.
24-24 Sec. 62.055. PROOF OF SERVICE OF NOTICE. (a) A person
24-25 required to provide a preliminary 45-day notice shall provide proof
24-26 that the notice was provided as prescribed by this subchapter by
25-1 producing an acknowledgment of receipt of the notice that reads
25-2 substantially similar to the following:
25-3 ACKNOWLEDGMENT OF RECEIPT OF PRELIMINARY 45-DAY NOTICE
25-4 This acknowledges receipt on ____________________
25-5 (insert date) of a copy of the preliminary 45-day
25-6 notice at ________________________________ (insert
25-7 address).
25-8 Date: _______________ (Date this acknowledgment
25-9 is executed)
25-10 ____________________________ (Signature of person
25-11 acknowledging receipt, with title if acknowledgment is
25-12 made on behalf of another person)
25-13 (b) If a person to whom the notice is served fails to
25-14 complete the acknowledgment or fails to complete and return the
25-15 acknowledgment within 30 days from the date of mailing, proof of
25-16 service may be provided by an affidavit of the person sending the
25-17 notice, showing the time, place, and manner of mailing and stating
25-18 the facts demonstrating that the service was made as prescribed by
25-19 this subchapter. The affidavit must state the name and address of
25-20 the person to whom a copy of the preliminary 45-day notice was sent
25-21 and, if appropriate, the title or capacity in which the person was
25-22 given the notice. If the mailing was by certified or registered
25-23 mail, the receipt of certification or registration must be attached
25-24 to the affidavit. If service was made by personal service or a
25-25 private delivery company, the receipt supplied by the person making
25-26 personal service or the acknowledgment from the delivery company
26-1 stating that the delivery was made must be attached to the
26-2 affidavit.
26-3 (Sections 62.056-62.080 reserved for expansion
26-4 SUBCHAPTER D. PERSONS ENTITLED TO LIEN; SUBJECT PROPERTY
26-5 Sec. 62.081. PERSONS ENTITLED TO LIEN. (a) A person has a
26-6 lien if:
26-7 (1) the person labors, specially fabricates material,
26-8 or furnishes labor, materials, or professional services for
26-9 construction, alteration, or repair in this state of:
26-10 (A) a house, building, or improvement;
26-11 (B) a levee or embankment to be erected for the
26-12 reclamation of overflow land along a river or creek; or
26-13 (C) a railroad; and
26-14 (2) the person labors, specially fabricates the
26-15 material, furnishes labor or materials, or provides professional
26-16 services under or by virtue of a contract with the owner or the
26-17 owner's agent, trustee, receiver, contractor, or subcontractor.
26-18 (b) A person who specially fabricates material has a lien
26-19 even if the material is not delivered.
26-20 (c) A person who provides professional services, but who
26-21 does not hold a certificate of license or registration under Title
26-22 10A, 52A, or 86, Revised Statutes, may not claim a lien under this
26-23 chapter.
26-24 Sec. 62.082. PROPERTY TO WHICH LIEN EXTENDS. (a) The lien
26-25 extends to the house, building, fixtures, or improvements, the land
26-26 reclaimed from overflow, or the railroad and all of its properties,
27-1 and to each lot of land necessarily connected or reclaimed.
27-2 (b) The lien does not extend to abutting sidewalks, streets,
27-3 and utilities that are public property.
27-4 (c) A lien against land in a municipality extends to each
27-5 lot on which the house, building, or improvement is situated or on
27-6 which the labor was performed.
27-7 (d) A lien against land not in a municipality extends to not
27-8 more than 50 acres on which the house, building, or improvement is
27-9 situated or on which the labor was performed.
27-10 Sec. 62.083. PAYMENT SECURED BY LIEN. The lien secures
27-11 payment for:
27-12 (1) the labor performed or materials furnished for the
27-13 construction, alteration, or repair;
27-14 (2) the specially fabricated material, even if the
27-15 material has not been delivered or incorporated into the
27-16 construction, alteration, or repair; or
27-17 (3) the professional services provided.
27-18 Sec. 62.084. SHAM CONTRACT. (a) A person who labors,
27-19 specially fabricates materials, or furnishes labor, materials, or
27-20 professional services under a direct contractual relationship with
27-21 another person is considered to be in direct contractual
27-22 relationship with the owner and has a lien as an original
27-23 contractor, if:
27-24 (1) the owner contracted with the other person for the
27-25 construction or repair of a house, a building, or improvements and
27-26 the owner can effectively control that person through ownership of
28-1 voting stock, interlocking directorships, or otherwise;
28-2 (2) the owner contracted with the other person for the
28-3 construction or repair of a house, a building, or improvements and
28-4 that other person can effectively control the owner through
28-5 ownership of voting stock, interlocking directorships, or
28-6 otherwise; or
28-7 (3) the owner contracted with the other person for the
28-8 construction or repair of a house, a building, or improvements and
28-9 the contract was made without good faith intention of the parties
28-10 that the other person was to perform the contract.
28-11 (b) In this section, "owner" does not include a person who
28-12 has or claims a security interest only.
28-13 (Sections 62.085-62.100 reserved for expansion
28-14 SUBCHAPTER E. WAIVER OF LIEN
28-15 Sec. 62.101. WAIVER OF LIEN. (a) An owner or contractor by
28-16 any term of its contract, or otherwise, may not waive or impair the
28-17 claims or liens of other persons whether with or without notice
28-18 except by written consent as prescribed by this subchapter. Any
28-19 term of the contract to that effect is void.
28-20 (b) Any written consent to a waiver given by any person is
28-21 unenforceable unless the person executes and delivers a waiver and
28-22 release as prescribed by this subchapter.
28-23 (c) The waiver and release is effective to release the
28-24 property for the benefit of the owner, the construction lender, the
28-25 contractor, and the surety on a payment bond from claims and liens
28-26 only if:
29-1 (1) the waiver and release follows substantially one
29-2 of the forms prescribed by this subchapter;
29-3 (2) the waiver is signed by the claimant or the
29-4 claimant's authorized agent; and
29-5 (3) in the case of a conditional release, there is
29-6 evidence of payment to the claimant.
29-7 (d) Evidence of payment may be by the claimant's endorsement
29-8 on a single or joint payee check that is paid by the bank on which
29-9 it is drawn or by written acknowledgment of payment given by the
29-10 claimant.
29-11 Sec. 62.102. CONDITIONS FOR WAIVER, RELEASE, OR IMPAIRMENT
29-12 OF CLAIM. (a) An oral or written statement purporting to waive,
29-13 release, or otherwise adversely affect a claim is not enforceable
29-14 and does not create an estoppel or impairment of a claim unless the
29-15 written waiver and release complies with this subchapter or the
29-16 claimant has actually received payment in full for the claim.
