| |
| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
|
|
relating to the waiver and release of a mechanic's, contractor's, or |
|
|
materialman's lien or payment bond claim. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Section 53.085(c), Property Code, is amended to |
|
|
read as follows: |
|
|
(c) The affidavit may include: |
|
|
(1) a waiver or release of lien rights or payment bond |
|
|
claims by the affiant that is conditioned on the receipt of actual |
|
|
payment or collection of funds when payment is made by check or |
|
|
draft, as provided by Subchapter L; |
|
|
(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. |
|
|
SECTION 2. Chapter 53, Property Code, is amended by adding |
|
|
Subchapter L to read as follows: |
|
|
SUBCHAPTER L. WAIVER AND RELEASE OF LIEN OR PAYMENT BOND CLAIM |
|
|
Sec. 53.281. WAIVER AND RELEASE OF LIEN OR PAYMENT BOND |
|
|
CLAIM. (a) Any waiver and release of a lien or payment bond claim |
|
|
under this chapter is unenforceable unless a waiver and release is |
|
|
executed and delivered in accordance with this subchapter. |
|
|
(b) A waiver and release is effective to release the owner, |
|
|
the owner's property, 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 and release is signed by the claimant or |
|
|
the claimant's authorized agent and notarized; 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 LIEN OR PAYMENT BOND CLAIM. (a) A statement purporting to |
|
|
waive, release, or otherwise adversely affect a lien or payment |
|
|
bond claim is not enforceable and does not create an estoppel or |
|
|
impairment of a lien or payment bond claim unless: |
|
|
(1) the statement is in writing and complies with this |
|
|
subchapter; |
|
|
(2) the claimant has actually received payment in good |
|
|
and sufficient funds in full for the lien or payment bond claim; or |
|
|
(3) the statement is: |
|
|
(A) in a written original contract or subcontract |
|
|
for the construction, remodel, or repair of a single-family house |
|
|
or duplex; and |
|
|
(B) made before labor or materials are provided |
|
|
under the original contract or subcontract and a good faith dispute |
|
|
exists regarding the quality of the labor or material provided by |
|
|
the original contractor or subcontractor that has resulted in the |
|
|
nonpayment of the original contractor or subcontractor. |
|
|
(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 lien or payment bond claim. |
|
|
(c) The filing of a lien rendered unenforceable by a lien |
|
|
waiver under Subsection (a)(3) does not violate Section 12.002, |
|
|
Civil Practice and Remedies Code. |
|
|
Sec. 53.283. UNCONDITIONAL WAIVER AND RELEASE: PAYMENT |
|
|
REQUIRED. A person may not require a claimant or potential claimant |
|
|
to execute an unconditional waiver and release for a progress |
|
|
payment or final payment amount unless the claimant or potential |
|
|
claimant received payment in that amount in good and sufficient |
|
|
funds. |
|
|
Sec. 53.284. FORMS FOR WAIVER AND RELEASE OF LIEN OR PAYMENT |
|
|
BOND CLAIM. (a) A waiver and release given by a claimant or |
|
|
potential claimant is unenforceable unless it substantially |
|
|
complies with the applicable form 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 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 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 right, any right arising from a payment bond that |
|
|
complies with a state or federal statute, any common law payment |
|
|
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 |
|
|
property of ________________ (owner) located at |
|
|
______________________ (location) to the following extent: |
|
|
______________________ (job description). |
|
|
"This release covers a progress payment for all labor, |
|
|
services, equipment, or materials furnished to the property or to |
|
|
__________________ (person with whom signer contracted) as |
|
|
indicated in the attached statement(s) or progress payment |
|
|
request(s), except for unpaid retention, pending modifications and |
|
|
changes, or other items furnished. |
|
|
"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 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 in regard to the attached |
|
|
statement(s) or progress payment request(s). |
|
|
"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: |
|
|
(1) 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 10-point type, that reads: |
|
|
"NOTICE: |
|
|
"This document waives rights unconditionally and states that |
|
|
you have been paid for giving up those rights. This document may be |
|
|
enforceable against you if you sign it, even if you have not been |
|
|
paid. It is unlawful for a person to require you to sign this |
|
|
document if you have not been paid the payment amount set forth |
|
|
below. If you have not been paid, use a conditional release form."; |
|
|
and |
|
|
(2) below the notice, read: |
|
|
"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 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 mechanic's lien right, any right arising |
|
|
from a payment bond that complies with a state or federal statute, |
|
|
any common law payment 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) as |
|
|
indicated in the attached statement(s) or progress payment |
|
|
request(s), except for unpaid retention, pending modifications and |
|
|
changes, or other items furnished. |
|
|
"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 in regard to the attached |
|
|
statement(s) or progress payment request(s). |
|
|
"Date ____________________________ |
|
|
"_________________________________ (Company name) |
|
|
"By ______________________________ (Signature) |
|
|
"_________________________________ (Title)" |
|
|
(d) If a claimant or potential claimant is required to |
|
|
execute a waiver and release in exchange for or to induce the |
|
|
payment of a final payment and is not paid in good and sufficient |
|
|
funds 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 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 right, any right arising from a payment |
|
|
bond that complies with a state or federal statute, any common law |
|
|
payment 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 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). |
|
|
"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 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 up to the date of this waiver |
|
|
and release. |
|
|
"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: |
|
|
(1) 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 10-point type, that reads: |
|
|
"NOTICE: |
|
|
"This document waives rights unconditionally and states that |
|
|
you have been paid for giving up those rights. This document may be |
|
|
enforceable against you if you sign it, even if you have not been |
|
|
paid. It is unlawful for a person to require you to sign this |
|
|
document if you have not been paid the payment amount set forth |
|
|
below. If you have not been paid, use a conditional release form."; |
|
|
and |
|
|
(2) below the notice, read: |
|
|
"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 mechanic's lien right, any right arising |
|
|
from a payment bond that complies with a state or federal statute, |
|
|
any common law payment 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. |
|
|
"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 up to the date of this waiver |
|
|
and release. |
|
|
"Date ____________________________ |
|
|
"_________________________________ (Company name) |
|
|
"By ______________________________ (Signature) |
|
|
"_________________________________ (Title)" |
|
|
Sec. 53.285. ATTEMPTED COMPLIANCE. (a) A waiver or release |
|
|
shall be construed to comply with this subchapter and is |
|
|
enforceable in the same manner as a waiver and release under this |
|
|
subchapter if the waiver or release: |
|
|
(1) is furnished in attempted compliance with this |
|
|
subchapter; or |
|
|
(2) evidences by its terms intent to comply with this |
|
|
subchapter. |
|
|
(b) Any provision in any waiver or release furnished in |
|
|
attempted compliance with this subchapter that expands or restricts |
|
|
the rights or liabilities provided under this subchapter shall be |
|
|
disregarded and the provisions of this subchapter shall be read |
|
|
into that waiver or release. |
|
|
(c) This section expires August 31, 2012. |
|
|
Sec. 53.286. 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 a written agreement to |
|
|
subordinate, release, or satisfy all or part of a lien claimed after |
|
|
a notice of lien has been filed. |
|
|
SECTION 3. The changes in law made by this Act apply only to |
|
|
a contract executed on or after September 1, 2011. A contract |
|
|
executed before September 1, 2011, is covered by the law applicable |
|
|
to the contract immediately before the effective date of this Act, |
|
|
and the former law is continued in effect for that purpose. |
|
|
SECTION 4. This Act takes effect September 1, 2011. |