By: Solomons H.B. No. 3018
A BILL TO BE ENTITLED
AN ACT
relating to mechanic's contractor's or materialman's lien.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sec. 53.053 (e), Property Code, is amended to
read as follows:
(e) A claim for retainage accrues on the last day of the
month in which all work called for by the contract between the owner
and the original contractor has been completed or the contract
between the owner and the original contractor has been terminated,
finally settled, or abandoned.
SECTION 2. Section 53.055 (a), Property Code, is amended to
read as follows:
(a) A person who files an affidavit must send a copy of the
affidavit by registered or certified mail to the owner or reputed
owner at the owner's last known business or residence address not
later than the 10th [fifth] day after the date the affidavit is
filed with the county clerk.
SECTION 3. Section 53.057, Property Code, is amended by
amending Subsection (a) and (b) and adding subsection (f) to read as
follows:
(a) A claimant may give notice under this section instead of
or in addition to notice under Section 53.056 or 53.252 if the
claimant is to labor, furnish labor or materials, or specially
fabricate materials under an agreement with [an original contractor
or] a subcontractor providing for retainage that exceeds ten
percent of the agreed price for labor, materials or specially
fabricated materials.
(b) The claimant must give the owner or reputed owner and
original contractor notice of the retainage agreement not later
than the 15th day of the second month following the delivery of
materials or the performance of labor by the claimant that first
occurs after the claimant has agreed to the contractual retainage.
[If the agreement is with a subcontractor, the claimant must also
give notice within that time to the original contractor.]
(f) Except as specified in this section for a claimant that
has an agreement with a subcontractor, no other claimant is
required to give a notice under this Chapter as a requirement to the
establishment of a lien for retainage other than that required
under section 53.055.
SECTION 4. Section 53.058(a) and (b), Property Code, are
amended to read as follows:
(a) Except as provided by Subchapter K, a claimant who
specially fabricates material pursuant to an agreement with a
subcontractor must give notice under this section for the lien to be
valid.
(b) The claimant must give the owner or reputed owner and
the original contractor notice not later than the 15th day of the
second month after the month in which the claimant receives and
accepts the order for the material. [If the indebtedness is
incurred by a person other than the original contractor, the
claimant must also give notice within that time to the original
contractor.]
SECTION 5. Section 53.082, Property Code, is amended to
read as follows:
Sec. 53.082. TIME FOR WHICH FUNDS ARE WITHHELD AND DURING
WHICH OWNER IS LIABLE.
Unless payment is made under Section 53.083 or the claim is
otherwise settled, discharged, indemnified against under
Subchapter H or I, or determined to be invalid by a final judgment
of a court, the owner shall retain the funds withheld and be liable
for payment of the withheld funds until:
(1) the time for filing the affidavit of mechanic's lien has
passed; or
(2) if a lien affidavit has been filed, until the lien claim
has been satisfied or released.
SECTION 6. Section 53.084 (b), Property Code, is amended to
read as follows:
(b) If the owner has received the notices required by
Subchapter C or K, if the lien has been secured, and if the claim has
been reduced to final judgment, the owner is liable and the owner's
property is subject to a claim for any money owed by the owner to the
original contractor for the work not paid to the original
contractor before [after] the owner was authorized to withhold
funds under this subchapter. The owner is liable for that amount in
addition to any amount for which he is liable under Subchapter E.
SECTION 7. Section 53.101, Property Code, is amended by
adding subsection (c) as follows:
(c) The owner shall be liable for payment of the retained
amounts under this chapter on the 31st day after the work is
completed. The owner may delay payment of a portion of retained
amounts equal to the amount of any affidavit of mechanic's lien that
has been filed against the property until the time has passed under
Section 53.082.
SECTION 8. Sections 53.160(b) and (d), Property Code, are
amended to read as follows:
(b) The grounds for objecting to the validity or
enforceability of the claim or lien for purposes of the motion are
limited to the following:
(1) notice of claim was not furnished to the owner or
original contractor in substantial compliance with [as required by]
Section 53.056, 53.057, 53.058, 53.252, or 53.253;
(2) an affidavit claiming a lien failed to
substantially comply with Section 53.054 or was not filed in
substantial compliance with [as required by] Section 53.052;
(3) notice of the filed affidavit was not furnished to
the owner of original contractor in substantial compliance with [as
required by] Section 53.055;
(4) the owner complied with the requirements of
Section 53.101 and paid the retainage and all other funds owed to
the original contractor before:
(A) the claimant perfected the lien claim; and
(B) the owner received a notice of the claim as
required by this chapter;
(5) all funds subject to the notice of a claim to the
owner and the perfection of a claim against the statutory retainage
have been deposited in the registry of the court and the owner has
no additional liability to the claimant;
(6) when the lien affidavit was filed on homestead
property:
(A) no contract was executed or filed as required
by Section 53.254;
(B) the affidavit claiming a lien failed to
contain the notice as required by Section 53.254; or
(C) the notice of the claim failed to include the
statement required by Section 53.254 and
(7) the claimant executed a valid and enforceable
waiver or release of the claim or lien claimed in the affidavit.
