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INTRODUCED
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HOUSE COMMITTEE
SUBSTITUTE
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SECTION 1. Section
3503.051(3), Insurance Code, is amended.
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SECTION 1. Same as introduced
version.
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SECTION 2. Section 53.001, Property
Code, is amended by amending Subdivisions (2), (12), (13), and (14) and
adding Subdivisions (2-a), (3-a), (5-a), (5-b), (5-c), (7-a), and (7-b) to
read as follows:
(2) "Improved"
means, in reference to real property, having an improvement, as defined by
this section.
(2-a)
"Improvement" means a house, building, or other improvement to
the real property of an owner. The term includes:
(A) improvements
constructed adjacent to the real property under an original contract with
the owner, including [abutting] sidewalks and streets and
utilities in or on those sidewalks and streets;
(B) clearing, grubbing,
draining, or fencing of land;
(C) wells, cisterns, tanks,
reservoirs, or artificial lakes or pools made for supplying or storing
water;
(D) pumps, siphons, and
windmills or other machinery or apparatuses used for raising water for
stock, domestic use, or irrigation; [and]
(E) planting orchard trees,
grubbing out orchards and replacing trees, and pruning of orchard trees;
(F) levees or embankments
erected for the reclamation of overflow land along a river or creek; and
(G) railroads.
(3-a) "Lien
website" means the Internet website established under Subchapter A-1.
(5-a) "Notice of
commencement" means a notice described by Section 53.125.
(5-b) "Notice of
demand" means a notice described by Section 53.0521.
(5-c) "Notice of
furnishing" is a notice required under Section 53.0561.
(7-a) "Owner"
means a person who owns any interest in real property or an authorized
agent, trustee, or receiver of the person.
(7-b) "Reputed
owner" means a person who is:
(A) identified as an
owner in a notice of commencement required under this chapter or in an
original contract for an improvement; or
(B) generally considered
or reputed to be the owner of the real property being improved.
(12) "Specially
fabricated material" means material fabricated for use as a component
of the construction or repair of an improvement so as to be
reasonably unsuitable for use elsewhere.
(13)
"Subcontractor" means a person who has furnished labor or
materials to fulfill an obligation to an original contractor or to a
subcontractor of any tier to perform all or part of the work
required by an original contract.
(14) "Work" means
any part of labor done, material furnished, or materials specially
fabricated for the construction or repair of an improvement
performed under an original contract.
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SECTION 2. Section 53.001,
Property Code, is amended by amending Subdivisions (2), (12), (13), and
(14) and adding Subdivisions (2-a), (3-a), (5-a), (5-b), (5-c), (5-d),
(7-a), and (7-b) to read as follows:
(2) "Improved"
means, in reference to real property, having an improvement, as defined by
this section.
(2-a)
"Improvement" means a house, building, or other improvement to
the real property of an owner. The term includes:
(A) improvements
constructed adjacent to the real property under an original contract with
the owner, including [abutting] sidewalks and streets and
utilities in or on those sidewalks and streets;
(B) clearing, grubbing,
draining, or fencing of land;
(C) wells, cisterns, tanks,
reservoirs, or artificial lakes or pools made for supplying or storing
water;
(D) pumps, siphons, and
windmills or other machinery or apparatuses used for raising water for
stock, domestic use, or irrigation; [and]
(E) planting orchard trees,
grubbing out orchards and replacing trees, and pruning of orchard trees;
(F) levees or embankments
erected for the reclamation of overflow land along a river or creek; and
(G) railroads.
(3-a) "Lien
website" means the Internet website established under Subchapter A-1.
(5-a) "Notice of
commencement" means a notice described by Section 53.125.
(5-b) "Notice of
demand" means a notice described by Section 53.0521.
(5-c) "Notice of
furnishing" means a notice described by Section 53.0561.
(5-d) "Notice of unpaid balance" means a notice
described by Section 53.0562.
(7-a) "Owner"
means a person who owns any interest in real property or an authorized
agent, trustee, or receiver of the person.
(7-b) "Reputed
owner" means a person who is:
(A) identified as an
owner in a notice of commencement required under this chapter or in an
original contract for an improvement; or
(B) generally considered
or reputed to be the owner of the real property being improved.
(12) "Specially
fabricated material" means material fabricated for use as a component
of the construction or repair of an improvement so as to be
reasonably unsuitable for use elsewhere.
(13)
"Subcontractor" means a person who has furnished labor or
materials to fulfill an obligation to an original contractor or to a
subcontractor of any tier to perform all or part of the work
required by an original contract.
(14) "Work" means
any part of labor done, material furnished, or materials specially fabricated
for the construction or repair of an improvement performed under
an original contract.
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SECTION 3. Section 53.003,
Property Code, is amended by amending Subsections (a) and (c) and adding
Subsection (e) to read as follows:
(a) This section applies to
notices required by this chapter [Subchapters B through G and K].
In this section, "notice" includes any written communication
required under this chapter.
(c) If a notice is
sent by registered or certified mail, deposit or mailing of the notice in the
United States mail in the form required constitutes compliance with the
notice requirement. The effective date of the notice is the date the
notice is deposited in the United States mail. This subsection does
not apply if the law requires receipt of the notice by the person to whom
it is directed.
(e) A notice to an owner
may be filed on the lien website
under the protocols established for the website for receipt of the notice.
A notice may be sent by an owner by filing
the notice on the lien website or by e-mail with an electronic record of
delivery to the e-mail address provided to the owner in a notice of
furnishing by a person required to be provided with the notice. The
effective date of the notice is the date the notice is sent to the lien website
under the website's protocols or the date the e-mail is sent. An e-mail
sent to a recipient is prima facie evidence of delivery of a message to an
e-mail address to which it is sent.
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SECTION 3. Section 53.003,
Property Code, is amended by amending Subsections (a) and (c) and adding
Subsection (e) to read as follows:
(a) This section applies to
notices required by this chapter [Subchapters B through G and K].
In this section, "notice" includes any written communication
required under this chapter.
(c) If a notice is
sent by registered or certified mail, deposit or mailing of the notice in
the United States mail in the form required constitutes compliance with the
notice requirement. The effective date of the notice is the date the
notice is deposited in the United States mail. This subsection does
not apply if the law requires receipt of the notice by the person to whom
it is directed.
(e) A notice to an owner
may be posted on the lien website
under the protocols established for the website for receipt of the notice.
A notice may be sent by an owner by posting
the notice on the lien website or by e-mail with an electronic record of
delivery to the e-mail address provided to the owner in a notice of
furnishing by a person required to be provided with the notice. The
effective date of the notice is the date the notice is sent to the lien
website under the website's protocols or the date the e-mail is sent. An
e-mail sent to a recipient is prima facie evidence of delivery of a message
to an e-mail address to which it is sent.
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SECTION 4. Subchapter A,
Chapter 53, Property Code, is amended.
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SECTION 4. Same as introduced
version.
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SECTION 5. Chapter 53,
Property Code, is amended.
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SECTION 5. Same as introduced
version.
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SECTION 6. Section
53.021(a), Property Code, is amended.
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SECTION 6. Same as introduced
version.
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SECTION 7. Section 53.022,
Property Code, is amended.
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SECTION 7. Same as introduced
version.
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SECTION 8. Section 53.024,
Property Code, is amended.
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SECTION 8. Same as introduced
version.
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SECTION 9. Section 53.026(a),
Property Code, is amended.
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SECTION 9. Same as introduced
version.
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SECTION 10. Section 53.052,
Property Code, is amended to read as follows:
Sec. 53.052. FILING OF LIEN
CLAIM AFFIDAVIT. (a) Except as provided by Subsection (b) or
Section 53.0521, an original contractor or subcontractor
[the person] claiming a
[the] lien under this chapter must file a lien claim [an]
affidavit as provided by Subsection (c) [with the county clerk of
the county in which the property is located or into which the railroad
extends] not later than the 15th day of the fourth calendar month after
the date the work under the original contract is completed or the
original contract is terminated [day on which the indebtedness
accrues].
(b) Except as provided by
Section 53.0521, an original contractor or subcontractor
[A person] claiming a
lien on [arising from] a residential construction project
must file a lien claim [an] affidavit as provided by
Subsection (c) [with the county clerk of the county in which the
property is located] not later than the 15th day of the third calendar
month after the date the work under the original contract is completed
or the original contract is terminated [day on which the
indebtedness accrues].
(c) A lien claim
affidavit must be filed with the county clerk of the county in which the
property is located or into which the railroad extends. The county
clerk shall record the affidavit in records kept for that purpose and shall
index and cross-index the affidavit in the names of the claimant, the
original contractor, and the owner. Failure of the county clerk to properly
record or index a filed affidavit does not invalidate the lien.
(d) For purposes of this
section, an original contract is terminated on the date an owner posts a
notice of termination on the lien website. If a notice of commencement has
not been filed and posted as required by
Section 53.125, the owner must send a notice of termination to each person
who has filed a notice of
furnishing.
