|
|
|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
relating to mechanic's, contractor's, or materialman's liens; |
|
authorizing a fee; changing the eligibility for community |
|
supervision. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. Section 3503.051(3), Insurance Code, is amended |
|
to read as follows: |
|
(3) "Notice of claim" means a written notification by |
|
a claimant who makes a claim for payment from the surety |
|
company. The term does not include a routine statutory notice |
|
required by [Section 53.056(b), 53.057, 53.058, 53.252(b), or
|
|
53.253, Property Code, or] Section 2253.047, Government Code. |
|
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. |
|
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. |
|
SECTION 4. Subchapter A, Chapter 53, Property Code, is |
|
amended by adding Section 53.004 to read as follows: |
|
Sec. 53.004. COMPUTATION OF TIME. In computing the period |
|
of days in which to provide a notice or to take an action required |
|
under this chapter, if the last day of the period is a Saturday, |
|
Sunday, or legal holiday, the period is extended to include the next |
|
day that is not a Saturday, Sunday, or legal holiday. |
|
SECTION 5. Chapter 53, Property Code, is amended by adding |
|
Subchapter A-1 to read as follows: |
|
SUBCHAPTER A-1. LIEN WEBSITE |
|
Sec. 53.011. LIEN WEBSITE. (a) The secretary of state |
|
shall establish and maintain a lien website through the state |
|
electronic Internet portal, as defined by Section 2054.003, |
|
Government Code. |
|
(b) The secretary of state may adopt rules and forms |
|
necessary to implement this subchapter. |
|
Sec. 53.012. POSTING ON LIEN WEBSITE. The lien website must |
|
provide an online form for each notice or written communication |
|
required by this chapter that complies with the content |
|
requirements of this chapter for the notice or communication. The |
|
lien website must allow a person to electronically obtain a form and |
|
post the notice or written communication on the lien website. |
|
Sec. 53.013. SEARCHING LIEN WEBSITE. The lien website must |
|
allow a person to search the notices and written communications |
|
posted on the website with a full or partial: |
|
(1) owner name; |
|
(2) project name; |
|
(3) project address; |
|
(4) project real property legal description; |
|
(5) original contractor name; or |
|
(6) name of person posting a notice or written |
|
communication. |
|
Sec. 53.014. FEES. (a) Notwithstanding Section 2054.2591, |
|
Government Code, and except as provided by Subsection (b), the |
|
secretary of state may not charge a fee for a person to: |
|
(1) electronically obtain a form or post a notice or |
|
written communication on the lien website; or |
|
(2) use the search functions of the lien website. |
|
(b) The secretary of state may charge a fee for a person to |
|
post a notice of commencement on the lien website. |
|
SECTION 6. Section 53.021(a), Property Code, is amended to |
|
read as follows: |
|
(a) A person has a lien if: |
|
(1) the person labors, specially fabricates material, |
|
or furnishes labor or materials for construction or repair in this |
|
state of an[:
|
|
[(A) a house, building, or] improvement; |
|
[(B)
a levee or embankment to be erected for the
|
|
reclamation of overflow land along a river or creek; or
|
|
[(C) a railroad;] and |
|
(2) the person labors, specially fabricates the |
|
material, or furnishes the labor or materials under or arising out |
|
[by virtue] of an express [a] contract or contract implied by law |
|
between the person and [with] the owner or the owner's agent, |
|
trustee, receiver, contractor, or subcontractor. |
|
SECTION 7. Section 53.022, Property Code, is amended by |
|
amending Subsection (a) and adding Subsections (b-1) and (e) to |
|
read as follows: |
|
(a) The lien extends to the interest of the owner or the |
|
owner's successor in interest to the real property in the house, |
|
building, fixtures, or improvements, the land reclaimed from |
|
overflow, or the railroad and all of its properties, and to each lot |
|
of land necessarily connected or reclaimed. |
|
(b-1) If an improvement is constructed on real property that |
|
is adjacent to the real property of the owner who entered into the |
|
original contract for the improvements and the adjacent property is |