29-17 (b) This section does not affect the enforceability of an
29-18 accord and satisfaction regarding a bona fide dispute or any
29-19 agreement made in settlement of an action pending in any court if
29-20 the accord and satisfaction or agreement and settlement make
29-21 specific reference to the mechanic's lien or bond claims.
29-22 Sec. 62.103. PRESCRIBED FORMS FOR WAIVER AND RELEASE OF
29-23 CLAIM. The waiver and release given by any claimant is
29-24 unenforceable unless it substantially follows the forms provided in
29-25 Subdivisions (1)-(4) in the respective situations.
29-26 (1) If the claimant is required to execute a waiver
30-1 and release in exchange for or to induce the payment of a progress
30-2 payment and the claimant is not paid in exchange for the waiver and
30-3 release or a single payee check or joint payee check is given in
30-4 exchange for the waiver and release, the waiver and release must
30-5 read substantially similar to the following:
30-6 CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
30-7 Project ___________________
30-8 Job No. ___________________
30-9 On receipt by the undersigned of a check
30-10 from ________________ (maker of check) in the
30-11 sum of $__________ (amount of check) payable
30-12 to _____________________ (payee or payees of
30-13 check) and when the check has been properly endorsed
30-14 and has been paid by the bank on which it is drawn,
30-15 this document becomes effective to release any
30-16 mechanic's lien, any state or federal statutory bond
30-17 right, any private bond right, any claim for payment,
30-18 and any rights under any similar ordinance, rule, or
30-19 statute related to claim or payment rights for persons
30-20 in the undersigned's position that the undersigned
30-21 has on the property of ________________ (owner)
30-22 located at ______________________ (location) to
30-23 the following extent ______________________ (job
30-24 description).
30-25 This release covers a progress payment for all
30-26 labor, services, equipment, or materials furnished to
31-1 the property or to __________________, (person with
31-2 whom undersigned contracted) on or before ____________
31-3 (date) and does not cover any retention, pending
31-4 modifications and changes, or items furnished on,
31-5 before, or after that date. Retention and pending
31-6 modifications and changes furnished on or before the
31-7 above date total ______________.
31-8 Before any recipient of this document relies on
31-9 this document, the recipient should verify evidence of
31-10 payment to the undersigned.
31-11 The undersigned warrants that the undersigned
31-12 either has already paid or will use the funds received
31-13 from this progress payment to promptly pay in full all
31-14 of the undersigned's laborers, subcontractors,
31-15 materialmen, and suppliers for all work, materials,
31-16 equipment, or services provided for or to the above
31-17 referenced project up to the date of this waiver.
31-18 Date ____________________________
31-19 _________________________________ (Company name)
31-20 By ______________________________ (Signature)
31-21 _________________________________ (Title)
31-22 (2) If the claimant is required to execute a waiver
31-23 and release in exchange for or in order to induce the payment of a
31-24 progress payment and the claimant asserts in the waiver that the
31-25 claimant has been paid the progress payment, the waiver and release
31-26 must read substantially similar to the following:
32-1 UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
32-2 Project ___________________
32-3 Job No. ___________________
32-4 The undersigned has been paid and has received
32-5 a progress payment in the sum of $___________ for
32-6 all labor, services, equipment, or material furnished
32-7 to the property or to _____________________ (person
32-8 with whom undersigned contracted) on the
32-9 property of _______________________ (owner) located
32-10 at ______________________ to the following
32-11 extent ______________________ (job description) and
32-12 does hereby release any mechanic's lien, any state or
32-13 federal statutory bond right, any private bond right,
32-14 any claim for payment, and any rights under any similar
32-15 ordinance, rule, or statute related to claim or payment
32-16 rights for persons in the undersigned's position that
32-17 the undersigned has on the above referenced project to
32-18 the following extent.
32-19 This release covers a progress payment for all
32-20 labor, services, equipment, or materials furnished to
32-21 the property or to __________________, (person with
32-22 whom undersigned contracted) on or before ____________
32-23 (date) and does not cover any retention, pending
32-24 modifications and changes, or items furnished on,
32-25 before, or after that date. Retention and pending
32-26 modifications and changes furnished on or before the
33-1 above date total _____________.
33-2 The undersigned warrants that the undersigned
33-3 either has already paid or will use the funds received
33-4 from this progress payment to promptly pay in full all
33-5 of the undersigned's laborers, subcontractors,
33-6 materialmen, and suppliers for all work, materials,
33-7 equipment, or services provided for or to the above
33-8 referenced project up to the date of this waiver.
33-9 Date ____________________________
33-10 _________________________________ (Company name)
33-11 By ______________________________ (Signature)
33-12 _________________________________ (Title)
33-13 (Each unconditional waiver must contain the
33-14 following language printed in a type at least as large
33-15 as the largest type used in the document:)
33-16 NOTICE:
33-17 This document waives rights unconditionally and
33-18 states that you have been paid for giving up those
33-19 rights. This document is enforceable against you if
33-20 you sign it, even if you have not been paid. If you
33-21 have not been paid, use a conditional release form.
33-22 (3) If the claimant is required to execute a waiver
33-23 and release in exchange for or in order to induce payment of a
33-24 final payment and the claimant is not paid in exchange for the
33-25 waiver and release or a single payee check or joint payee check is
33-26 given in exchange for the waiver and release, the waiver and
34-1 release must read substantially similar to the following:
34-2 CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
34-3 Project ___________________
34-4 Job No. ___________________
34-5 On receipt by the undersigned of a check
34-6 from ________________ (maker of check) in the sum
34-7 of $____________ payable to _____________________
34-8 (payee or payees of check) and when the check has been
34-9 properly endorsed and has been paid by the bank on
34-10 which it is drawn, this document becomes effective to
34-11 release any mechanic's lien, any state or federal
34-12 statutory bond right, any private bond right, any
34-13 claim for payment, and any rights under any
34-14 similar ordinance, rule, or statute related to
34-15 claim or payment rights for persons in the
34-16 undersigned's position, the undersigned has on the
34-17 property of _____________________ (owner) located
34-18 at ______________________ to the following
34-19 extent ______________________ (job description).
34-20 This release covers the final payment to
34-21 the undersigned for all labor, services,
34-22 equipment, or materials furnished to the
34-23 property or to __________________, (person with
34-24 whom undersigned contracted) except for disputed
34-25 claims in the amount of $_________.
34-26 Before any recipient of this document relies on
35-1 the document, the recipient should verify evidence of
35-2 payment to the undersigned.
35-3 The undersigned warrants that the undersigned
35-4 either has already paid or will use the funds received
35-5 from this final payment to promptly pay in full all of
35-6 the undersigned's laborers, subcontractors,
35-7 materialmen, and suppliers for all work, materials,
35-8 equipment, or services provided for or to the above
35-9 referenced project up to the date of this waiver.