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SECTION 10. Section 53.052,
Property Code, is amended to read as follows:
Sec. 53.052. FILING OF LIEN
CLAIM AFFIDAVIT. (a) Except as provided by Subsection (b) or
Section 53.0521, an original contractor or subcontractor, including an employee described by Section
53.0562(a)(1),
[the person] claiming a
[the] lien under this chapter must file a lien claim [an]
affidavit as provided by Subsection (c) [with the county clerk of
the county in which the property is located or into which the railroad
extends] not later than the 15th day of the fourth calendar month after
the date the work under the original contract is completed or the
original contract is terminated [day on which the indebtedness
accrues].
(b) Except as provided by
Section 53.0521, an original contractor or subcontractor, including an employee described by Section
53.0562(a)(1),
[A person] claiming a
lien on [arising from] a residential construction project
must file a lien claim [an] affidavit as provided by
Subsection (c) [with the county clerk of the county in which the
property is located] not later than the 15th day of the third calendar
month after the date the work under the original contract is completed
or the original contract is terminated [day on which the
indebtedness accrues].
(c) A lien claim
affidavit must be filed with the county clerk of the county in which the
property is located or into which the railroad extends. The county
clerk shall record the affidavit in records kept for that purpose and shall
index and cross-index the affidavit in the names of the claimant, the
original contractor, and the owner. Failure of the county clerk to properly
record or index a filed affidavit does not invalidate the lien.
(d) For purposes of this
section, an original contract is terminated on the date an owner posts a
notice of termination on the lien website. If a notice of commencement has
not been filed and posted under
Section 53.125, the owner must send a notice of termination to each person
who has given the owner a notice
of furnishing.
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SECTION 11. Subchapter C,
Chapter 53, Property Code, is amended by adding Section 53.0521 to read as
follows:
Sec. 53.0521. NOTICE OF
DEMAND. (a) If work under an original contract has been completed or the
original contract has been terminated, an owner may send a notice of demand
to the original contractor or subcontractor requesting the contractor or
subcontractor to file a lien claim affidavit. If the notice is based on
the termination of the original contract, the notice must state that the
original contract was terminated and the date of the termination. An owner
may not send the notice before the original contract has been terminated.
A notice sent before work under the original contract has been completed is
effective only as to a claimant that has completed the claimant's work and
is void as to any other claimant.
(b) For purposes of this
section, an original contract is terminated on the date an owner posts a
notice of termination on the lien website. If a notice of commencement has
not been filed and posted as required by
Section 53.125, the owner must send a notice of termination to each person
who has filed a notice of
furnishing.
(c) Notwithstanding
Section 53.003, a notice of demand must be sent by registered or certified
mail to a subcontractor at the subcontractor's address provided by the
notice of furnishing or to an original contractor at the original
contractor's last known address.
(d) If an owner sends a
notice of demand, a claimant that has completed the claimant's work must,
not later than the 30th day after the date the notice of demand is sent,
file a lien claim affidavit for a claim the claimant has not included in a
previously filed lien claim affidavit.
(e) A claimant that has
not completed the claimant's work on the date the owner sends a notice of
demand must file a lien claim affidavit as provided by Section 53.052(a) or
(b), as applicable.
(f) An original
contractor or subcontractor waives any statutory lien rights that have not
been perfected if the contractor or subcontractor does not comply with this
section.
(g) A notice of demand
must be conspicuously printed in bold type and in all capital letters not
smaller than 10-point type and must state the following:
"NOTICE OF DEMAND
"WARNING: THIS NOTICE
BRIEFLY SUMMARIZES LEGAL REQUIREMENTS STATED BY SECTION 53.0521, PROPERTY
CODE. YOU SHOULD CONSULT AN ATTORNEY TO FULLY UNDERSTAND YOUR RIGHTS AND
OBLIGATIONS.
"THE OWNER IS
DEMANDING THAT YOU FILE A LIEN CLAIM AFFIDAVIT NOT LATER THAN THE 30TH DAY
AFTER THE DATE THIS NOTICE WAS SENT TO YOU. IF THE ORIGINAL CONTRACT HAS
BEEN TERMINATED OR IF YOU HAVE COMPLETED YOUR WORK, YOU ARE REQUIRED, NOT
LATER THAN THE 30TH DAY AFTER THE DATE THIS NOTICE WAS SENT TO YOU, TO FILE
YOUR LIEN CLAIM AFFIDAVIT FOR ANY CLAIMS YOU HAVE NOT INCLUDED IN A LIEN
CLAIM AFFIDAVIT YOU HAVE PREVIOUSLY FILED OR YOU MAY LOSE ANY STATUTORY
LIEN RIGHTS THAT YOU HAVE NOT PREVIOUSLY PERFECTED.
"IF THE ORIGINAL
CONTRACT IS NOT TERMINATED OR YOU HAVE NOT COMPLETED YOUR WORK, THE
DEADLINE TO FILE YOUR LIEN CLAIM AFFIDAVIT IS PROVIDED BY SECTION 53.052(a)
OR (b), PROPERTY CODE."
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SECTION 11. Subchapter C,
Chapter 53, Property Code, is amended by adding Section 53.0521 to read as
follows:
Sec. 53.0521. NOTICE OF
DEMAND. (a) If work under an original contract has been completed or the
original contract has been terminated, an owner may send a notice of demand
to the original contractor or subcontractor requesting the contractor or
subcontractor to file a lien claim affidavit. If the notice is based on
the termination of the original contract, the notice must state that the
original contract was terminated and the date of the termination. An owner
may not send the notice before the original contract has been terminated.
A notice sent before work under the original contract has been completed is
effective only as to a claimant that has completed the claimant's work and
is void as to any other claimant.
(b) For purposes of this
section, an original contract is terminated on the date an owner posts a
notice of termination on the lien website. If a notice of commencement has
not been filed and posted under
Section 53.125, the owner must send a notice of termination to each person
who has provided a notice of
furnishing.
(c) Notwithstanding
Section 53.003, a notice of demand must be sent by registered or certified
mail to a subcontractor at the subcontractor's address provided by the
notice of furnishing or to an original contractor at the original
contractor's last known address.
(d) If an owner sends a
notice of demand, a claimant that has completed the claimant's work must,
not later than the 30th day after the date the notice of demand is sent,
file a lien claim affidavit for a claim the claimant has not included in a
previously filed lien claim affidavit.
(e) A claimant that has
not completed the claimant's work on the date the owner sends a notice of
demand must file a lien claim affidavit as provided by Section 53.052(a) or
(b), as applicable.
(f) An original
contractor or subcontractor waives any statutory lien rights that have not
been perfected if the contractor or subcontractor does not comply with this
section.
(g) A notice of demand
must be conspicuously printed in bold type and in all capital letters not
smaller than 10-point type and must state the following:
"NOTICE OF DEMAND
"WARNING: THIS NOTICE
BRIEFLY SUMMARIZES LEGAL REQUIREMENTS STATED BY SECTION 53.0521, PROPERTY
CODE. YOU SHOULD CONSULT AN ATTORNEY TO FULLY UNDERSTAND YOUR RIGHTS AND
OBLIGATIONS.
"THE OWNER IS
DEMANDING THAT YOU FILE A LIEN CLAIM AFFIDAVIT NOT LATER THAN THE 30TH DAY
AFTER THE DATE THIS NOTICE WAS SENT TO YOU. IF THE ORIGINAL CONTRACT HAS
BEEN TERMINATED OR IF YOU HAVE COMPLETED YOUR WORK, YOU ARE REQUIRED, NOT
LATER THAN THE 30TH DAY AFTER THE DATE THIS NOTICE WAS SENT TO YOU, TO FILE
YOUR LIEN CLAIM AFFIDAVIT FOR ANY CLAIMS YOU HAVE NOT INCLUDED IN A LIEN
CLAIM AFFIDAVIT YOU HAVE PREVIOUSLY FILED OR YOU MAY LOSE ANY STATUTORY
LIEN RIGHTS THAT YOU HAVE NOT PREVIOUSLY PERFECTED.
"IF THE ORIGINAL
CONTRACT IS NOT TERMINATED OR YOU HAVE NOT COMPLETED YOUR WORK, THE
DEADLINE TO FILE YOUR LIEN CLAIM AFFIDAVIT IS PROVIDED BY SECTION 53.052(a)
OR (b), PROPERTY CODE."
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SECTION 12. The heading to
Section 53.054, Property Code, is amended.
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SECTION 12. Same as
introduced version.
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SECTION 13. Section 53.054,
Property Code, is amended by amending Subsections (a) and (c) to read as
follows:
(a) The lien claim
affidavit must be signed by the person claiming the lien or by another
person on the claimant's behalf and must contain substantially:
(1) a sworn statement of the
amount of the claim;
(2) the name and last known
address of the owner or reputed owner;
(3) a general statement of
the kind of work done and materials furnished by the claimant [and, for
a claimant other than an original contractor, a statement of each month in
which the work was done and materials furnished for which payment is
requested];
(4) the name and last known
address of the person by whom the claimant was employed or to whom the
claimant furnished the materials or labor;
(5) the name and last known
address of the original contractor;
(6) a description, legally
sufficient for identification, of the property sought to be charged with
the lien;
(7) the claimant's name,
mailing address, and, if different, physical address; and
(8) for a claimant other
than an original contractor, a statement identifying the date each notice
of furnishing [the claim] was sent
to the owner [and the method by which the notice was sent].