|
not owned by the owner, the lien extends only to the real property |
|
of the owner and not to the adjacent property. |
|
(e) A lien arising from work performed on common elements of |
|
a condominium governed by Chapter 81 or 82 extends to each unit |
|
owning an interest in the common elements being improved, and is |
|
apportioned based on the relative ownership interests of each unit |
|
in the common elements being improved, if: |
|
(1) the inception of the lien is after the date the |
|
declaration establishing the condominium was recorded; and |
|
(2) the work was performed under a contract with the |
|
council of owners, the unit owners' association of the condominium, |
|
or all of the owners of the units owning an interest in the common |
|
elements being improved. |
|
SECTION 8. Section 53.024, Property Code, is amended to |
|
read as follows: |
|
Sec. 53.024. LIMITATION ON SUBCONTRACTOR'S LIEN. The |
|
amount of a lien claimed by a subcontractor may not exceed: |
|
(1) an amount equal to the proportion of the total |
|
subcontract price, including all additional amounts to which the |
|
subcontractor is entitled as an adjustment to the subcontract, that |
|
the sum of the labor performed, materials furnished, materials |
|
specially fabricated, reasonable overhead costs incurred, and |
|
proportionate profit margin bears to the total subcontract price; |
|
minus |
|
(2) the sum of previous payments received by the |
|
claimant on the subcontract. |
|
SECTION 9. Section 53.026(a), Property Code, is amended to |
|
read as follows: |
|
(a) Except as provided by Section 53.0561, a [A] person who |
|
labors, specially fabricates materials, or furnishes labor or |
|
materials under a direct contractual relationship with another |
|
person is considered to be in direct contractual relationship with |
|
the owner and has a lien as an original contractor, if: |
|
(1) the owner [contracted with the other person for
|
|
the construction or repair of a house, building, or improvements
|
|
and the owner] can effectively control that other person or that |
|
other person can effectively control the owner through ownership of |
|
voting stock, interlocking directorships, or otherwise; or |
|
(2) the owner contracted with the other person for the |
|
construction or repair of a house, building, or improvements [and
|
|
that other person can effectively control the owner through
|
|
ownership of voting stock, interlocking directorships, or
|
|
otherwise; or
|
|
[(3)
the owner contracted with the other person for
|
|
the construction or repair of a house, building, or improvements] |
|
and the contract was made without good faith intention of the |
|
parties that the other person was to perform the contract. |
|
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. |
|
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." |
|
SECTION 12. The heading to Section 53.054, Property Code, |
|
is amended to read as follows: |
|
Sec. 53.054. CONTENTS OF LIEN CLAIM AFFIDAVIT. |
|
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. |
|
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]. |
|
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. |
|
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." |
|
SECTION 16. Section 53.081, Property Code, is amended to |
|
read as follows: |
|
Sec. 53.081. AUTHORITY TO WITHHOLD FUNDS FOR BENEFIT OF |
|
CLAIMANTS. [(a)] If a lien claim affidavit is filed by a |
|
subcontractor or if an owner receives notice under Section 53.055 |
|
[53.056, 53.057, 53.058, 53.252, or 53.253], the owner may withhold |
|
from payments due or to become due to the original contractor an |
|
amount necessary to pay the claim stated in the lien claim |
|
affidavit, except to the extent that the owner is already |
|
withholding payment for the amount of the claim from the original |
|
contractor as retainage or otherwise [for which he receives
|
|
notice]. |
|
[(b)
If notice is sent in a form that substantially complies
|
|
with Section 53.056 or 53.252, the owner may withhold the funds
|
|
immediately on receipt of the notice.
|
|
[(c)
If notice is sent under Section 53.057, the owner may
|
|
withhold funds immediately on receipt of a copy of the claimant's
|
|
affidavit prepared in accordance with Sections 53.052 through
|
|
53.055.