(d) At the hearing on the motion, the burden is on:
(1) the claimant to prove that the notice of claim and
affidavit of lien were furnished to the owner and original
contractor in substantial compliance with [as required by] this
chapter; and
(2) the movant to establish that the lien should be
removed for any other ground authorized by this section.
SECTION 9. Section 53.206, Property Code, is amended by
amending Subsections (b), and (d) to read as follows:
(b) To perfect a claim under this section, a person is not
required to:
(1) give notice to the surety under Section 53.057,
unless the claimant does not have [has] a direct contractual
relationship with the original contractor and the agreed retainage
is in excess of 10 percent of the contract;
(2) give notice to the surety under Section 53.058(b)
or, if the claim relates to a residential construction project,
under Section 53.253(c); or
(3) file any affidavit with the county clerk.
(d) A person satisfies the requirement of this section
relating to providing notice to the surety if the person delivers
[mails] the notice as provided by Section 53.003 [by certified or
registered mail] to the surety:
(1) at the address stated on the bond or on an
attachment to the bond;
(2) at the address on file with the Texas Department of
Insurance; or
(3) at any other address allowed by law.
SECTION 10. Section 53.208(d), Property Code, is amended to
read as follows:
(d) If the bond is recorded at the time the lien is filed,
the claimant must sue on the bond within one year following
perfection of the [his] claim or, with regard to contractual
retainage, within one year after completion of the work. If the
bond is not recorded at the time the lien is filed, the claimant
must sue on the bond within two years following perfection of the
[his] claim or, with regard to contractual retainage, within two
years after completion of the work.
SECTION 11. Section 53.234, Property Code, is amended to
read as follows:
Sec. 53.234. TIME FOR NOTICE. (a) The lien claimant must
give notice [before any payment is made to the contractor and] not
later than the 15th day of the third [second]month following the
month in which the labor was performed or the material was furnished
or specially fabricated.
(b) If an action is filed against or a demand of a person who
is a possible claimant under this chapter to recover money paid by a
surety's principal to the claimant, notice must be sent under this
section not later than one year after the date the action or demand
is served on the possible claimant.
SECTION 12. Chapter 53, Property Code, is amended by adding
Subchapter L to read as follows:
SUBCHAPTER L. WAIVER OF LIEN; AFFIDAVIT OF BILLS PAID
Sec. 53.281. WAIVER OF LIEN. (a) An owner or original
contractor may not waive or impair the claims or liens of another
person except with written consent as prescribed by this
subchapter. Any term of a contract purporting to waive or impair
the claim or lien of another is void.
(b) Any written waiver is unenforceable unless a waiver and
release is executed and delivered in accordance with this
subchapter.
(c) A waiver and release is effective to release the
property for the benefit of the owner, the contractor, and the
surety on a payment bond from claims and liens only if:
(1) the waiver and release substantially complies with
one of the forms prescribed by this subchapter;
(2) the waiver is signed by the claimant or the
claimant's authorized agent; and
(3) in the case of a conditional release, evidence of
payment to the claimant exists.
Sec. 53.282. CONDITIONS FOR WAIVER, RELEASE, OR IMPAIRMENT
OF CLAIM. (a) An oral or written statement purporting to waive,
release, or otherwise adversely affect a claim is not enforceable
and does not create an estoppel or impairment of a claim unless the
written waiver and release complies with this subchapter or the
claimant has actually received payment in full for the claim.
(b) This section does not affect the enforceability of an
accord and satisfaction regarding a bona fide dispute or any
agreement made in settlement of an action pending in any court if
the accord and satisfaction or agreement made in settlement makes
specific reference to the mechanic's lien or bond claims.
Sec. 53.283. FORMS FOR WAIVER AND RELEASE OF CLAIM. (a) A
waiver and release given by a claimant or potential claimant is
unenforceable unless its substantially complies with the
applicable forms described by Subsections (b)-(e).