(c) The affidavit is not
required to set forth individual items of work done or material furnished
or specially fabricated. The affidavit may use any broad descriptive
terms, abbreviations, or symbols customary in the trade to
describe the work done or material furnished.
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SECTION 13. Sections
53.054(a) and (c), Property Code, are amended to read as follows:
(a) The lien claim
affidavit must be signed by the person claiming the lien or by another
person on the claimant's behalf and must contain substantially:
(1) a sworn statement of the
amount of the claim;
(2) the name and last known
address of the owner or reputed owner;
(3) a general statement of
the kind of work done and materials furnished by the claimant [and, for
a claimant other than an original contractor, a statement of each month in
which the work was done and materials furnished for which payment is
requested];
(4) the name and last known
address of the person by whom the claimant was employed or to whom the
claimant furnished the materials or labor;
(5) the name and last known
address of the original contractor;
(6) a description, legally
sufficient for identification, of the property sought to be charged with
the lien;
(7) the claimant's name,
mailing address, and, if different, physical address; and
(8) for a claimant other
than an original contractor, a statement identifying the date each notice
of furnishing or notice of unpaid
balance, as applicable, [the claim] was given [sent]
to the owner [and the method by which the notice was sent].
(c) The affidavit is not
required to set forth individual items of work done or material furnished
or specially fabricated. The affidavit may use any broad descriptive
terms, abbreviations, or symbols customary in the trade to
describe the work done or material furnished.
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SECTION 14. Section 53.055,
Property Code, is amended to read as follows:
Sec. 53.055. NOTICE OF FILED
LIEN CLAIM AFFIDAVIT. (a) A person who files a lien claim [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 or file a
copy with the lien website
not later than the 10th [fifth] day after the date the
affidavit is filed with the county clerk.
(b) If the person is not an
original contractor, and the person has not filed a copy of the affidavit with the lien website under Subsection (a), the
person must also send a copy of the affidavit to the original contractor at
the original contractor's last known business or residence address in
[within] the same manner and time that the affidavit must be sent
to the owner under Subsection (a) [period].
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SECTION 14. Section 53.055,
Property Code, is amended to read as follows:
Sec. 53.055. NOTICE OF FILED
LIEN CLAIM AFFIDAVIT. (a) A person who files a lien claim [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 or post a
copy on the lien website not
later than the 10th [fifth] day after the date the affidavit
is filed with the county clerk.
(b) If the person is not an
original contractor, and the person has not posted a copy of the affidavit on the lien website under Subsection (a), the person
must also send a copy of the affidavit to the original contractor at the original
contractor's last known business or residence address in [within]
the same manner and time that the affidavit must be sent to the owner
under Subsection (a) [period].
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SECTION 15. Subchapter C,
Chapter 53, Property Code, is amended by adding Section 53.0561 to read as
follows:
Sec. 53.0561. NOTICE OF
FURNISHING.
(a) A person who
contracts with a person other than the owner and who has a lien as an
original contractor under Section 53.026(a) must give a notice of
furnishing to the owner or reputed owner for the lien to be valid.
A claimant other than an
original contractor must give a notice of furnishing to the owner or
reputed owner and the original contractor for the claimant's lien to be
valid.
(b) The notice of
furnishing must include:
(1) a general description
of the labor or material furnished or to be furnished by the claimant and,
for specially fabricated material, a separate description of the specially
fabricated material, that may include a list of individual items of work or
material or use terms, abbreviations, or symbols customary in the trade;
(2) the name, address,
and telephone number of the claimant;
(3) the e-mail address of
the claimant, if the claimant wants to receive notices of filings on the lien website;
(4) the name, address,
and telephone number of the person with whom the claimant contracted to
furnish the labor or material;
(5) a legal description,
street address, or other description that identifies the real property to
which the labor or material was furnished or will be furnished; and
(6) a conspicuous
statement in bold type as follows:
"THIS IS NOT A LIEN
OR A CLAIM FOR A LIEN. THIS IS ONLY A NOTICE TO THE OWNER THAT A CONTRACTOR
IS FURNISHING OR INTENDS TO FURNISH LABOR OR MATERIAL TO THE PROJECT. THIS
NOTICE IS REQUIRED TO PRESERVE THE CONTRACTOR'S LIEN RIGHTS UNDER CHAPTER
53, PROPERTY CODE."
(c) Except as provided by
Subsection (d), the notice of furnishing does not preserve a lien right for
labor performed or material furnished or specially fabricated earlier than 45 days before the date the notice is
provided as required by this section.
(d) If the owner has
filed and posted a notice of commencement as
required by Section 53.125 before the subcontractor begins
performing labor or furnishing or specially fabricating material, the
notice of furnishing does not preserve a lien right for labor performed or
material furnished or specially fabricated by the subcontractor earlier
than 15 days before the date the
notice of furnishing is provided.
(e) Only one notice of
furnishing to an owner is required for all labor or material furnished or
to be furnished by each subcontractor. If a subcontractor contracts to
perform work for the improvement of the owner's property under more than
one original contract, the subcontractor must identify each original
contract in the notice of furnishing or must furnish separate notices of
furnishing for each original contract.
(f) The notice of
furnishing is not invalid if, after the date of the notice, the
subcontractor furnishes labor or material that is not within the scope of
the notice's general description of the labor and material furnished or to
be furnished.
(g) A notice of furnishing
that does not include the subcontractor's e-mail address is not invalid.
No
equivalent provision.
No
equivalent provision.
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SECTION 15. Subchapter C,
Chapter 53, Property Code, is amended by adding Sections 53.0561, 53.0562,
53.0563, and 53.059 to read as follows:
Sec. 53.0561. NOTICE OF
FURNISHING. (a) Except as provided by
Section 53.0562:
(1) a person who
contracts with a person other than the owner and who has a lien as an
original contractor under Section 53.026(a) must give a notice of
furnishing to the owner or reputed owner for the lien to be valid; and
(2) a claimant other than
an original contractor must give a notice of furnishing to the owner or
reputed owner and the original contractor for the claimant's lien to be
valid.
(b) The notice of
furnishing must include:
(1) a general description
of the labor or material furnished or to be furnished by the claimant and,
for specially fabricated material, a separate description of the specially
fabricated material, that may include a list of individual items of work or
material or use terms, abbreviations, or symbols customary in the trade;
(2) the name, address,
and telephone number of the claimant;
(3) the e-mail address of
the claimant, if the claimant wants to receive notices of postings on the lien website;
(4) the name, address,
and telephone number of the person with whom the claimant contracted to
furnish the labor or material;
(5) a legal description,
street address, or other description that identifies the real property to
which the labor or material was furnished or will be furnished; and
(6) a conspicuous
statement in bold type as follows:
"THIS IS NOT A LIEN
OR A CLAIM FOR A LIEN. THIS IS ONLY A NOTICE TO THE OWNER THAT A CONTRACTOR
IS FURNISHING OR INTENDS TO FURNISH LABOR OR MATERIAL TO THE PROJECT. THIS
NOTICE IS REQUIRED TO PRESERVE THE CONTRACTOR'S LIEN RIGHTS UNDER CHAPTER
53, PROPERTY CODE."
(c) Except as provided by
Subsection (d), the notice of furnishing does not preserve a lien right for
labor performed or material furnished or specially fabricated earlier than 60 days before the date the notice is
provided as required by this section.
(d) If the owner has
filed and posted a notice of commencement under
Section 53.125 before the
subcontractor begins performing labor or furnishing or specially
fabricating material, the notice of furnishing does not preserve a lien
right for labor performed or material furnished or specially fabricated by
the subcontractor earlier than 30 days
before the date the notice of furnishing is provided.
(e) Only one notice of
furnishing to an owner is required for all labor or material furnished or
to be furnished by each subcontractor. If a subcontractor contracts to
perform work for the improvement of the owner's property under more than
one original contract, the subcontractor must identify each original
contract in the notice of furnishing or must furnish separate notices of
furnishing for each original contract.
(f) The notice of
furnishing is not invalid if, after the date of the notice, the
subcontractor furnishes labor or material that is not within the scope of
the notice's general description of the labor and material furnished or to
be furnished.
(g) A notice of
furnishing that does not include the subcontractor's e-mail address is not
invalid.
Sec. 53.0562. NOTICE OF
UNPAID BALANCE. (a) Section 53.0561 does not apply, and a claimant must
send the notice described by Subsection (b), if:
(1) the claimant is an
employee of a contractor or subcontractor and personally labored in the
construction or repair of the improvement, and the claimant's claim is for
wages for the personal labor furnished; or
(2) the improvement is a
house of not more than four self-contained units intended for residential
purposes on a single lot or tract of land, or related land development
activity on the lot or tract necessary for the development of the house.