|
|
[(d)
If notice is sent under Section 53.058, the owner may
|
|
withhold funds immediately on receipt of the notices sent under
|
|
Subsection (e) of that section. If notice is sent as provided by
|
|
Section 53.253(b), the owner may withhold funds immediately on
|
|
receipt of the notice sent as required by Section 53.252.] |
|
SECTION 17. Section 53.082, Property Code, is amended to |
|
read as follows: |
|
Sec. 53.082. TIME FOR WHICH FUNDS ARE WITHHELD. The owner |
|
may retain funds under Section 53.081 until [Unless] payment is |
|
made under Section 53.0831 [53.083] or the claim is otherwise |
|
settled, discharged[, indemnified against] under Section 53.157 |
|
[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 affidavit of mechanic's
|
|
lien has passed; or
|
|
[(2)
if a lien affidavit has been filed, until the lien
|
|
claim has been satisfied or released]. |
|
SECTION 18. Subchapter D, Chapter 53, Property Code, is |
|
amended by adding Section 53.0831 to read as follows: |
|
Sec. 53.0831. DEMAND FOR NOTICE OF DISPUTE; PAYMENT OF |
|
CLAIM. (a) If a lien claim affidavit is filed by a claimant, the |
|
owner may demand in writing that the original contractor notify the |
|
owner of whether the original contractor intends to dispute the |
|
claim. The owner shall send a copy of the demand to the claimant and |
|
shall furnish the original contractor with a copy of the lien claim |
|
affidavit. |
|
(b) If the original contractor does not give the owner and |
|
the claimant written notice of the original contractor's intent to |
|
dispute the claim before the 30th day after the date of receipt of |
|
the demand, the original contractor is considered to agree to the |
|
demand and the owner may pay the claim when the claim becomes due. |
|
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). |
|
SECTION 20. The heading to Section 53.085, Property Code, |
|
is amended to read as follows: |
|
Sec. 53.085. BILLS-PAID AFFIDAVIT REQUIRED. |
|
SECTION 21. Sections 53.085(a), (b), (c), and (d), Property |
|
Code, are amended to read as follows: |
|
(a) Any person who performs work [furnishes labor or
|
|
materials for the construction of improvements on real property] |
|
shall, if requested and as a condition of payment for such work |
|
[labor or materials], provide to the requesting party, or the |
|
party's agent, a bills-paid [an] affidavit acknowledging the amount |
|
claimed for payment and stating that the person has paid each of the |
|
person's subcontractors, laborers, or materialmen in full for all |
|
labor and materials provided to the person for the construction. In |
|
the event, however, that the person has not paid each of the |
|
person's subcontractors, laborers, or materialmen in full, the |
|
person shall state in the affidavit the amount owed and the name |
|
and, if known, the address and telephone number of each |
|
subcontractor, laborer, or materialman to whom the payment is owed. |
|
(b) The seller of any real property shall, upon request by |
|
the purchaser or the purchaser's agent prior to closing of the |
|
purchase of the real property, provide to the purchaser or the |
|
purchaser's agent, a written affidavit stating that the seller has |
|
paid each of the seller's contractors, laborers, or materialmen in |
|
full for all labor done and materials provided to the seller through |
|
the date specified in the affidavit for any construction or repair |
|
of improvements on the real property and that the seller is not |
|
indebted to any person, firm, or corporation by reason of any such |
|
construction or repair through the date specified in the affidavit. |
|
In the event that the seller has not paid each of the seller's |
|
contractors, laborers, or materialmen in full for labor done and |
|
material provided through the date specified in the affidavit, the |
|
seller shall state in the affidavit the amount owed and the name |
|
and, if known, the address and telephone number of each contractor, |
|
laborer, or materialman to whom the payment is owed. |
|
(c) The affidavit may include: |
|
(1) a waiver or release of lien rights or payment bond |
|
claims by the affiant that is conditioned on the receipt of actual |
|
payment or collection of funds when payment is made by check or |