35-10 Date ____________________________
35-11 _________________________________ (Company name)
35-12 By ______________________________ (Signature)
35-13 _________________________________ (Title)
35-14 (4) If the claimant is required to execute a waiver
35-15 and release in exchange for or in order to induce payment of a
35-16 final payment and the claimant asserts in the waiver that the
35-17 claimant has been paid the final payment, the waiver and release
35-18 must read substantially similar to the following:
35-19 UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
35-20 Project ___________________
35-21 Job No. ___________________
35-22 The undersigned has been paid in full for all
35-23 labor, services, equipment, or materials furnished to
35-24 the property or to ___________________, (person
35-25 with whom undersigned contracted) on the
35-26 property of ______________________ (owner) located
36-1 at ______________________ to the following
36-2 extent ______________________ (job description) and
36-3 does hereby waive and release any right to a mechanic's
36-4 lien, any state or federal statutory bond right, any
36-5 private bond right, any claim for payment, and any
36-6 rights under any similar ordinance, rule, or statute
36-7 related to claim or payment rights for persons in the
36-8 undersigned's position, except for disputed claims for
36-9 extra work in the amount of $_________.
36-10 The undersigned warrants that the undersigned
36-11 either has already paid or will use the funds received
36-12 from this final payment to promptly pay in full all of
36-13 the undersigned's laborers, subcontractors,
36-14 materialmen, and suppliers for all work, materials,
36-15 equipment, or services provided for or to the above
36-16 referenced project.
36-17 Date ____________________________
36-18 _________________________________ (Company name)
36-19 By ______________________________ (Signature)
36-20 _________________________________ (Title)
36-21 (Each unconditional waiver must contain the
36-22 following language printed in a type at least as large
36-23 as the largest type used in the document:)
36-24 NOTICE:
36-25 This document waives rights unconditionally and
36-26 states that you have been paid for giving up those
37-1 rights. This document is enforceable against you if
37-2 you sign it, even if you have not been paid. If you
37-3 have not been paid, use a conditional release form.
37-4 Sec. 62.104. PUBLIC POLICY. (a) Notwithstanding any other
37-5 law and except as provided by Section 62.103, any contract,
37-6 agreement, or understanding waiving the right to file or enforce
37-7 any lien or claim created under this chapter is void as against
37-8 public policy.
37-9 (b) This section does not apply to a written agreement to
37-10 subordinate, release, or satisfy all or part of a lien claimed
37-11 after a notice of lien has been filed.
37-12 (Sections 62.105-62.120 reserved for expansion
37-13 SUBCHAPTER F. PROCEDURE TO PERFECT LIEN
37-14 Sec. 62.121. PROCEDURE TO PERFECT LIEN. (a) To perfect a
37-15 lien provided by this chapter, a person claiming a lien under this
37-16 chapter must execute a notice and claim of lien as provided by this
37-17 section.
37-18 (b) The person claiming a lien must make duplicate copies of
37-19 the notice and claim of lien and record one copy with the county
37-20 clerk of the county in which the property is located on or before
37-21 the 120th day after the date a building, structure, or improvement,
37-22 or an alteration or repair of a building, structure, or
37-23 improvement, is completed or, if a notice of completion has been
37-24 recorded, on or before the 60th day after the date the notice is
37-25 recorded. Within a reasonable time after recording the notice and
37-26 claim of lien, the person claiming a lien shall serve the remaining
38-1 copy on the owner of the building, structure, or improvement if the
38-2 owner can be found in the county.
38-3 (c) The notice and claim of lien must be made under oath by
38-4 the claimant or a person with knowledge of the facts and must
38-5 contain:
38-6 (1) the legal description of the property to be
38-7 charged with a lien;
38-8 (2) the name of the owner or reputed owner of the
38-9 property, if known, and the name of the person by whom the claimant
38-10 was employed or to whom the claimant furnished materials;
38-11 (3) a general statement of the type of work done and
38-12 materials furnished by the claimant and, for a claimant other than
38-13 an original contractor, the amounts owed for the work and
38-14 materials;
38-15 (4) a copy of the contract;
38-16 (5) a statement of the claimant's demand, after
38-17 deducting credits and offsets;
38-18 (6) a statement of the date of completion of the
38-19 building, structure, or improvement, or any alteration or repair of
38-20 the building, structure, or improvement; and
38-21 (7) a statement of the date the preliminary 45-day
38-22 notice was given and a copy of the preliminary 45-day notice,
38-23 including the proof of mailing.
38-24 (d) For the purposes of this section, "completion" means the
38-25 earliest of the following dates or events:
38-26 (1) the 30th day after the date of the final
39-1 inspection and written final acceptance by the governmental body
39-2 that issued the building permit for the building, structure, or
39-3 improvement;
39-4 (2) if no building permit is issued or if the
39-5 governmental body that issued the building permit for the building,
39-6 structure, or improvement does not issue final inspections and
39-7 written final acceptances, the last date on which any labor,
39-8 materials, or professional services were furnished to the property;
39-9 or
39-10 (3) termination of the original contract, abandonment
39-11 of the project, or cessation of labor for a period of 60
39-12 consecutive days, unless the cessation of labor is due to a strike,
39-13 shortage of materials, or act of nature.
39-14 Sec. 62.122. NOTICE OF COMPLETION. (a) A notice of
39-15 completion is a written notice that the owner or the owner's agent
39-16 may record at any time after completing the construction.
39-17 (b) A notice of completion executed and delivered as
39-18 prescribed by this section establishes the completion date for
39-19 purposes of this subchapter.
39-20 (c) A notice of completion must be signed and verified by
39-21 the owner or the owner's agent and must contain the following
39-22 information:
39-23 (1) the name and address of the owner;
39-24 (2) the nature of the interest or estate in the
39-25 property owned;
39-26 (3) the legal description of the property and the
40-1 street address;
40-2 (4) the name of the original contractor, if any;
40-3 (5) the name and address of each predecessor in
40-4 interest if the property was transferred after the beginning of the
40-5 work or improvement;
40-6 (6) the nature of the improvements to the real
40-7 property; and
40-8 (7) the date of completion.
40-9 (d) The notice of completion must read substantially similar
40-10 to the following:
40-11 NOTICE OF COMPLETION
40-12 Notice is hereby given that:
40-13 1. The undersigned is owner of the interest or
40-14 estate stated below in the property described below, or
40-15 the undersigned is the owner's agent.
40-16 2. The full name of the undersigned
40-17 is ____________________________________.
40-18 3. The full address of the undersigned
40-19 is ____________________________________.