(b) Except as provided by
this subsection, the claimant must give the owner or reputed owner, with a
copy to the original contractor, written notice of the unpaid balance not
later than the 15th day of the third month following each month in which
all or part of the labor was performed, material was furnished, or material
was specially fabricated by the claimant. For residential construction
projects governed by Subchapter K, the claimant must send the notice of
unpaid balance not later than the 15th day of the second month following
each month in which all or part of the labor was performed, material was
furnished, or material was specially fabricated by the claimant. The
notice of unpaid balance must be sent by registered or certified mail,
return receipt requested, to the owner, reputed owner, or original
contractor, as applicable, at the owner's, reputed owner's, or original
contractor's last known business address or residence address.
(c) A copy of a statement
or bill in the usual and customary form is a sufficient notice of unpaid
balance under this section.
Sec. 53.0563. WITHHOLDING
OF FUNDS AFTER NOTICE OF UNPAID BALANCE; OWNER LIABILITY. (a) An owner
who receives a written notice of unpaid balance under Section 53.0562 may
immediately withhold from payments to the original contractor an amount
necessary to pay the amount of the unpaid balance stated in the notice.
(b) Unless payment is
made 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 until:
(1) the time for filing
the lien claim affidavit has passed; or
(2) if a lien claim
affidavit has been filed, until the lien claim has been satisfied or
released.
(c) An owner is liable
and an owner's property is subject to a claim for an unpaid balance if:
(1) the owner has
received the written notice of unpaid balance required by Section 53.0562;
(2) the lien has been
secured; and
(3) the claim has been
reduced to final judgment.
(d) An owner that is
liable under Subsection (c) is liable for:
(1) 10 percent of the
amount of the original contract;
(2) any amount the owner
is authorized to withhold from the original contractor under this section;
and
(3) costs and attorney's
fees awarded under Section 53.156.
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|
SECTION 16. Subchapter C,
Chapter 53, Property Code, is amended by adding Section 53.059 to read as
follows:
Sec. 53.059. NOTICE OF
COMPLETION. (a) If an owner has filed or
has posted on the lien website a notice of commencement as required by Section 53.125 and the
work under an original contract has been completed or the original contract
has been terminated, the owner may file a notice of completion with the
county clerk of the county in which the owner's property is located and
post the notice on the lien website. The notice must contain:
(1) the name and address
of the owner;
(2) the name and address
of each original contractor covered by the notice;
(3) a description, legally
sufficient for identification, of the real property on which the
improvements are located;
(4) a description of the
work furnished under an original contract covered by the notice;
(5) a statement that the
work under an original contract covered by the notice has been completed or
that the original contract was terminated; and
(6) the date of the
completion or termination.
(b) Not later than the
10th day after the notice of completion is posted on the lien website, the
owner must send a copy of the notice:
(1) to each original
contractor identified in the notice; and
(2) by e-mail to each
claimant that has sent a notice
of furnishing to the owner and has provided an e-mail address to the owner.
(c) For purposes of
Section 53.052, the later of the date the notice of completion is filed or
the date the notice is posted on the lien website is considered the date
the work under an original contract identified in the notice is completed
or the original contract is terminated. This subsection does not apply to
a person to whom the notice of completion was not sent as required by this
section.
(d) Except as provided by
Subsection (e), the notice of completion must contain the following
statement in bold type in all capital letters:
"A CLAIMANT WILL LOSE
THE RIGHT TO PERFECT A LIEN IF THE CLAIMANT DOES NOT FILE A LIEN CLAIM
AFFIDAVIT ON OR BEFORE THE 15TH DAY OF THE FOURTH MONTH AFTER THE DATE OF
COMPLETION OF THE WORK."
(e) The notice of
completion for a residential construction project must contain the
following statement in bold type in all capital letters:
"A CLAIMANT WILL LOSE
THE RIGHT TO PERFECT A LIEN IF THE CLAIMANT DOES NOT FILE A LIEN CLAIM
AFFIDAVIT ON OR BEFORE THE 15TH DAY OF THE THIRD MONTH AFTER THE DATE OF
COMPLETION OF THE WORK."
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Sec. 53.059. NOTICE OF
COMPLETION. (a) If an owner has filed and
posted on the lien website a notice of commencement under Section 53.125 and the work under an original
contract has been completed or the original contract has been terminated,
the owner may file a notice of completion with the county clerk of the
county in which the owner's property is located and post the notice on the
lien website. The notice must contain:
(1) the name and address
of the owner;
(2) the name and address
of each original contractor covered by the notice;
(3) a description,
legally sufficient for identification, of the real property on which the
improvements are located;
(4) a description of the
work furnished under an original contract covered by the notice;
(5) a statement that the
work under an original contract covered by the notice has been completed or
that the original contract was terminated; and
(6) the date of the
completion or termination.
(b) Not later than the
10th day after the notice of completion is posted on the lien website, the
owner must send a copy of the notice:
(1) to each original
contractor identified in the notice; and
(2) by e-mail to each
claimant that has provided a
notice of furnishing to the owner and has provided an e-mail address to the
owner.
(c) For purposes of
Section 53.052, the later of the date the notice of completion is filed or
the date the notice is posted on the lien website is considered the date
the work under an original contract identified in the notice is completed
or the original contract is terminated. This subsection does not apply to
a person to whom the notice of completion was not sent as required by this
section.
(d) Except as provided by
Subsection (e), the notice of completion must contain the following statement
in bold type in all capital letters:
"A CLAIMANT WILL LOSE
THE RIGHT TO PERFECT A LIEN IF THE CLAIMANT DOES NOT FILE A LIEN CLAIM
AFFIDAVIT ON OR BEFORE THE 15TH DAY OF THE FOURTH MONTH AFTER THE DATE OF
COMPLETION OF THE WORK."
(e) The notice of completion
for a residential construction project must contain the following statement
in bold type in all capital letters:
"A CLAIMANT WILL LOSE
THE RIGHT TO PERFECT A LIEN IF THE CLAIMANT DOES NOT FILE A LIEN CLAIM
AFFIDAVIT ON OR BEFORE THE 15TH DAY OF THE THIRD MONTH AFTER THE DATE OF
COMPLETION OF THE WORK."
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|
SECTION 17. Section 53.081,
Property Code, is amended.
|
SECTION 16. Same as
introduced version.
|
|
SECTION 18. Section 53.082,
Property Code, is amended.
|
SECTION 17. Substantially the
same as introduced version.
|
|
SECTION 19. Subchapter D,
Chapter 53, Property Code, is amended.
|
SECTION 18. Same as
introduced version.
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|
SECTION 20. Subchapter D,
Chapter 53, Property Code, is amended by adding Section 53.0841 to read as
follows:
Sec. 53.0841. PERSONAL
LIABILITY FOR LIENS.
(a) Except as provided by Subsection (b), an owner is
personally liable for the aggregate amount of the liens perfected on the
owner's property under this chapter.
An owner's personal
liability
is not affected by a subsequent
foreclosure or other
transfer of the owner's interest in all or part of the property.
(b) Subject to Section
53.122(b), the aggregate amount of liens of the original contractor and the
subcontractors may not exceed the contract price of the original contract,
as may be modified, for the work. Duplicated claims asserted by claimants
within the same chain of contract may not be added more than once in
determining the aggregate amount of liens. For purposes of this section, a
payment by the owner to the original contractor does not reduce the
aggregate liability of the owner for liens.
(c) A purchaser of
property subject to a lien claim under this chapter is not personally
liable for the lien claim in a foreclosure action brought by a claimant, except
the purchaser may be held liable for costs and attorney's fees awarded
under Section 53.156.
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SECTION 19. Subchapter D,
Chapter 53, Property Code, is amended by adding Section 53.0841 to read as
follows:
Sec. 53.0841. PERSONAL
LIABILITY FOR LIENS.
(a) Subject to this section,
an owner is personally
liable for the aggregate amount of the liens perfected on the owner's
property under this chapter.
(b) Subject to Subsection (e), the owner is not personally
liable for more than 10 percent of the value of the work.
An owner's personal
liability:
(1) does not affect any lien filed on the owner's property
under this chapter; and
(2) is not affected by a
subsequent foreclosure or other transfer of the owner's interest in all or
part of the property.
(c) Subject to Section
53.122(b), the aggregate amount of liens of the original contractor and the
subcontractors may not exceed the contract price of the original contract,
as may be modified, for the work. Duplicated claims asserted by claimants
within the same chain of contract may not be added more than once in
determining the aggregate amount of liens. For purposes of this section, a
payment by the owner to the original contractor does not reduce the aggregate
liability of the owner for liens.
(d) A purchaser of
property subject to a lien claim under this chapter is not personally
liable for the lien claim in a foreclosure action brought by a claimant,
except the purchaser may be held liable for costs and attorney's fees
awarded under Section 53.156.
(e) An award of costs and attorney's fees under Section 53.156
is not limited by Subsection (b).