|
draft, as provided by Subchapter L; |
|
(2) a warranty or representation that certain bills or |
|
classes of bills will be paid by the affiant from funds paid in |
|
reliance on the affidavit and an identification of the specific |
|
bills that the affiant will not pay from the fund; and |
|
(3) an indemnification by the affiant for any loss or |
|
expense resulting from false or incorrect information in the |
|
affidavit. |
|
(d) A person, including a seller, commits an offense if the |
|
person intentionally, knowingly, or recklessly makes a false or |
|
misleading statement in an affidavit under this section. An |
|
offense under this section is a misdemeanor. A person adjudged |
|
guilty of an offense under this section shall be punished by a fine |
|
not to exceed $4,000 or confinement in jail for a term not to exceed |
|
one year or both a fine and confinement. [A person may not receive
|
|
community supervision for the offense.] |
|
SECTION 22. Section 53.122(a), Property Code, is amended to |
|
read as follows: |
|
(a) Perfected [Except as provided by Subchapter E and
|
|
Section 53.124(e), perfected] mechanic's liens that have the same |
|
inception date are on equal footing without reference to the date of |
|
filing the lien claim affidavit [claiming the lien]. |
|
SECTION 23. Section 53.124, Property Code, is amended by |
|
amending Subsections (a), (c), (d), and (e) and adding Subsection |
|
(f) to read as follows: |
|
(a) Except as provided by Subsection (c) or (e), for |
|
purposes of Section 53.123, the time of inception of a mechanic's |
|
lien is the commencement of construction or repair of improvements |
|
or delivery of materials to the land on which the improvements are |
|
to be located and on which the materials are to be used. |
|
(c) The later of the date the notice of commencement is |
|
filed or is posted on the lien website is the time of inception of a |
|
mechanic's lien for the work or material described by the notice |
|
that is performed or furnished on or after the later of the date the |
|
notice is filed or posted. For work or material performed or |
|
furnished before the date a notice of commencement is filed or |
|
posted and for work excluded by the notice of commencement, the time |
|
of inception of a mechanic's lien is provided by Subsection (a). |
|
For work under an original contract entered into after a notice of |
|
completion is filed and posted under Section 53.059, the time of |
|
inception of a mechanic's lien is the date provided by Subsection |
|
(a) or the date a new notice of commencement is posted. [An owner
|
|
and original contractor may jointly file an affidavit of
|
|
commencement with the county clerk of the county in which the land
|
|
is located not later than the 30th day after the date of actual
|
|
commencement of construction of the improvements or delivery of
|
|
materials to the land. The affidavit must contain:
|
|
[(1) the name and address of the owner;
|
|
[(2)
the name and address of each original contractor,
|
|
known at the time to the owner, that is furnishing labor, service,
|
|
or materials for the construction of the improvements;
|
|
[(3)
a description, legally sufficient for
|
|
identification, of the property being improved;
|
|
[(4) the date the work actually commenced; and
|
|
[(5) a general description of the improvement.] |
|
(d) If a lien, encumbrance, or mortgage securing an interest |
|
in the land is filed with the county clerk on or before the date the |
|
notice is posted, the lien, encumbrance, or mortgage has priority |
|
over a mechanic's lien with a time of inception that is the date of |
|
the notice, regardless of the order in which the instruments are |
|
filed with the county clerk. [An affidavit filed in compliance with
|
|
this section is prima facie evidence of the date of the commencement
|
|
of the improvement described in the affidavit. The time of
|
|
inception of a mechanic's lien arising from work described in an
|
|
affidavit of commencement is the date of commencement of the work
|
|
stated in the affidavit.] |
|
(e) The time of inception of a lien that is created under |
|
Section 53.021(c)[, (d), or (e)] is the date of recording of a lien |
|
claim [an] affidavit [of lien] under Section 53.052. The priority |