40-20 4. The nature of the interest or estate of
40-21 the owner is: In Fee Simple. _______________. (if
40-22 other than fee simple, strike "In Fee Simple" and
40-23 insert, for example, "Purchaser Under Contract of
40-24 Purchase" or "Lessee")
40-25 5. The full name and address of each person, if
40-26 any, who holds an interest or estate with the
41-1 undersigned, including a joint tenant or a
41-2 tenant-in-common, is:
41-3 Name Address
41-4 _______________________ ________________________
41-5 _______________________ ________________________
41-6 _______________________ ________________________
41-7 6. The full name and address of each predecessor
41-8 in interest of the undersigned, if the property was
41-9 transferred after the beginning of the work or
41-10 improvement, is:
41-11 Name Address
41-12 _______________________ ________________________
41-13 _______________________ ________________________
41-14 _______________________ ________________________
41-15 7. The nature of the improvements to the real
41-16 property is _______________________________.
41-17 8. The work or improvement on the property
41-18 described was completed in accordance with the
41-19 definition of "completion" in Section 62.121, Property
41-20 Code. (Fill in the appropriate completion date as
41-21 defined in Section 62.121, Property Code:)
41-22 (a)-Date ______________________ (30 days
41-23 after written final acceptance by governmental body)
41-24 (b)-Date ______________________ (60 days
41-25 after cessation of labor)
41-26 (c)-Date ______________________ (last date
42-1 on which any labor, materials, machinery, equipment, or
42-2 tools were furnished to the property)
42-3 9. The name of the original contractor, if any,
42-4 for the work or improvement is _________________.
42-5 (if no contractor, insert "none")
42-6 10. The street address of the property
42-7 is ____________________________________. (include both
42-8 address and city with zip code)
42-9 11. The legal description of property described
42-10 above is __________________________________. (attach
42-11 exhibit if necessary)
42-12 Verification
42-13 I, the undersigned, certify that I am the owner,
42-14 the owner's agent for the property, or another
42-15 interested party in the property described in the above
42-16 notice, or I certify that I am the original contractor
42-17 of the improvements to the real property described in
42-18 the above notice. I have read the foregoing notice and
42-19 know and understand the contents. The facts stated are
42-20 true and correct. I declare under penalty of perjury
42-21 that the foregoing is true and correct.
42-22 Executed on ______________________ (date) at
42-23 ________________ (place where signed), Texas
42-24 _______________________________ (print name)
42-25 _______________________ (personal signature)
42-26 ____________________________________ (title)
43-1 (Acknowledgment)
43-2 (Each notice of completion must contain the
43-3 following language printed in a type at least as large
43-4 as the largest type used in the document:)
43-5 To shorten the lien period under Section 62.121,
43-6 Property Code, a copy of the notice of completion and a
43-7 written statement of the date of recording of the
43-8 notice and the county clerk's record location
43-9 information shall be provided by the owner to the
43-10 original contractor and all persons from whom the
43-11 person recording this notice has previously received a
43-12 preliminary 45-day notice as prescribed by Subchapter
43-13 C, Chapter 62, Property Code, in accordance with
43-14 Section 62.004, Property Code.
43-15 Notice: Receipt of a notice of completion may
43-16 alter the time you have to perfect a lien in accordance
43-17 with Section 62.121, Property Code.
43-18 (e) If the property is owned by more than one person, a
43-19 notice of completion signed by fewer than all the owners must
43-20 include the name and address of each owner. If the notice of
43-21 completion is signed by a successor in interest, the notice must
43-22 include the name and address of each person who transferred the
43-23 property to the successor in interest.
43-24 (f) The person executing the notice of completion shall
43-25 record the notice in the office of the county clerk of the county
43-26 in which the property is located. The county clerk shall index the
44-1 notice of completion under the index classification in which
44-2 mechanic's liens are recorded.
44-3 (g) If a notice of completion is recorded, the person
44-4 recording the notice, not later than the 15th day after the date
44-5 the notice is recorded, shall serve a copy of the notice of
44-6 completion and a written statement of the date of recording of the
44-7 notice and the county clerk's record location information on the
44-8 original contractor and all persons from whom the owner has
44-9 previously received a preliminary 45-day notice. If the owner or
44-10 the owner's agent fails to provide the information within the
44-11 period prescribed by this subsection, the person may, not later
44-12 than the 120th day after the date of completion as defined by
44-13 Section 62.121, perfect a lien under this chapter.
44-14 Sec. 62.123. DUTY OF OWNER OF PROPERTY TO WITHHOLD PAYMENT
44-15 TO ORIGINAL CONTRACTOR. On service of the notice and claim of
44-16 lien, the owner shall retain, out of the amount due or to become
44-17 due the original contractor, the value of the labor or material
44-18 furnished as shown by the notice and claim of lien. The owner
44-19 shall furnish to the original contractor a copy of the notice and
44-20 claim of lien. If the contractor, within 10 days after the date
44-21 of receiving the copy, does not give the owner a written notice
44-22 that the contractor intends to dispute the claim, the contractor is
44-23 presumed to assent to the demand, and the owner shall pay the claim
44-24 when the claim becomes due.
44-25 (Sections 62.124-62.150 reserved for expansion
44-26 SUBCHAPTER G. STOP NOTICES
45-1 Sec. 62.151. STOP NOTICE AND BONDED STOP NOTICE. (a) The
45-2 purpose of a stop notice or bonded stop notice is to give notice to
45-3 an owner or construction lender that labor or materials have been
45-4 furnished and the person providing the notice has not been paid for
45-5 the labor or materials. The right to file a notice under this
45-6 subchapter is independent and cumulative of other rights prescribed
45-7 by this chapter.
45-8 (b) A stop notice must be in writing, be signed and verified
45-9 by the claimant or the claimant's agent, and state in general terms
45-10 the following information:
45-11 (1) the kind of labor, services, equipment, or
45-12 materials furnished or agreed to be furnished by the claimant;
45-13 (2) the name of the person by whom the claimant was
45-14 employed or to whom the claimant furnished the labor, services,
45-15 equipment, or materials;
45-16 (3) the estimated amount in value of the labor,
45-17 services, equipment, or materials furnished and the full amount in
45-18 value of the labor, services, equipment, or materials agreed to be
45-19 furnished; and
45-20 (4) the name and address of the claimant.
45-21 (c) A bonded stop notice is a stop notice provided to a
45-22 construction lender that is accompanied by a bond that:
45-23 (1) provides good and sufficient sureties in a penal
45-24 sum equal to 125 percent of the amount of the claim; and
45-25 (2) is conditioned that if the defendant recovers a
45-26 judgment in an action brought on a verified claim or on the lien
46-1 filed by the claimant, the claimant will pay:
46-2 (A) all costs that may be awarded against the
46-3 owner, original contractor, or construction lender; and
46-4 (B) all damages that the owner, original
46-5 contractor, or construction lender may sustain by reason of the
46-6 equitable garnishment effected by the claim or by reason of the
46-7 lien, not exceeding the sum specified in the bond.