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|
SECTION 21. The heading to
Section 53.085, Property Code, is amended.
|
SECTION 20. Same as
introduced version.
|
|
SECTION 22. Section 53.085,
Property Code, is amended.
|
SECTION 21. Same as
introduced version except for recitation.
|
|
SECTION 23. Section
53.122(a), Property Code, is amended.
|
SECTION 22. Same as
introduced version.
|
|
SECTION 24. Section 53.124, Property
Code, is amended.
|
SECTION 23. Same as
introduced version.
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|
SECTION 25. Subchapter F,
Chapter 53, Property Code, is amended by adding Section 53.125 to read as
follows:
Sec. 53.125. NOTICE OF
COMMENCEMENT. (a) An owner must
file a notice of commencement with the county clerk of the county in which
the real property being improved under an original contract is located and post the notice on the lien
website.
The notice must be
acknowledged and be in a form that substantially complies with the
following:
"NOTICE OF
COMMENCEMENT
"Improvements will be
made to certain real property, and in accordance with Chapter 53, Property
Code, the following information is provided by this notice of commencement:
"(1) Legal
description and, if applicable, street address of property:
_______________.
"(2) Brief
description of work to be performed or materials to be furnished:
_______________.
"(3) Work or
materials not included in this notice of commencement: _______________.
"(4) Owner
information or lessee information if the lessee contracted for the work:
(A) Name and address:
_______________.
(B) Interest in property
(check appropriate box):
□ Fee simple title
□ Lease
□ Other (explain):
_______________.
(C) Name and address of
fee simple titleholder to property (if different from owner listed above):
_______________.
"(5) Original
contractor(s) for work or designated portions of the work (repeat as
necessary):
(A) Name and address:
_______________.
(B) Contractor's phone
number: _______________.
"(6) Surety or
sureties for original contractor (if applicable, a copy of the payment bond
is attached):
(A) Name and address:
_______________.
(B) Phone number:
_______________.
"(7) Lender(s)
providing financing for the work that is securing a mortgage on or a
security interest in the property (repeat as necessary):
(A) Name and address:
_______________.
(B) Lender's phone
number: _______________.
"(8) Secretary of
state's lien website address: _______________.
"Date: ______________
"_____________ (Owner
name)
"By:_______________
(Signature)
"(Insert
acknowledgment)."
(b) Incorrect information
contained in the notice of commencement furnished by an owner does not
adversely affect the rights of a lien claimant reasonably relying on the
information against the owner or the property of the owner. If a
subcontractor performs labor or furnishes materials or specially fabricated
materials described by the notice of commencement and the notice of
commencement does not identify the original contractor under which the
labor was performed or materials were furnished or specially fabricated at
the time the subcontractor first performs the labor or furnishes or
specially fabricates the materials, the notice of furnishing by the
subcontractor preserves the lien claimant's rights for the period provided
by Section 53.0561(c).
(c) The owner shall send
a copy of the notice of commencement to each subcontractor not later than
the fifth day after the date the owner receives a written request for a
copy from the subcontractor, unless the subcontractor has received a
physical copy of the notice.
(d) Unless a notice of
commencement has been filed and posted as
required by this section, a subcontractor who has not received a
physical copy of the notice may request in writing a copy from the original
contractor or a subcontractor with whom the requesting subcontractor has
privity of contract. If the original contractor or subcontractor has a
copy of the notice, the original contractor or subcontractor shall send a
copy of the notice to the requesting subcontractor not later than the fifth
day after the date of receipt of the written request. If the requesting
subcontractor does not receive a copy of the notice as required by this
section, the person failing to send the copy under this subsection is
liable to the requesting subcontractor for all actual expenses reasonably
incurred by the requesting subcontractor in obtaining the information that
would have been contained in the notice.
(e) A notice of
commencement posted on the lien website may be amended by the owner by
sending the amended notice to the lien website. The effective date of the
amended notice is the date the amended notice is posted on the lien
website. The owner shall send notice of the amended notice to contractors
who have sent a notice of
furnishing to the owner before the effective date of the amended notice of
commencement.
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SECTION 24. Subchapter F,
Chapter 53, Property Code, is amended by adding Section 53.125 to read as
follows:
Sec. 53.125. NOTICE OF
COMMENCEMENT. (a) An owner may
file a notice of commencement with the county clerk of the county in which
the real property being improved under an original contract is located. An owner who elects to file a notice of
commencement shall post the notice on the lien website.
A notice under this
section must be acknowledged and be in a form that substantially complies
with the following:
"NOTICE OF
COMMENCEMENT
"Improvements will be
made to certain real property, and in accordance with Chapter 53, Property
Code, the following information is provided by this notice of commencement:
"(1) Legal
description and, if applicable, street address of property:
_______________.
"(2) Project name and brief description of
work to be performed or materials to be furnished: _______________.
"(3) Work or
materials not included in this notice of commencement: _______________.
"(4) Owner
information or lessee information if the lessee contracted for the work:
(A) Name and address:
_______________.
(B) Interest in property
(check appropriate box):
□ Fee simple title
□ Lease
□ Other (explain):
_______________.
(C) Name and address of
fee simple titleholder to property (if different from owner listed above):
_______________.
"(5) Original
contractor(s) for work or designated portions of the work (repeat as
necessary):
(A) Name and address:
_______________.
(B) Contractor's phone
number: _______________.
"(6) Surety or
sureties for original contractor (if applicable, a copy of the payment bond
is attached):
(A) Name and address:
_______________.
(B) Phone number:
_______________.
"(7) Lender(s)
providing financing for the work that is securing a mortgage on or a
security interest in the property (repeat as necessary):
(A) Name and address:
_______________.
(B) Lender's phone
number: _______________.
"(8) Secretary of
state's lien website address: _______________.
"Date: ______________
"_____________ (Owner
name)
"By:_______________
(Signature)
"(Insert
acknowledgment)."
(b) Incorrect information
contained in the notice of commencement furnished by an owner does not
adversely affect the rights of a lien claimant reasonably relying on the
information against the owner or the property of the owner. If a
subcontractor performs labor or furnishes materials or specially fabricated
materials described by the notice of commencement and the notice of
commencement does not identify the original contractor under which the
labor was performed or materials were furnished or specially fabricated at
the time the subcontractor first performs the labor or furnishes or
specially fabricates the materials, the notice of furnishing by the
subcontractor preserves the lien claimant's rights for the period provided
by Section 53.0561(c).
(c) The owner shall send
a copy of the notice of commencement to each subcontractor not later than
the fifth day after the date the owner receives a written request for a
copy from the subcontractor, unless the subcontractor has received a
physical copy of the notice.
(d) Unless a notice of
commencement has been filed and posted under
this section, a subcontractor who has not received a physical copy of the
notice may request in writing a copy from the original contractor or a
subcontractor with whom the requesting subcontractor has privity of
contract. If the original contractor or subcontractor has a copy of the
notice, the original contractor or subcontractor shall send a copy of the
notice to the requesting subcontractor not later than the fifth day after
the date of receipt of the written request. If the requesting subcontractor
does not receive a copy of the notice as required by this section, the
person failing to send the copy under this subsection is liable to the
requesting subcontractor for all actual expenses reasonably incurred by the
requesting subcontractor in obtaining the information that would have been
contained in the notice.
(e) A notice of
commencement posted on the lien website may be amended by the owner by
sending the amended notice to the lien website. The effective date of the
amended notice is the date the amended notice is posted on the lien
website. The owner shall send notice of the amended notice to contractors
who have provided a notice of
furnishing to the owner before the effective date of the amended notice of
commencement.
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|
SECTION 26. Section
53.151(b), Property Code, is amended.
|
SECTION 25. Same as
introduced version.
|
|
SECTION 27. Section
53.153(a), Property Code, is amended.
|
SECTION 26. Same as
introduced version.
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|
SECTION 28. Section 53.154,
Property Code, is amended.
|
SECTION 27. Same as
introduced version.
|
|
SECTION 29. Section 53.157,
Property Code, is amended.
|
SECTION 28. Same as
introduced version.
|
|
SECTION 30. Section 53.158,
Property Code, is amended.
|
SECTION 29. Same as
introduced version.
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|
SECTION 31. Section 53.159,
Property Code, is amended by amending Subsections (a), (b), (c), (d), and
(f) to read as follows:
(a) If a notice of
commencement has not been filed and posted as
required by Section 53.125, an [An] owner, on written
request, shall furnish the following information within a reasonable time,
but not later than the 10th day after the date the request is received, to
any person furnishing labor or materials for the project:
(1) a description of the
real property being improved legally sufficient to identify it;
(2) whether there is a
surety bond and if so, the name and last known address of the surety and a
copy of the bond;
(3) whether there are any
prior recorded liens or security interests on the real property being
improved and if so, the name and address of the person having the lien or
security interest; and
(4) the date on which the
original contract for the project was executed.