|
of a lien claimed by a person entitled to a lien under Section |
|
53.021(c)[, (d), or (e)] with respect to other mechanic's liens is |
|
determined by the date of recording. A lien created under Section |
|
53.021(c)[, (d), or (e)] is not valid or enforceable against a |
|
grantee or purchaser who acquires an interest in the real property |
|
before the time of inception of the lien. |
|
(f) Unless the landscaping work for which a person may have |
|
a lien under Section 53.021(d) or the demolition services for which |
|
a person may have a lien under Section 53.021(e) are included in a |
|
notice of commencement, the time of inception of a lien under |
|
Section 53.021(d) or (e) is the date of recording of a lien claim |
|
affidavit under Section 53.052, and priority is determined by the |
|
date of recording. Except as provided by this subsection, a lien |
|
created under Section 53.021(d) or (e) is not valid against a |
|
grantee or purchaser who acquires an interest in the real property |
|
before the time of inception of the lien. |
|
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. |
|
SECTION 25. Section 53.151(b), Property Code, is amended to |
|
read as follows: |
|
(b) A surety issuing a payment bond or performance bond in |
|
connection with the work [improvements] has a priority claim over |
|
other creditors of its principal to contract funds to the extent of |
|
any loss it suffers or incurs. That priority does not excuse the |
|
surety from paying any obligations that it may have under its |
|
payment bonds. |
|
SECTION 26. Section 53.153(a), Property Code, is amended to |
|
read as follows: |
|
(a) If an affidavit claiming a mechanic's lien is filed by a |
|
person other than the original contractor, the original contractor |
|
shall defend at the original contractor's [his] own expense a suit |
|
brought on the claim unless the owner is in breach of the owner's |
|
contractual obligations to the original contractor under the |
|
original contract. |
|
SECTION 27. Section 53.154, Property Code, is amended to |
|
read as follows: |
|
Sec. 53.154. FORECLOSURE. (a) A mechanic's lien may be |
|
foreclosed only on judgment of a court of competent jurisdiction |
|
foreclosing the lien and ordering the sale of the property subject |
|
to the lien. |
|
(b) A suit to foreclose the lien must be brought in a court |
|
of competent jurisdiction in the county in which the real property |
|
that is subject to the lien is located. |
|
SECTION 28. Section 53.157, Property Code, is amended to |
|
read as follows: |
|
Sec. 53.157. DISCHARGE OF LIEN. A mechanic's lien or |
|
affidavit claiming a mechanic's lien filed under Section 53.052 may |
|
be discharged of record by: |
|
(1) recording a lien release signed by the claimant |
|
under Section 53.152; |
|
(2) failing to institute suit to foreclose the lien |
|
[in the county in which the property is located] within the period |
|
prescribed by Section 53.158, 53.175, or 53.208; |
|
(3) recording the original or certified copy of a |
|
final judgment or decree of a court of competent jurisdiction |
|
providing for the discharge; |
|
(4) filing the bond and notice in compliance with |
|
Subchapter H; |
|
(5) filing the bond in compliance with Subchapter I; |
|
or |
|
(6) recording a certified copy of the order removing |
|
the lien under Section 53.160 and a certificate from the clerk of |
|
the court that states that no bond or deposit as described by |
|
Section 53.161 was filed by the claimant within 30 days after the |
|
date the order was entered. |
|
SECTION 29. Section 53.158, Property Code, is amended to |
|
read as follows: |
|
Sec. 53.158. PERIOD FOR BRINGING SUIT TO FORECLOSE LIEN. |
|
(a) Except as provided by Subsection (b), suit must be brought to |
|
foreclose the lien not later than the first anniversary of [within
|
|
two years after] the last date [day] a claimant may file the lien |
|
claim affidavit under Section 53.052 [or within one year after
|
|
completion, termination, or abandonment of the work under the
|
|
original contract under which the lien is claimed, whichever is
|
|
later]. |
|
(b) The period of limitations under Subsection (a) may be |
|
extended to not later than the second anniversary of the last date |
|