(b) If a claimant or potential claimant is required to
execute a waiver and release in exchange for or to induce the
payment of a progress payment and is not paid in exchange of the
waiver and release or if a single payee check or joint payee check
is given in exchange for the waiver and release, the waiver and
release must read:
"CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
"Project
"Job No.
"On receipt by the signer of this document of a check from
______(maker of check) in the sum of $ payable to ______(payee
or payees of check) and when the check has been properly endorsed
and has been paid by the bank on which it is drawn, this document
becomes effective to release any mechanic's lien, any state or
federal statutory bond right, any private bond right, and claim for
payment, and any rights under any similar ordinance, rule, or
statute related to claim or payment rights for persons in the
signer's position that the signer has on the property of
______(owner) located at ______(location) to the following extent:
______(job description).
"This release covers a progress payment for all labor,
services, equipment, or material furnished to the property or to
______(person with whom signer contracted) on or before
______(date) and does not cover any retention, pending
modifications and changes, or items furnished on, before, or after
that date. Retention and pending modifications and changes
furnished on or before the above date total $ .
"Before any recipient of this document relies on this
document, the recipient should verify evidence of payment to the
signer.
"The signer warrants that the signer either has already paid
or will use the funds received from this progress payment to
promptly pay in full all of the signer's laborers, subcontractors,
materialmen, and suppliers for all work, materials, equipment, or
services provided for or to the above referenced project up to and
including the date of this waiver.
"Date
" (Company name)
"By (Signature)
" (Title)"
(c) If a claimant or potential claimant is required to
execute an unconditional waiver and release to prove the receipt of
good and sufficient funds for a progress payment and the claimant or
potential claimant asserts in the waiver and release that the
claimant or potential claimant has been paid the progress payment,
the waiver and release must contain a notice at the top of the
document, printed in bold type at least as large as the largest type
used in the document, but not smaller than 12-point type, that
reads:
"NOTICE:
"This document waives rights unconditionally and states that
you have been paid for giving up those rights. This document is
enforceable against you if you sign it, even if you have not been
paid. If you have not been paid, use a conditional release form.
"UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
"Project
"Job No.
"The signer of this document has been paid and has received a
progress payment in the sum of $ for all labor, services,
equipment, or material furnished to the property or to
______(person with whom signer contracted) on the property of
______(owner) located at ______(location) to the following extent:
_______________ (job description). The signer therefore waives and
releases any mechanic's lien, any state or federal statutory bond
right, any private bond right, any claim for payment, and any rights
under any similar ordinance, rule or statute related to claim or
payment rights for persons in the signer's position that the signer
has on the above referenced project to the following extent:
"This release covers a progress payment for all labor,
services, equipment, or materials furnished to the property or to
______(person with whom signer contracted) on or before
(date) and does not cover any retention, pending modifications and
changes on items furnished on, before, or after that date.
Retention and pending modifications and changes furnished on or
before the above date total $ .
"The signer warrants that the signer has already paid or will
use the funds received from this progress payment to promptly pay in
full all of the signer's laborers, subcontractors, materialmen, and
suppliers for all work, materials, equipment, or services provided
for or to the above referenced project up to and including the date
of this waiver.
"Date
" (Company name)
"By (Signature)
" (Title)"
(d) If the claimant or potential claimant is required to
execute a waiver and release in exchange for or to induce payment of
a final payment and is not paid in exchange for the waiver and
release or if a single payee check or joint payee check is given in
exchange for the waiver and release, the waiver and release must, as
closely as in practicable, read:
"CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
"Project
"Job No.
"On receipt by the signer of this document of a check from
______(maker of check) in the sum of $ payable to ______(payee
or payees of check) and when the check has been properly endorsed
and has been paid by the bank on which it is drawn, this document
becomes effective to release any mechanic's lien, and state or
federal statutory bond right, any private bond right, any claim or
payment, and any rights under any similar ordinance, rule, or
statute related to claim or payment rights for persons in the
signer's position that the signer has on the property of
______(owner) located at ______(location) to the following extent:
______(job description).
"This release covers the final payment to the signer for all
labor, services, equipment, or materials furnished to the property
or to ,(person with whom signer contracted) except for
disputed claims in the amount of $ .
"Before any recipient of this document relies on the
document, the recipient should verify evidence of payment to the
signer.
"The signer warrants that the signer either has already paid
or will use the funds received from this final payment to promptly
pay in full all the signer's laborers, subcontractors, materialmen,
and suppliers for all work, materials, equipment, or services
provided for or to the above referenced project up to the date of
this waiver.