(b) If a notice of
commencement has not been filed and posted as
required by Section 53.125, an [An] original contractor,
on written request by a person who furnished work under the original
contract, shall furnish to the person the following information within a
reasonable time, but not later than the 10th day after the date the request
is received:
(1) the name and last known
address of the person to whom the original contractor furnished labor or
materials for the construction project;
(2) whether the original
contractor has furnished or has been furnished a payment bond for any of
the work on the construction project and if so, the name and last known
address of the surety and a copy of the bond; and
(3) the date on which the
original contract for the project was executed.
(c) A subcontractor, on
written request by an owner of the property being improved, the original
contractor, a surety on a bond covering the original contract, or any
person furnishing work under the subcontract, shall furnish to the person
the following information within a reasonable time, but not later than the
10th day after the date the request is received:
(1) the name and last known
address of each person from whom the subcontractor purchased labor or
materials for the construction project, other than those materials that
were furnished to the project from the subcontractor's inventory;
(2) the name and last known
address of each person to whom the subcontractor furnished labor or
materials for the construction project; [and]
(3) whether the
subcontractor has furnished or has been furnished a payment bond for any of
the work on the construction project and if so, the name and last known
address of the surety and a copy of the bond; and
(4) the date the
subcontractor first performed labor, furnished materials, or specially
fabricated materials for the construction project for which any claim for
payment is being sought.
(d) Not later than the 30th
day after the date a written request is received from the owner, the
contractor under whom a claim of lien or under whom a bond is made, or a
surety on a bond on which a claim is made, a claimant for a lien or under a
bond shall furnish to the requesting person a copy of any applicable
written agreement, purchase order, or contract and any billing, statement,
or payment request of the claimant reflecting the amount claimed and the work
performed by the claimant for which the claim is made. [If requested,
the claimant shall provide the estimated amount due for each calendar month
in which the claimant has performed labor or furnished materials.]
(f) A person, other than a
claimant requested to furnish information under Subsection (d), who fails
to furnish information as required by this section not posted on the
lien website is liable to the requesting person for that person's
reasonable and necessary costs incurred in procuring the requested
information.
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SECTION 30. Sections
53.159(a), (b), (c), (d), and (f), Property Code, are amended to read as
follows:
(a) If a notice of
commencement has not been filed and posted under
Section 53.125, an [An] owner, on written request, shall furnish
the following information within a reasonable time, but not later than the
10th day after the date the request is received, to any person furnishing
labor or materials for the project:
(1) a description of the
real property being improved legally sufficient to identify it;
(2) whether there is a
surety bond and if so, the name and last known address of the surety and a
copy of the bond;
(3) whether there are any
prior recorded liens or security interests on the real property being
improved and if so, the name and address of the person having the lien or
security interest; and
(4) the date on which the
original contract for the project was executed.
(b) If a notice of
commencement has not been filed and posted under
Section 53.125, an [An] original contractor, on written request
by a person who furnished work under the original contract, shall furnish
to the person the following information within a reasonable time, but not
later than the 10th day after the date the request is received:
(1) the name and last known
address of the person to whom the original contractor furnished labor or
materials for the construction project;
(2) whether the original
contractor has furnished or has been furnished a payment bond for any of
the work on the construction project and if so, the name and last known
address of the surety and a copy of the bond; and
(3) the date on which the
original contract for the project was executed.
(c) A subcontractor, on
written request by an owner of the property being improved, the original
contractor, a surety on a bond covering the original contract, or any
person furnishing work under the subcontract, shall furnish to the person
the following information within a reasonable time, but not later than the
10th day after the date the request is received:
(1) the name and last known
address of each person from whom the subcontractor purchased labor or
materials for the construction project, other than those materials that
were furnished to the project from the subcontractor's inventory;
(2) the name and last known
address of each person to whom the subcontractor furnished labor or
materials for the construction project; [and]
(3) whether the
subcontractor has furnished or has been furnished a payment bond for any of
the work on the construction project and if so, the name and last known
address of the surety and a copy of the bond; and
(4) the date the
subcontractor first performed labor, furnished materials, or specially
fabricated materials for the construction project for which any claim for
payment is being sought.
(d) Not later than the 30th
day after the date a written request is received from the owner, the
contractor under whom a claim of lien or under whom a bond is made, or a
surety on a bond on which a claim is made, a claimant for a lien or under a
bond shall furnish to the requesting person a copy of any applicable
written agreement, purchase order, or contract and any billing, statement,
or payment request of the claimant reflecting the amount claimed and the
work performed by the claimant for which the claim is made. [If
requested, the claimant shall provide the estimated amount due for each
calendar month in which the claimant has performed labor or furnished
materials.]
(f) A person, other than a
claimant requested to furnish information under Subsection (d), who fails
to furnish information as required by this section not posted on the
lien website is liable to the requesting person for that person's
reasonable and necessary costs incurred in procuring the requested information.
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SECTION 32. Section 53.160,
Property Code, is amended by amending Subsections (b) and (c) 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 furnishing
[claim] was not furnished to the owner or original contractor as
required by Section 53.0561 [53.056, 53.057, 53.058, 53.252, or
53.253];
(2) a lien claim [an]
affidavit [claiming a lien] failed to comply with Section 53.054 or
was not filed as required by Section 53.052;
(3) notice of the filed lien
claim affidavit was not furnished to the owner or original contractor
as required by Section 53.055 and the owner or original contractor was
materially prejudiced by the violation;
(4) [the deadlines for
perfecting a lien claim for retainage under this chapter have expired and
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 a notice regarding the retainage
have been deposited in the registry of the court and the owner has no
additional liability to the claimant;
[(6)] when the lien claim
affidavit was filed on homestead property:
(A) no contract was executed
or filed as required by Section 53.254; or
(B) the lien claim
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
(5) [(7)] the
claimant executed a valid and enforceable waiver or release of the claim or
lien claimed in the affidavit.
(c) The claimant is not
required to file a response. The claimant and any other party that has
appeared in the proceeding must be notified not later than the 21st day
[by at least 21 days] before the date of the hearing on the motion.
A motion may not be heard before the 21st day after the date the claimant
answers or appears in the proceeding.
|
SECTION 31. Sections
53.160(b) and (c), 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 furnishing or notice of unpaid balance [claim]
was not furnished to the owner or original contractor as required by
Section 53.0561 or 53.0562
[53.056, 53.057, 53.058, 53.252, or 53.253];
(2) a lien claim [an]
affidavit [claiming a lien] failed to comply with Section 53.054 or
was not filed as required by Section 53.052;
(3) notice of the filed lien
claim affidavit was not furnished to the owner or original contractor
as required by Section 53.055 and the owner or original contractor was
materially prejudiced by the violation;
(4) [the deadlines for
perfecting a lien claim for retainage under this chapter have expired and
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 a notice regarding the retainage
have been deposited in the registry of the court and the owner has no
additional liability to the claimant;
[(6)] when the lien claim
affidavit was filed on homestead property:
(A) no contract was executed
or filed as required by Section 53.254; or
(B) the lien claim
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
(5) [(7)] the
claimant executed a valid and enforceable waiver or release of the claim or
lien claimed in the affidavit.
(c) The claimant is not
required to file a response. The claimant and any other party that has
appeared in the proceeding must be notified not later than the 21st day
[by at least 21 days] before the date of the hearing on the motion.
A motion may not be heard before the 21st day after the date the claimant
answers or appears in the proceeding.
|
|
SECTION 33. Section 53.161(f),
Property Code, is amended.
|
SECTION 32. Same as
introduced version.
|
|
SECTION 34. Section 53.172,
Property Code, is amended.
|
SECTION 33. Same as
introduced version.
|
|
SECTION 35. Section 53.201(b),
Property Code, is amended.
|
SECTION 34. Same as
introduced version.
|
|
SECTION 36. Section 53.202,
Property Code, is amended.
|
SECTION 35. Same as
introduced version.
|
|
SECTION 37. Section 53.206,
Property Code, is amended by amending Subsections (a) and (b) to read as
follows:
(a) To perfect a claim
against a bond in a manner other than that prescribed by Subchapter C or
K for fixing a lien, a person must:
(1) give to the original
contractor a notice of furnishing,
unless the person has
contracted directly with the original contractor [all applicable
notices under the appropriate subchapter]; and
(2) give to the surety on
the bond a written notice of the amount and nature of the claim and a
copy of the notice to the original contractor within the time period
required for filing a lien claim affidavit under Section 53.052 [,
instead of the owner, all notices under the appropriate subchapter required
to be given to the owner].
(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 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.
|
SECTION 36. Sections
53.206(a) and (b), Property Code, are amended to read as follows:
(a) To perfect a claim
against a bond in a manner other than that prescribed by Subchapter C or K
for fixing a lien, a person must:
(1) give to the original
contractor a notice of furnishing or
a notice of unpaid balance, unless the person has contracted
directly with the original contractor [all applicable notices under
the appropriate subchapter]; and
(2) give to the surety on
the bond a written notice of the amount and nature of the claim and a
copy of the notice to the original contractor within the time period
required for filing a lien claim affidavit under Section 53.052 [,
instead of the owner, all notices under the appropriate subchapter required
to be given to the owner].