the claimant may file the affidavit if the claimant enters into a |
|
written agreement with the then current record owner of the |
|
property to extend the period and files the written agreement with |
|
the clerk of the county where all or part of the property is located |
|
before the expiration of the period provided by Subsection (a). |
|
[For a claim arising from a residential construction project, suit
|
|
must be brought to foreclose the lien within one year after the last
|
|
day a claimant may file a lien affidavit under Section 53.052 or
|
|
within one year after completion, termination, or abandonment of
|
|
the work under the original contract under which the lien is
|
|
claimed, whichever is later.] |
|
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. |
|
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 32. Section 53.161(f), Property Code, is amended to |
|
read as follows: |
|
(f) If the claimant fails to file the bond or the deposit in |
|
lieu of the bond in compliance with this section, the owner may |
|
file: |
|
(1) a certified copy of the order; and |
|
(2) a certificate from the clerk of the court stating |
|
that: |
|
(A) no bond or deposit in lieu of the bond was |
|
filed before the later of: |
|
(i) the 30th day [within 30 days] after the |
|
date the order was entered by the court; or |
|
(ii) the date ordered by the court under |
|
Subsection (b); and |
|
(B) no order staying the order to remove the lien |
|
was entered by the court. |
|
SECTION 33. Section 53.172, Property Code, is amended to |
|
read as follows: |
|
Sec. 53.172. BOND REQUIREMENTS. The bond must: |
|
(1) describe the property on which the liens are |
|
claimed; |
|
(2) refer to each lien claimed in a manner sufficient |
|
to identify it; |
|
(3) be in an amount that is double the amount of the |
|
liens referred to in the bond unless the total amount claimed in the |
|
liens exceeds $60,000 [$40,000], in which case the bond must be in |
|
an amount that is the greater of 1-1/2 times the amount of the liens |
|
or the sum of $60,000 [$40,000] and the amount of the liens; |
|
(4) be payable to the parties claiming the liens; |
|
(5) be executed by: |
|
(A) the party filing the bond as principal; and |
|
(B) a corporate surety authorized and admitted to |
|
do business under the law in this state and licensed by this state |
|
to execute the bond as surety, subject to Section 3503.005, |
|
Insurance Code [1, Chapter 87, Acts of the 56th Legislature,
|
|
Regular Session, 1959 (Article 7.19-1, Vernon's Texas Insurance
|
|
Code)]; and |
|
(6) be conditioned substantially that the principal |
|
and sureties will pay to the named obligees or to their assignees |
|
the amount that the named obligees would have been entitled to |
|
recover if their claims had been proved to be valid and enforceable |
|
liens on the property. |
|
SECTION 34. Section 53.201(b), Property Code, is amended to |
|
read as follows: |
|
(b) If a valid bond is filed, a claimant may not file suit |
|
against the owner or the owner's property and the owner is not |
|
authorized to withhold funds or pay a claimant on demand [relieved
|
|
of obligations] under Subchapter D [or E]. |
|
SECTION 35. Section 53.202, Property Code, is amended to |
|
read as follows: |
|
Sec. 53.202. BOND REQUIREMENTS. The bond must: |
|
(1) be in a penal sum at least equal to the total of the |
|
original contract amount; |
|
(2) be in favor of the owner; |
|
(3) have the written approval of the owner endorsed on |
|
it; |
|
(4) be executed by: |
|
(A) the original contractor as principal; and |
|
(B) a corporate surety authorized and admitted to |
|
do business in this state and licensed by this state to execute |
|
bonds as surety, subject to Section 3503.005, Insurance Code [1,
|
|
Chapter 87, Acts of the 56th Legislature, Regular Session, 1959
|
|
(Article 7.19-1, Vernon's Texas Insurance Code)]; |
|
(5) be conditioned on prompt payment for all labor, |
|
subcontracts, materials, specially fabricated materials, and |
|
normal and usual extras not exceeding 15 percent of the contract |
|
price; and |
|
(6) clearly and prominently display on the bond or on |
|
an attachment to the bond: |
|
(A) the name, mailing address, physical address, |
|
and telephone number, including the area code, of the surety |