46-8 (d) A stop notice or bonded stop notice is not invalid by
46-9 reason of any defect in form if the notice is sufficient to
46-10 substantially inform the owner of the information required.
46-11 Sec. 62.152. PERSON ENTITLED TO PROVIDE STOP NOTICE;
46-12 CONDITIONS FOR SERVICE. (a) Any person, other than the original
46-13 contractor, who labors, specifically fabricates material, or
46-14 furnishes labor or materials for construction may provide a stop
46-15 notice to the owner.
46-16 (b) Any person, including the original contractor, who
46-17 labors, specifically fabricates material, or furnishes labor or
46-18 materials for construction may provide a stop notice or bonded stop
46-19 notice to the construction lender.
46-20 (c) Service of a stop notice or a bonded stop notice is
46-21 effective only if the claimant:
46-22 (1) has provided the preliminary 45-day notice as
46-23 provided by Subchapter C;
46-24 (2) provides the stop notice or the bonded stop notice
46-25 before the expiration of the period within which the claimant's
46-26 claim of lien must be recorded under Subchapter F; and
47-1 (3) in the case of a construction lender, provides the
47-2 bonded stop notice to the manager or other responsible officer or
47-3 person at the office of the construction lender.
47-4 (d) If a bonded stop notice is delivered or sent to an
47-5 institution or organization with branch offices, the bonded stop
47-6 notice is not effective unless the notice is delivered to the
47-7 office or branch administering or holding the construction funds.
47-8 (e) Any person described by Subsection (a) who fails to
47-9 provide a stop notice after a written demand for a stop notice is
47-10 received from the owner forfeits the right to a mechanic's lien.
47-11 Sec. 62.153. EFFECT OF STOP NOTICE AND BONDED STOP NOTICE.
47-12 (a) Except as provided by this section, a construction lender may,
47-13 and on receipt of a bonded stop notice shall, withhold from the
47-14 borrower or other person to whom the lender or the owner is
47-15 obligated to make payments or advances out of the construction
47-16 funds sufficient funds to pay the claim and any lien that is
47-17 recorded. On receipt of a stop notice or bonded stop notice:
47-18 (1) the construction lender shall withhold funds
47-19 relating to a bonded stop notice filed by an original contractor,
47-20 regardless of whether a payment bond has previously been recorded
47-21 in the office of the county clerk of the county in which the
47-22 property is located;
47-23 (2) the construction lender shall withhold funds
47-24 relating to a bonded stop notice filed by any person described by
47-25 Section 62.152, unless a payment bond has been previously recorded
47-26 in the office of the county clerk of the county in which the
48-1 property is located;
48-2 (3) if a payment bond has been previously recorded,
48-3 the construction lender may withhold funds relating to the bonded
48-4 stop notice or stop notice; and
48-5 (4) if the claimant makes a written request for notice
48-6 of the construction lender's decision to withhold funds under
48-7 Subdivision (2) or (3), the lender shall furnish the claimant a
48-8 copy of the bond not later than the 30th day after the date the
48-9 lender makes a decision.
48-10 (b) A construction lender is not liable for the failure to
48-11 furnish a copy of the bond under Subsection (a)(4) if:
48-12 (1) the failure was not intentional and resulted from
48-13 a bona fide error;
48-14 (2) the lender maintains reasonable procedures to
48-15 avoid such an error; and
48-16 (3) the error was corrected not later than the 20th
48-17 day after the date the violation was discovered.
48-18 (c) If a stop notice or bonded stop notice is filed by the
48-19 original contractor or by a subcontractor, the original contractor
48-20 or subcontractor is entitled to recover on the stop notice or
48-21 bonded stop notice only the net amount due the original contractor
48-22 or subcontractor after deducting the stop notice claims of each
48-23 subcontractor or material supplier who has filed a bonded stop
48-24 notice based on work furnished on behalf of the original contractor
48-25 or the subcontractor.
48-26 (d) A construction lender is not required to withhold more
49-1 than the net amount due under a bonded stop notice.
49-2 Notwithstanding any other provision, a construction lender is not
49-3 liable for the failure to withhold more than the net amount on
49-4 receipt of a bonded stop notice.
49-5 (e) On receipt of a stop notice, the owner shall withhold
49-6 sufficient funds to pay a claim and any lien recorded from the
49-7 original contractor or from any person acting under the original
49-8 contractor's authority and to whom labor or materials have been
49-9 furnished or agreed to be furnished, unless a payment bond has been
49-10 recorded as provided by this chapter.
49-11 (f) If the owner does not withhold funds because a payment
49-12 bond has been previously recorded, the owner shall give a written
49-13 notice not later than the 30th day after the date the stop notice
49-14 is received to the claimant at the address shown in the stop notice
49-15 that states that the bond has been recorded and that is accompanied
49-16 by a copy of the bond.
49-17 Sec. 62.154. PRIORITIES. (a) An assignment by the owner or
49-18 contractor of construction loan funds, whether made before or after
49-19 a stop notice or bonded stop notice is provided to a construction
49-20 lender, does not take priority over the stop notice or bonded stop
49-21 notice, and the assignment has no effect on the right of a claimant
49-22 who provides the stop notice or bonded stop notice.
49-23 (b) If the funds withheld or required to be withheld under a
49-24 stop notice or bonded stop notice are insufficient to pay in full
49-25 the claims of each person providing the notices, the funds shall be
49-26 distributed among the claimants in the same ratio that their
50-1 respective claims bear to the aggregate of all claims. This pro
50-2 rata distribution shall be made among the persons entitled to share
50-3 in the funds without regard to the order of time in which the
50-4 respective notices were provided or the respective actions were
50-5 commenced.
50-6 (c) A person who intentionally provides a false stop notice
50-7 or bonded stop notice or who intentionally includes in the notice
50-8 labor, services, equipment, or materials not furnished for the
50-9 property described in the notice forfeits all rights to participate
50-10 in the pro rata distribution of the funds.
50-11 Sec. 62.155. RELEASE OF STOP NOTICE OR BONDED STOP NOTICE.
50-12 If the owner, the construction lender, or any original contractor
50-13 or subcontractor disputes the accuracy or validity of a stop notice
50-14 or bonded stop notice, that person may file with the person on whom
50-15 the notice was served a bond executed by a good and sufficient
50-16 surety in a penal sum equal to 125 percent of the amount stated in
50-17 the notice and conditioned for the payment of any sum not exceeding
50-18 the penal obligation of the bond, including the amount of the claim
50-19 and the costs of enforcing the claim. When the bond is filed, the
50-20 funds withheld under the stop notice or bonded stop notice shall be
50-21 released.