(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 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.
|
|
SECTION 38. Section
53.255(b), Property Code, is amended to read as follows:
(b) The disclosure statement
must read substantially similar to the following:
"KNOW YOUR RIGHTS AND
RESPONSIBILITIES UNDER THE LAW. You are about to enter into a transaction
to build a new home or remodel existing residential property. Texas law
requires your contractor to provide you with this brief overview of some of
your rights, responsibilities, and risks in this transaction.
"CONVEYANCE TO
CONTRACTOR NOT REQUIRED. Your contractor may not require you to convey your
real property to your contractor as a condition to the agreement for the
construction of improvements on your property.
"KNOW YOUR CONTRACTOR.
Before you enter into your agreement for the construction of improvements
to your real property, make sure that you have investigated your
contractor. Obtain and verify references from other people who have used
the contractor for the type and size of construction project on your
property.
"GET IT IN WRITING. Make
sure that you have a written agreement with your contractor that includes:
(1) a description of the work the contractor is to perform; (2) the
required or estimated time for completion of the work; (3) the cost of the
work or how the cost will be determined; and (4) the procedure and method
of payment, including [provisions for statutory retainage and]
conditions for final payment. If your contractor made a promise, warranty,
or representation to you concerning the work the contractor is to perform,
make sure that promise, warranty, or representation is specified in the
written agreement. An oral promise that is not included in the written
agreement may not be enforceable under Texas law.
"READ BEFORE YOU SIGN.
Do not sign any document before you have read and understood it. NEVER
SIGN A DOCUMENT THAT INCLUDES AN UNTRUE STATEMENT. Take your time in
reviewing documents. If you borrow money from a lender to pay for the
improvements, you are entitled to have the loan closing documents furnished
to you for review at least one business day before the closing. Do not
waive this requirement unless a bona fide emergency or another good cause
exists, and make sure you understand the documents before you sign them.
If you fail to comply with the terms of the documents, you could lose your
property. You are entitled to have your own attorney review any
documents. If you have any question about the meaning of a document,
consult an attorney.
"GET A LIST OF
SUBCONTRACTORS AND SUPPLIERS. Before construction commences, your
contractor is required to provide you with a list of the subcontractors and
suppliers the contractor intends to use on your project. Your contractor
is required to supply updated information on any subcontractors and
suppliers added after the list is provided. Your contractor is not
required to supply this information if you sign a written waiver of your
rights to receive this information.
"MONITOR THE WORK.
Lenders and governmental authorities may inspect the work in progress from
time to time for their own purposes. These inspections are not intended as
quality control inspections. Quality control is a matter for you and your
contractor. To ensure that your home is being constructed in accordance
with your wishes and specifications, you should inspect the work yourself
or have your own independent inspector review the work in progress.
"MONITOR PAYMENTS. If
you use a lender, your lender is required to provide you with a periodic
statement showing the money disbursed by the lender from the proceeds of
your loan. Each time your contractor requests payment from you or your
lender for work performed, your contractor is also required to furnish you
with a disbursement statement that lists the name and address of each
subcontractor or supplier that the contractor intends to pay from the
requested funds. Review these statements and make sure that the money is
being properly disbursed.
"CLAIMS BY
SUBCONTRACTORS AND SUPPLIERS. Under Texas law, if a subcontractor or
supplier who furnishes labor or materials for the construction of
improvements on your property is not paid, you may be [become]
liable and your property may be subject to a lien for the unpaid amount,
even if you have not contracted directly with the subcontractor or
supplier. To minimize your [avoid] liability, you should
take the following actions:
(1) If you receive a written
notice from a subcontractor or supplier that
describes the labor or materials to be furnished for your improvements
(referred to as a "notice of furnishing"), you should keep that
notice in a safe place for at least four months after the completion of
your improvements [, you
should withhold payment from your contractor for the amount of the claim
stated in the notice until the dispute between your contractor and the
subcontractor or supplier is resolved].
If your lender is disbursing
money directly to your contractor, you should immediately provide a copy of
the notice of furnishing
to your lender [and instruct the
lender to withhold payment in the amount of the claim stated in the
notice. If you continue to pay the contractor after receiving the written
notice without withholding the amount of the claim, you may be liable and
your property may be subject to a lien for the amount you failed to
withhold]. Confirm that your contractor has received a copy of each
notice of furnishing.
(2)
As a condition to each payment to be made to the contractor, including
the final payment, you may require the contractor to furnish a lien waiver
from each subcontractor or supplier who sent a notice of furnishing,
conditioned only on receipt of payment to the subcontractor in the amount
specified by the lien waiver. The lien waiver should be in the form
required by statute (Chapter 53, Property Code).
[During construction and
for 30 days after final completion, termination, or abandonment of the contract
by the contractor, you should withhold or cause your lender to withhold 10
percent of the amount of payments made for the work performed by your
contractor. This is sometimes referred to as "statutory retainage.'
If you choose not to withhold the 10 percent for at least 30 days after
final completion, termination, or abandonment of the contract by the
contractor and if a valid claim is timely made by a claimant and your
contractor fails to pay the claim, you may be personally liable and your
property may be subject to a lien up to the amount that you failed to
withhold.]
"If a claim is not paid
within a certain time period, the claimant is required to file a mechanic's
lien affidavit in the real property records in the county where the
property is located. A mechanic's lien affidavit is not a lien on your
property, but the filing of the affidavit could result in a court imposing
a lien on your property if the claimant is successful in litigation to
enforce the lien claim.
"SOME CLAIMS MAY NOT BE
VALID. When [you receive a written
notice of a claim or when] a mechanic's lien affidavit is filed
on your property, you should know your legal rights and responsibilities
regarding the claim.
Not all claims are valid. In
order to perfect a valid lien, [A notice of a claim by] a
subcontractor or supplier is required to send
you a notice of furnishing and a copy of the subcontractor's or supplier's
recorded [be sent, and the]
mechanic's lien affidavit [is
required to be filed,] within strict time periods.
The notice of furnishing and the affidavit
must contain certain information. All claimants may not fully comply with
the legal requirements to collect on a claim. If your property is a
homestead and you did not enter into a written contract with your contractor
that complies with the statutory requirements for a lien on a homestead,
your contractor, the subcontractor, or the supplier may not claim a valid
lien on your property. [If you have paid the contractor in full
before receiving a notice of a claim and have fully complied with the law
regarding statutory retainage, you may not be liable for that claim.]
Accordingly, you should consult your attorney when you receive a written
notice of a claim to determine the true extent of your liability or
potential liability for that claim.
"OBTAIN A LIEN RELEASE
AND A BILLS-PAID AFFIDAVIT. [When you
receive a notice of claim, do not release withheld funds without obtaining
a signed and notarized release of lien and claim from the claimant.]
You can [also] reduce
the risk of having a claim filed by a subcontractor or supplier by
requiring as a condition of each payment made by you or your lender that
your contractor furnish you with an affidavit stating that all bills have
been paid. Under Texas law, on final completion of the work and before
final payment, the contractor is required to furnish you with an affidavit
stating that all bills have been paid. If the contractor discloses any
unpaid bill in the affidavit, you should withhold payment in the amount of
the unpaid bill until you receive a waiver of lien or release from that
subcontractor or supplier.
"OBTAIN TITLE INSURANCE
PROTECTION. You may be able to obtain a title insurance policy to insure
that the title to your property and the existing improvements on your
property are free from liens claimed by subcontractors and suppliers. If
your policy is issued before the improvements are completed and covers the
value of the improvements to be completed, you should obtain, on the
completion of the improvements and as a condition of your final payment, a
'completion of improvements' policy endorsement. This endorsement will
protect your property from liens claimed by subcontractors and suppliers
that may arise from the date the original title policy is issued to the date
of the endorsement."
|
SECTION 37. Section
53.255(b), Property Code, is amended to read as follows:
(b) The disclosure statement
must read substantially similar to the following:
"KNOW YOUR RIGHTS AND
RESPONSIBILITIES UNDER THE LAW. You are about to enter into a transaction
to build a new home or remodel existing residential property. Texas law
requires your contractor to provide you with this brief overview of some of
your rights, responsibilities, and risks in this transaction.
"CONVEYANCE TO CONTRACTOR
NOT REQUIRED. Your contractor may not require you to convey your real
property to your contractor as a condition to the agreement for the
construction of improvements on your property.
"KNOW YOUR CONTRACTOR.
Before you enter into your agreement for the construction of improvements
to your real property, make sure that you have investigated your
contractor. Obtain and verify references from other people who have used
the contractor for the type and size of construction project on your
property.
"GET IT IN WRITING. Make
sure that you have a written agreement with your contractor that includes:
(1) a description of the work the contractor is to perform; (2) the
required or estimated time for completion of the work; (3) the cost of the
work or how the cost will be determined; and (4) the procedure and method
of payment, including [provisions for statutory retainage and]
conditions for final payment. If your contractor made a promise, warranty,
or representation to you concerning the work the contractor is to perform,
make sure that promise, warranty, or representation is specified in the
written agreement. An oral promise that is not included in the written
agreement may not be enforceable under Texas law.