"Date
" (Company name)
"By (Signature)
" (Title)"
(e) If a claimant or potential claimant is required to
execute an unconditional waiver and release to prove the receipt of
good and sufficient funds for a final payment and the claimant or
potential claimant asserts in the waiver and release that the
claimant or potential claimant has been paid the final payment, the
waiver and release must contain a notice at the top of the document,
printed in bold type at least as large as the largest type used in
the document, but not smaller than 12-point type, that reads:
"Notice:
This document waives rights unconditionally and states that
you have been paid for giving up those rights. This document is
enforceable against you if you sign it, even if you have not been
paid. If you have not been paid, use a conditional release form.
"UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
"Project
"Job No.
"The signer of this document has been paid in full for all
labor, services, equipment, or materials furnished to the property
or to (person with whom signer contracted) on the property
of (owner) located at (location) to the
following extent: (job description). The signer therefore
waives and releases any right to a mechanic's lien, any state or
federal statutory bond right, any private bond right, any claim for
payment, and any rights under any similar ordinance, rule, or
statute related to claim or payment rights for persons in the
signer's position, except for disputed claims for extra work in the
amount of $ .
"The signer warrants that the signer has already paid or will
use the funds received from this final payment to promptly pay in
full all of the signer's laborers, subcontractors, materialmen, and
suppliers for all work, materials, equipment, or services provided
for or to the above referenced project.
"Date
" (Company name)
"By (Signature)
" (Title)"
Sec. 53.284. AFFIDAVIT REQUIRED. (a) Any person who
furnishes labor or materials for the construction of improvements
on real property shall, if requested and as a condition of payment
for such labor or materials, provide to the requesting party, or the
party's agent, an affidavit stating that the person has paid each of
the person's subcontractors, laborers, or materialmen in full for
all labor and materials provided to the person for the
construction. In the event, however, that the person has not paid
each of the person's subcontractors, laborers, or materialmen in
full, the person shall state in the affidavit the amount owed and
the name and, if known, the address and telephone number of each
subcontractor, laborer, or materialman to whom the payment is owed.
(b) The seller of any real property shall, upon request by
the purchaser or the purchaser's agent prior to closing of the
purchase of the real property, provide to the purchaser or the
purchaser's agent, a written affidavit stating that the seller has
paid each of the seller's contractors, laborers, or materialmen in
full for all labor and materials provided to the seller through the
date specified in the affidavit for any construction of
improvements on the real property and that the seller is not
indebted to any person, firm, or corporation by reason of any such
construction through the date specified in the affidavit. In the
event that the seller has not paid each of the seller's contractors,
laborers, or materialmen in full for labor and material provided
through the date specified in the affidavit, the seller shall state
in the affidavit the amount owed and the name and, if known, the
address and telephone number of each contractor, laborer, or
materialman to whom the payment is owed.
(c) The affidavit may include:
(1) a waiver or release of lien rights by the affiant
that is conditioned on the receipt of actual payment or collection
of funds when payment is made by check or draft;
(2) a warranty or representation that certain bills or
classes of bills will be paid by the affiant from funds paid in
reliance on the affidavit; and
(3) an indemnification by the affiant for any loss or
expense resulting from false or incorrect information in the
affidavit.
(d) A person, including a seller, commits an offense if the
person intentionally, knowingly, or recklessly makes a false or
misleading statement in an affidavit under this section. An
offense under this section is a misdemeanor. A person adjudged
guilty of an offense under this section shall be punished by a fine
not to exceed $4,000 or confinement in jail for a term not to exceed
one year or both a fine and confinement. A person may not receive
community supervision for the offense.
(e) A person signing an affidavit under this section is
personally liable for any loss or damage resulting from any false or
incorrect information in the affidavit.
Sec. 53.285. PUBLIC POLICY. (a) Notwithstanding any other
law and except as provided by Section 53.282, any contract,
agreement, or understanding purporting to waive the right to file
or enforce any lien or claim created under this chapter is void as
against public policy.
(b) This subchapter does not apply to written agreement to
subordinate, release, or satisfy all or part of a lien claimed after
a notice of lien has been filed.
SECTION 13. (a) This Act takes effect September 1, 2003.
(b) The changes in law made by this Act apply only to a
contract executed on or before September 1, 2003. A contract
executed before September 1, 2003, is covered by the law in effect
when the contract was executed, and the former law is continued in
effect for that purpose.