50-22 Sec. 62.156. ENFORCEMENT OF RIGHTS ARISING FROM STOP NOTICE
50-23 AND BONDED STOP NOTICE. (a) An action against the owner or
50-24 construction lender to enforce payment of the claim stated in the
50-25 stop notice or bonded stop notice may be commenced at any time
50-26 after the 10th day after the date the owner or construction lender
51-1 receives the notice. If no action is taken to enforce payment of
51-2 the claim on or before the second anniversary of the date of
51-3 service, the notice is no longer effective and the funds shall be
51-4 paid or delivered to the contractor or other person to whom the
51-5 funds are due. Notice of any enforcement action shall be provided
51-6 not later then the fifth day after the date the action is filed to
51-7 the same persons and in the same manner as provided for service of
51-8 a stop notice or bonded stop notice.
51-9 (b) A stop notice or bonded stop notice is no longer
51-10 effective and the funds withheld shall be paid or delivered to the
51-11 person to whom the funds are due if:
51-12 (1) an action to enforce the stop notice or bonded
51-13 stop notice is dismissed, unless the dismissal is without
51-14 prejudice; or
51-15 (2) a judgment is rendered against the claimant.
51-16 (c) Each person who has provided a stop notice or bonded
51-17 stop notice may join in the same action. If separate actions are
51-18 filed, the court first acquiring jurisdiction may consolidate the
51-19 actions. On the motion of the owner or construction lender, the
51-20 court shall require all claimants to the funds withheld under a
51-21 stop notice or bonded stop notice to be interpleaded in one action.
51-22 (Sections 62.157-62.180 reserved for expansion
51-23 SUBCHAPTER H. PRIORITY AND PREFERENCE
51-24 Sec. 62.181. PREFERENCE OVER OTHER CREDITORS. All
51-25 subcontractors, laborers, materialmen, or professional service
51-26 providers who have a mechanic's lien have preference over other
52-1 creditors of the original contractor.
52-2 Sec. 62.182. EQUALITY OF LIENS. (a) The liens provided
52-3 under this chapter are on an equal footing without reference to the
52-4 date of recording of the notice and claim of lien and without
52-5 reference to the time of performance of the work or labor or the
52-6 furnishing of materials or professional services.
52-7 (b) If the proceeds of a foreclosure sale of property are
52-8 insufficient to discharge all mechanic's liens against the
52-9 property, the proceeds shall be paid pro rata on the perfected
52-10 mechanic's liens on which suit is brought.
52-11 Sec. 62.183. PRIORITY OF MECHANIC'S LIENS OVER OTHER LIENS.
52-12 (a) Except as provided by this section, a mechanic's lien attaches
52-13 to the house, building, improvements, or railroad property in
52-14 preference to any prior lien, encumbrance, or mortgage on the
52-15 property on which it is located, and the person enforcing the lien
52-16 may have the house, building, improvement, or any piece of the
52-17 railroad property sold separately.
52-18 (b) The mechanic's lien does not affect any lien,
52-19 encumbrance, or mortgage on the property or improvement at the time
52-20 of the inception of the mechanic's lien, and the holder of the
52-21 lien, encumbrance, or mortgage need not be made a party to a suit
52-22 to foreclose the mechanic's lien.
52-23 (c) For purposes of this section, the time of inception of a
52-24 mechanic's lien is the commencement of construction of improvements
52-25 or delivery of materials to the property on which the improvements
52-26 are to be located and on which the materials are to be used.
53-1 (Sections 62.184-62.200 reserved for expansion
53-2 SUBCHAPTER I. RELEASE AND FORECLOSURE
53-3 Sec. 62.201. ENFORCEMENT OF REMEDIES AGAINST MONEY DUE
53-4 ORIGINAL CONTRACTOR OR SUBCONTRACTOR. (a) A creditor of an
53-5 original contractor may not collect, enforce a security interest
53-6 against, garnish, or levy execution on the money due the original
53-7 contractor or the contractor's surety from the owner, and a
53-8 creditor of a subcontractor may not collect, enforce a security
53-9 interest against, garnish, or levy execution on the money due the
53-10 subcontractor, to the prejudice of the subcontractors, mechanics,
53-11 laborers, materialmen, or their sureties.
53-12 (b) A surety issuing a payment bond or performance bond in
53-13 connection with the improvements has a priority claim over other
53-14 creditors of its principal to contract funds to the extent of any
53-15 loss it suffers or incurs. That priority does not excuse the
53-16 surety from paying any obligations that it may have under its
53-17 payment bonds.
53-18 Sec. 62.202. RELEASE OF CLAIM OR LIEN. (a) When a debt for
53-19 labor, materials, or professional services is satisfied or paid by
53-20 collected funds, the person who furnished the labor, materials, or
53-21 professional services shall, not later than the 10th day after the
53-22 date of receipt of a written request, furnish to the requesting
53-23 person a release of the indebtedness and any lien claimed, to the
53-24 extent of the indebtedness paid. An owner, the original
53-25 contractor, or any person making the payment may request the
53-26 release.
54-1 (b) A release of lien must be in a form that would permit it
54-2 to be filed of record.
54-3 Sec. 62.203. DUTY OF CONTRACTOR TO DEFEND ACTION; RIGHTS OF
54-4 OWNER AGAINST CONTRACTOR. (a) When a lien is recorded or notice
54-5 given by any person other than a contractor, the contractor shall
54-6 defend the action.
54-7 (b) During pendency of the action, the owner may withhold
54-8 the amount in dispute and, if judgment on the lien is rendered, the
54-9 owner may deduct, from any amount due or to become due from the
54-10 owner to the contractor, the amount of the judgment and costs.
54-11 (c) If the owner has settled with the contractor in full, or
54-12 if the amount is not due the contractor, the owner may recover from
54-13 the contractor the amount paid by the owner and for which the
54-14 contractor is liable.
54-15 Sec. 62.204. CONSOLIDATION OF ACTIONS; INTERVENTION.
54-16 (a) Claimants who do not contest the claims of each other may join
54-17 as plaintiffs, and when separate actions are commenced the court
54-18 may consolidate the actions.
54-19 (b) Claimants who fail or refuse to join in the action shall
54-20 be made defendants.
54-21 (c) Claimants who are not involved in the action may, at any
54-22 time before final hearing, intervene in the action.
54-23 Sec. 62.205. FORECLOSURE. A lien under this chapter may be
54-24 foreclosed only on judgment of a court foreclosing the lien and
54-25 ordering the sale of the property subject to the lien.
54-26 Sec. 62.206. LIMITATION OF ACTION TO FORECLOSE LIEN. A lien
55-1 under this chapter expires on the second anniversary of the date
55-2 the lien is recorded, unless an action is brought within that
55-3 period to foreclose the lien. If a claimant is made a defendant to
55-4 an action brought by another claimant, the filing of an answer or
55-5 cross-claim asserting the lien during the two-year period
55-6 prescribed by this section is considered commencement of an action
55-7 within the meaning of this section.