"READ BEFORE YOU SIGN.
Do not sign any document before you have read and understood it. NEVER
SIGN A DOCUMENT THAT INCLUDES AN UNTRUE STATEMENT. Take your time in
reviewing documents. If you borrow money from a lender to pay for the
improvements, you are entitled to have the loan closing documents furnished
to you for review at least one business day before the closing. Do not
waive this requirement unless a bona fide emergency or another good cause
exists, and make sure you understand the documents before you sign them.
If you fail to comply with the terms of the documents, you could lose your
property. You are entitled to have your own attorney review any
documents. If you have any question about the meaning of a document,
consult an attorney.
"GET A LIST OF
SUBCONTRACTORS AND SUPPLIERS. Before construction commences, your
contractor is required to provide you with a list of the subcontractors and
suppliers the contractor intends to use on your project. Your contractor
is required to supply updated information on any subcontractors and suppliers
added after the list is provided. Your contractor is not required to
supply this information if you sign a written waiver of your rights to
receive this information.
"MONITOR THE WORK.
Lenders and governmental authorities may inspect the work in progress from
time to time for their own purposes. These inspections are not intended as
quality control inspections. Quality control is a matter for you and your
contractor. To ensure that your home is being constructed in accordance
with your wishes and specifications, you should inspect the work yourself
or have your own independent inspector review the work in progress.
"MONITOR PAYMENTS. If
you use a lender, your lender is required to provide you with a periodic
statement showing the money disbursed by the lender from the proceeds of
your loan. Each time your contractor requests payment from you or your
lender for work performed, your contractor is also required to furnish you
with a disbursement statement that lists the name and address of each
subcontractor or supplier that the contractor intends to pay from the
requested funds. Review these statements and make sure that the money is
being properly disbursed.
"CLAIMS BY
SUBCONTRACTORS AND SUPPLIERS. Under Texas law, if a subcontractor or
supplier who furnishes labor or materials for the construction of
improvements on your property is not paid, you may be [become]
liable and your property may be subject to a lien for the unpaid amount,
even if you have not contracted directly with the subcontractor or
supplier. To minimize your [avoid] liability, you should
take the following actions:
(1) If you receive a written
notice from a subcontractor or supplier,
you
should withhold payment from your contractor for the amount of the claim
stated in the notice until the dispute between your contractor and the
subcontractor or supplier is resolved.
(2) If your lender is
disbursing money directly to your contractor, you should immediately
provide a copy of the notice to your lender and
instruct the lender to withhold payment in the amount of the claim stated
in the notice. If you continue to pay the contractor after receiving the
written notice without withholding the amount of the claim, you may be
liable and your property may be subject to a lien for the amount you failed
to withhold.
[(2) During construction
and for 30 days after final completion, termination, or abandonment of the
contract by the contractor, you should withhold or cause your lender to
withhold 10 percent of the amount of payments made for the work performed
by your contractor. This is sometimes referred to as "statutory
retainage.' If you choose not to withhold the 10 percent for at least 30
days after final completion, termination, or abandonment of the contract by
the contractor and if a valid claim is timely made by a claimant and your
contractor fails to pay the claim, you may be personally liable and your
property may be subject to a lien up to the amount that you failed to
withhold.]
"If a claim is not paid
within a certain time period, the claimant is required to file a mechanic's
lien affidavit in the real property records in the county where the
property is located. A mechanic's lien affidavit is not a lien on your
property, but the filing of the affidavit could result in a court imposing
a lien on your property if the claimant is successful in litigation to enforce
the lien claim.
"SOME CLAIMS MAY NOT BE
VALID. When you receive a written notice
of unpaid balance [a claim] or when a mechanic's lien
affidavit is filed on your property, you should know your legal rights and
responsibilities regarding the claim.
Not all claims are valid. In
order to perfect a valid lien, a notice
of unpaid balance [A
notice of a claim] by a
subcontractor or supplier is required to be
sent, and the mechanic's lien affidavit is required to be filed, within strict time periods.
The notice and the affidavit
must contain certain information. All claimants may not fully comply with
the legal requirements to collect on a claim. If your property is a
homestead and you did not enter into a written contract with your
contractor that complies with the statutory requirements for a lien on a
homestead, your contractor, the subcontractor, or the supplier may not
claim a valid lien on your property. [If you have paid the
contractor in full before receiving a notice of a claim and have fully
complied with the law regarding statutory retainage, you may not be liable
for that claim.] Accordingly, you should consult your attorney when you
receive a written notice of a claim to determine the true extent of your
liability or potential liability for that claim.
"OBTAIN A LIEN RELEASE
AND A BILLS-PAID AFFIDAVIT. When you
receive a notice of unpaid balance [claim], do not release
withheld funds without obtaining a signed and notarized release of lien and
claim from the claimant.
You can [also] reduce
the risk of having a claim filed by a subcontractor or supplier by
requiring as a condition of each payment made by you or your lender that
your contractor furnish you with an affidavit stating that all bills have
been paid. Under Texas law, on final completion of the work and before
final payment, the contractor is required to furnish you with an affidavit
stating that all bills have been paid. If the contractor discloses any
unpaid bill in the affidavit, you should withhold payment in the amount of
the unpaid bill until you receive a waiver of lien or release from that
subcontractor or supplier.
"OBTAIN TITLE INSURANCE
PROTECTION. You may be able to obtain a title insurance policy to insure
that the title to your property and the existing improvements on your
property are free from liens claimed by subcontractors and suppliers. If
your policy is issued before the improvements are completed and covers the
value of the improvements to be completed, you should obtain, on the
completion of the improvements and as a condition of your final payment, a
'completion of improvements' policy endorsement. This endorsement will
protect your property from liens claimed by subcontractors and suppliers
that may arise from the date the original title policy is issued to the date
of the endorsement."
|
|
SECTION 39. Section 53.259,
Property Code, is amended.
|
SECTION 38. Same as
introduced version except for recitation.
|
|
SECTION 40. Section 53.281,
Property Code, is amended.
|
SECTION 39. Same as
introduced version.
|
|
SECTION 41. Section 53.283,
Property Code, is amended.
|
SECTION 40. Same as
introduced version.
|
|
SECTION 42. Section 53.284,
Property Code, is amended by amending Subsections (b), (c), (d), and (e)
and adding Subsection (f) to read as follows:
(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) for [to]
the following project [extent]: ______________________ (project
[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 or [,] 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)
"(Insert
acknowledgment)"
(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. It is prohibited 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) for [to] the following project
[extent]: ______________________ (project [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 or [,] 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)
"(Insert
acknowledgment)"
(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) for
[to] the following project [extent]:
______________________ (project [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)
"(Insert
acknowledgment)"
(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. It is prohibited 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) for [to] the
following project [extent]: ______________________ (project
[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)
"(Insert
acknowledgment)"
(f) If the owner has
filed and posted a notice of commencement as
required by Section 53.125, the owner may require, as a condition
for final payment, a claimant who has filed
a notice of furnishing to file with
the lien website a conditional waiver and release on final payment
described by Subsection (d).
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SECTION 41. Section 53.284,
Property Code, is amended by amending Subsections (b), (c), (d), and (e)
and adding Subsection (f) to read as follows:
(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) for [to]
the following project [extent]: ______________________ (project
[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 or [,] 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)
"(Insert
acknowledgment)"
(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. It is prohibited 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) for [to] the following project
[extent]: ______________________ (project [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 or [,] 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)
"(Insert
acknowledgment)"
(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) for
[to] the following project [extent]:
______________________ (project [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)
"(Insert
acknowledgment)"
(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. It is prohibited 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) for [to] the
following project [extent]: ______________________ (project
[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)
"(Insert
acknowledgment)"
(f) If the owner has
filed and posted a notice of commencement under
Section 53.125, the owner may require, as a condition for final payment, a
claimant who has provided a
notice of furnishing to post on
the lien website a conditional waiver and release on final payment
described by Subsection (d).
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SECTION 43. The following
provisions of the Property Code are repealed:
(1) Section
53.001(11);
(2) Section
53.022(b);
(3) Section
53.025;
(4) Section
53.053;
(5) Section
53.056;
(6) Section
53.057;
(7) Section
53.058;
(8) Section
53.083;
(9) Section
53.084;
(10)
Subchapter E, Chapter 53;
(11) Section 53.206(c);
(12) Section 53.252;
(13) Section 53.253; and
(14) Section 53.254(g).
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SECTION 42. Same as
introduced version.
|
|
SECTION 44. The changes in
law made by this Act apply only to an original contract entered into on or
after the effective date of this Act. An original contract entered into
before the effective date of this Act is governed by the law as it existed
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
|
SECTION 43. Same as
introduced version.
|
|
SECTION 45. This Act takes
effect May 1, 2018.
|
SECTION 44. Same as
introduced version.
|
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