|
company to which any notice of claim should be sent; or |
|
(B) the toll-free telephone number maintained by |
|
the Texas Department of Insurance under Subchapter B, Chapter 521, |
|
Insurance Code, and a statement that the address of the surety |
|
company to which any notice of claim should be sent may be obtained |
|
from the Texas Department of Insurance by calling the toll-free |
|
telephone number. |
|
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 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 38. Sections 53.259(a) and (c), Property Code, are |
|
amended to read as follows: |
|
(a) As a condition of final payment under a residential |
|
construction contract, the original contractor shall, at the time |
|
the final payment is tendered, execute and deliver to the owner, or |
|
the owner's agent, an affidavit acknowledging the amount claimed |
|
for payment and stating that the original contractor has paid each |
|
person in full for all labor and materials used in the construction |
|
of improvements on the real property. If the original contractor |
|
has not paid each person in full, the original contractor shall |
|
state in the affidavit the amount owed and the name and, if known, |
|
the address and telephone number of each person to whom a payment is |
|
owed. |
|
(c) A person commits an offense if the person intentionally, |
|
knowingly, or recklessly makes a false or misleading statement in |
|
an affidavit under this section. An offense under this section is a |
|
misdemeanor. A person adjudged guilty of an offense under this |
|
section shall be punished by a fine not to exceed $4,000 or |
|
confinement in jail for a term not to exceed one year or both a fine |
|
and confinement. [A person may not receive community supervision
|
|
for the offense.] |
|
SECTION 39. Section 53.281, Property Code, is amended to |
|
read as follows: |
|
Sec. 53.281. WAIVER AND RELEASE OF LIEN OR PAYMENT BOND |
|
CLAIM. (a) Except as provided by Section 53.287, any [Any] waiver |
|
and release of a lien or payment bond claim under this chapter is |
|
unenforceable unless a waiver and release is executed and delivered |
|
in accordance with this subchapter. |
|
(b) A waiver and release is effective to release the owner, |
|
the owner's property, the contractor, and the surety on a payment |
|
bond from claims and liens only if: |
|
(1) the waiver and release substantially complies with |
|
one of the forms prescribed by Section 53.284; |
|
(2) the waiver and release is signed by the claimant or |
|
the claimant's authorized agent and acknowledged [notarized]; and |
|
(3) in the case of a conditional release, evidence of |
|
payment to the claimant exists. |
|
(c) A waiver and release that substantially complies with a |
|
form required by Section 53.284 may be combined with a bills-paid |
|
affidavit that substantially conforms to the requirements of |
|
Section 53.085 or 53.259. |
|
SECTION 40. Section 53.283, Property Code, is amended to |
|
read as follows: |
|
Sec. 53.283. UNCONDITIONAL WAIVER AND RELEASE: PAYMENT |
|
REQUIRED. (a) A person may not require a claimant or potential |
|
claimant to execute an unconditional waiver and release for a |
|
progress payment or final payment amount unless the claimant or |
|
potential claimant received payment in that amount in good and |
|
sufficient funds. |
|
(b) Notwithstanding Subsection (a), a contractual |
|
requirement for a claimant to waive or release the claimant's lien |
|
rights under this chapter before performance of the work for which |
|
the claim for payment is asserted is void. |
|
(c) A claimant may tender an unconditional waiver and |
|
release for payment before the actual receipt of a payment to be |
|
delivered in trust to an attorney, title insurance company, title |
|
insurance agent, or federally insured financial institution acting |
|
as an escrow agent. The escrow agent may deliver the waiver and |
|
release only after the claimant has confirmed receipt of payment in |
|
good and sufficient funds. |
|
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). |
|
SECTION 42. 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). |
|
SECTION 43. 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 44. This Act takes effect May 1, 2018. |