55-8 Sec. 62.207. RIGHT OF CLAIMANT TO HAVE LAND AND IMPROVEMENTS
55-9 SOLD TOGETHER OR SEPARATELY. (a) A person enforcing a lien under
55-10 this chapter may have the land and improvements sold together, or
55-11 the person may have the improvements sold separately if the
55-12 improvements can be removed without material injury to the
55-13 remaining property.
55-14 (b) If the improvements are sold separately, the officer
55-15 making the sale shall place the purchaser in possession. The
55-16 purchaser is entitled to a reasonable time after the date of the
55-17 purchase within which to remove the purchased property.
55-18 Sec. 62.208. DISCHARGE OF LIEN. A mechanic's lien or
55-19 affidavit claiming a mechanic's lien filed under this chapter may
55-20 be discharged of record by:
55-21 (1) recording a lien release signed by the claimant
55-22 under Section 62.202;
55-23 (2) failing to institute suit to foreclose the lien in
55-24 the county in which the property is located within the period
55-25 prescribed by this chapter;
55-26 (3) recording the original or certified copy of a
56-1 final judgment or decree of a court providing for the discharge; or
56-2 (4) filing the bond and notice in compliance with
56-3 Subchapter J.
56-4 (Sections 62.209-62.230 reserved for expansion
56-5 SUBCHAPTER J. BOND TO INDEMNIFY AGAINST LIEN
56-6 Sec. 62.231. BOND. (a) If a lien, other than a lien
56-7 granted by the owner in a written contract, is fixed or is
56-8 attempted to be fixed by a recorded instrument under this chapter,
56-9 any person may file a bond to indemnify against the lien.
56-10 (b) The bond shall be filed with the county clerk of the
56-11 county in which the property subject to the lien is located.
56-12 (c) A mechanic's lien claim against an owner's property is
56-13 discharged after:
56-14 (1) a bond that complies with Section 62.232 is filed;
56-15 (2) the notice of the bond is issued as provided by
56-16 Section 62.233; and
56-17 (3) the bond and notice are recorded as provided by
56-18 Section 62.234.
56-19 Sec. 62.232. BOND REQUIREMENTS. The bond must:
56-20 (1) describe the property on which the liens are
56-21 claimed;
56-22 (2) refer to each lien claimed in a manner sufficient
56-23 to identify it;
56-24 (3) be in an amount that is double the amount of the
56-25 liens referred to in the bond unless the total amount claimed in
56-26 the liens exceeds $100,000, in which case the bond must be in an
57-1 amount that is the greater of 1-1/2 times the amount of the liens
57-2 or the sum of $100,000 and the amount of the liens;
57-3 (4) be payable to the parties claiming the liens;
57-4 (5) be executed by:
57-5 (A) the party filing the bond as principal; and
57-6 (B) a corporate surety authorized and admitted
57-7 to do business under the law in this state and licensed by this
57-8 state to execute the bond as surety, subject to Section 1, Chapter
57-9 87, Acts of the 56th Legislature, Regular Session, 1959 (Article
57-10 7.19-1, Vernon's Texas Insurance Code); and
57-11 (6) be conditioned substantially that the principal
57-12 and sureties will pay to the named obligees or to their assignees
57-13 the amount that the named obligees would have been entitled to
57-14 recover if their claims had been proved to be valid and enforceable
57-15 liens on the property.
57-16 Sec. 62.233. NOTICE OF BOND. (a) After the bond is filed,
57-17 the county clerk shall issue notice of the bond to all named
57-18 obligees.
57-19 (b) A copy of the bond must be attached to the notice.
57-20 (c) The notice must be served in accordance with Section
57-21 62.004 on each obligee by sending a copy of the notice and the bond
57-22 to the obligee, addressed to the claimant at the address stated in
57-23 the lien affidavit for the obligee.
57-24 (d) If the claimant's lien affidavit does not state the
57-25 claimant's address, the notice is not required to be sent to the
57-26 claimant.
58-1 Sec. 62.234. RECORDING OF BOND AND NOTICE. (a) The county
58-2 clerk shall record the bond, the notice, and a certificate of
58-3 mailing in the real property records.
58-4 (b) In acquiring an interest in or insuring title to real
58-5 property, a purchaser, insurer of title, or lender may rely on and
58-6 is absolutely protected by the record of the bond and the notice to
58-7 the same extent as if the lien claimant had filed a release of lien
58-8 in the real property records.
58-9 Sec. 62.235. ACTION ON BOND. (a) A party making or holding
58-10 a lien claim may not sue on the bond later than two years after the
58-11 date the notice is served.
58-12 (b) The bond is not exhausted by one action against it.
58-13 Each named obligee or assignee of an obligee may maintain a
58-14 separate suit on the bond in any court of jurisdiction in the
58-15 county in which the real property is located.
58-16 (Sections 62.236-62.250 reserved for expansion
58-17 SUBCHAPTER K. BOND TO PAY LIENS OR CLAIMS
58-18 Sec. 62.251. BOND. An original contractor who has a written
58-19 contract with the owner may furnish at any time a bond for the
58-20 benefit of claimants.
58-21 Sec. 62.252. BOND REQUIREMENTS. The bond must:
58-22 (1) be in a penal sum at least equal to the total of
58-23 the original contract amount;
58-24 (2) be in favor of the owner;
58-25 (3) have the written approval of the owner endorsed on
58-26 it;
59-1 (4) be executed by:
59-2 (A) the original contractor as principal; and
59-3 (B) a corporate surety authorized and admitted
59-4 to do business in this state and licensed by this state to execute
59-5 bonds as surety, subject to Section 1, Chapter 87, Acts of the 56th
59-6 Legislature, Regular Session, 1959 (Article 7.19-1, Vernon's Texas
59-7 Insurance Code); and
59-8 (5) be conditioned on prompt payment for all labor,
59-9 subcontracts, materials, specially fabricated materials, and normal
59-10 and usual extras not exceeding 15 percent of the contract price.
59-11 Sec. 62.253. RECORDING OF BOND AND CONTRACT. (a) The bond
59-12 and the contract between the original contractor and the owner
59-13 shall be filed with the county clerk of the county in which is
59-14 located all or part of the owner's property on which the
59-15 construction, alteration, or repair is being performed or is to be
59-16 performed. A memorandum of the contract or a copy of the contract
59-17 may be substituted for the original.
59-18 (b) The plans, specifications, and general conditions of the
59-19 contract are not required to be filed.
59-20 (c) The county clerk shall record the bond and place the
59-21 contract on file in the clerk's office and shall index and
59-22 cross-index both in the names of the original contractor and the
59-23 owner in records kept for that purpose.
59-24 (d) On request and payment of a reasonable fee, the county
59-25 clerk shall furnish a copy of the bond and contract to any person.
59-26 (e) In any court of this state or in the United States, a
60-1 copy of the bond and contract certified by the county clerk
60-2 constitutes prima facie evidence of the contents, execution,
60-3 delivery, and filing of the originals.
60-4 Sec. 62.254. ACTION ON BOND. (a) A claimant may sue the
60-5 principal and surety on the bond either jointly or severally.
60-6 (b) The claimant may sue for the amount of the claim and
60-7 court costs.
60-8 (c) The suit must be brought in the county in which the
60-9 property being improved is located not later than the second
60-10 anniversary of the date the project is completed.
60-11 (d) If the bond is recorded at the time the lien is filed,
60-12 the claimant must sue on the bond not later than the second
60-13 anniversary of the date the claimant's claim is perfected. If the
60-14 bond is not recorded at the time the lien is filed, the claimant
60-15 must sue on the bond not later than the second anniversary of the
60-16 date the claim is perfected.
60-17 Sec. 62.255. CLAIMS IN EXCESS OF BOND AMOUNT. If valid
60-18 claims against the bond exceed the penal sum of the bond, each
60-19 claimant is entitled to a pro rata share of the penal sum.
60-20 Sec. 62.256. ATTEMPTED COMPLIANCE. (a) A bond shall be
60-21 construed to comply with this subchapter, and the rights and
60-22 remedies on the bond are enforceable in the same manner as on other
60-23 bonds under this subchapter, if the bond:
60-24 (1) is furnished and filed in attempted compliance
60-25 with this subchapter; or
60-26 (2) evidences by its terms intent to comply with this
61-1 subchapter.
61-2 (b) Any provision in any payment bond furnished or filed in
61-3 attempted compliance with this subchapter that expands or restricts
61-4 the rights or liabilities provided under this chapter shall be
61-5 disregarded and the provisions of this subchapter shall be read
61-6 into that bond.
61-7 (Sections 62.257-62.280 reserved for expansion
61-8 SUBCHAPTER L. LIEN ON MONEY DUE PUBLIC WORKS CONTRACTOR
61-9 Sec. 62.281. LIEN ON MONEY DUE PUBLIC WORKS CONTRACTOR. A
61-10 person who furnishes material or labor to a contractor under an
61-11 original contract that does not exceed $25,000 and that is for
61-12 public improvements in this state and who gives notice required by
61-13 this subchapter has a lien on the money, bonds, or warrants due the
61-14 contractor for the improvements.
61-15 Sec. 62.282. PERSONS TO WHOM NOTICE GIVEN. The lien
61-16 claimant must send written notice of the claim to:
61-17 (1) the officials of the state, county, municipality,
61-18 school district, or other public entity whose duty it is to pay the
61-19 contractor; and
61-20 (2) the contractor at the contractor's last known
61-21 business or residence address.
61-22 Sec. 62.283. CONTENTS OF NOTICE. (a) Whether based on
61-23 written or oral agreement, the notice must contain:
61-24 (1) the amount claimed;
61-25 (2) the name of the party to whom the materials were
61-26 delivered or for whom the labor was performed;
62-1 (3) the dates and place of delivery or performance;
62-2 (4) a description reasonably sufficient to identify
62-3 the materials delivered or labor performed and the amount due;
62-4 (5) a description reasonably sufficient to identify
62-5 the project for which the material was delivered or the labor
62-6 performed; and
62-7 (6) the claimant's business address.
62-8 (b) The notice must be accompanied by a statement under oath
62-9 that the amount claimed is just and correct and that all payments,
62-10 lawful offsets, and credits known to the affiant have been allowed.
62-11 Sec. 62.284. PREREQUISITE; TIME FOR NOTICE. (a) A lien
62-12 claimant must comply with the preliminary 45-day notice requirement
62-13 prescribed by Subchapter C.
62-14 (b) The lien claimant must give a lien notice not later than
62-15 the 15th day of the second month following the month in which the
62-16 labor was performed or the material furnished.
62-17 Sec. 62.285. OFFICIAL TO RETAIN FUNDS. A public official
62-18 who receives the notice may not pay all of the money, bonds, or
62-19 warrants due the contractor, but shall retain enough to pay the
62-20 claim for which notice is given.
62-21 Sec. 62.286. BOND FOR RELEASE OF LIEN. (a) If a claim is
62-22 filed attempting to fix a lien under this subchapter, the
62-23 contractor against whom the claim is made may file a bond with the
62-24 officials of the state, county, municipality, school district, or
62-25 other public entity whose duty it is to pay the money, bonds, or
62-26 warrants to the contractor.
63-1 (b) If the bond is approved by the proper official, its
63-2 filing releases and discharges all liens fixed or attempted to be
63-3 fixed by the filing of a claim, and the appropriate officials shall
63-4 pay the money, bonds, or warrants to the contractor or the
63-5 contractor's assignee.
63-6 Sec. 62.287. BOND REQUIREMENTS. The bond must be:
63-7 (1) in an amount double the amount of the claims
63-8 filed;
63-9 (2) payable to the claimants;
63-10 (3) executed by:
63-11 (A) the party filing the bond as principal; and
63-12 (B) a corporate surety authorized, admitted to
63-13 do business, and licensed by the law of this state to execute the
63-14 bond as surety; and
63-15 (4) conditioned that:
63-16 (A) the principal and surety will pay to the
63-17 obligees named or to their assignees the amount of the claims or
63-18 the portions of the claims proved to be liens under this
63-19 subchapter; and
63-20 (B) the principal and surety will pay all court
63-21 costs adjudged against the principal in actions brought by a
63-22 claimant on the bond.
63-23 Sec. 62.288. NOTICE OF BOND. The official with whom the
63-24 bond is filed shall send an exact copy of the bond to all claimants
63-25 in accordance with Section 62.004.
63-26 Sec. 62.289. ACTION ON BOND. (a) A claimant must sue on
64-1 the bond not later than the first anniversary of the date the bond
64-2 is filed.
64-3 (b) The bond is not exhausted by one action on it. Each
64-4 obligee or obligee's assignee may maintain a separate suit on the
64-5 bond in any court of jurisdiction.
64-6 SECTION 12. (a) This Act takes effect January 1, 2000.
64-7 (b) The changes in law made by this Act apply only to a
64-8 construction contract entered into on or after January 1, 2000, and
64-9 funds received under a construction contract entered into on or
64-10 after January 1, 2000. A construction contract entered into before
64-11 January 1, 2000, or funds received under a construction contract
64-12 entered into before January 1, 2000, are governed by the law as it
64-13 existed immediately before January 1, 2000, and that law is
64-14 continued in effect for that purpose.