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A BILL TO BE ENTITLED
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AN ACT
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relating to mechanic's, contractor's, or materialman's liens. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Sections 53.001(2), (3), (4), (11), (13), and |
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(14), Property Code, are amended to read as follows: |
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(2) "Improvement" includes: |
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(A) permanent buildings, structures, parking |
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structures, appurtenances, [abutting sidewalks and] streets, |
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sidewalks, [and] utilities, rails for a rail system, and other |
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similar fixtures on or to be placed on real property [in or on those
|
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sidewalks and streets]; |
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(B) clearing, grubbing, draining, or fencing of |
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land as part of a construction project; |
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(C) plants, landscaping, ponds, and storage |
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facilities provided in conjunction with a construction project |
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[wells, cisterns, tanks, reservoirs, or artificial lakes or pools
|
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made for supplying or storing water]; and |
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(D) designs, drawings, plans, plats, surveys, |
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and specifications provided by licensed architects, engineers, or |
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surveyors [pumps, siphons, and windmills or other machinery or
|
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apparatuses used for raising water for stock, domestic use, or
|
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irrigation; and
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[(E)
planting orchard trees, grubbing out
|
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orchards and replacing trees, and pruning of orchard trees]. |
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(3) "Labor" means: |
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(A) labor used in the direct performance |
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[prosecution] of the construction of improvements; or |
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(B) professional services used in the direct |
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preparation of a design, drawing, plan, plat, survey, or |
|
specification [work]. |
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(4) "Material" means all or part of: |
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(A) the material, machinery, fixtures, or tools: |
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(i) incorporated into the work; |
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(ii) used[, consumed] in the direct |
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performance [prosecution] of the work; |
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(iii) specially fabricated and suitable |
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only for the work; [,] or |
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(iv) ordered and delivered for |
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incorporation or use in the work [consumption]; |
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(B) rent at a reasonable rate and actual running |
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repairs at a reasonable cost for construction equipment used [or
|
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reasonably required and delivered for use] in the direct |
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performance [prosecution] of the work at the site of the |
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construction or repair; or |
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(C) power, water, fuel, and lubricants used |
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[consumed or ordered and delivered for consumption] in the direct |
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performance [prosecution] of the work. |
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(11) "Retainage" means an amount representing part of |
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a contract payment that is not required to be paid to the claimant |
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within the month following the month in which labor is performed, |
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material is furnished, or specially fabricated material is |
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delivered. [The term does not include retainage under Subchapter
|
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E.] |
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(13) "Subcontractor" means a person who has furnished |
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labor or materials to fulfill an obligation to an original |
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contractor or to a subcontractor to perform all or part of the work |
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required by an original contract. The term includes a supplier of |
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specially fabricated material or of equipment or materials |
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delivered directly to the construction site. |
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(14) "Work" means any part of construction or repair |
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of an improvement performed under an original contract. |
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SECTION 2. Sections 53.003(a) and (c), Property Code, are |
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amended to read as follows: |
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(a) This section applies to notices required by this chapter |
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[Subchapters B through G and K]. |
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(c) If notice is sent by [registered or] certified mail, |
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deposit or mailing of the notice in the United States mail in the |
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form required constitutes compliance with the notice requirement. |
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This subsection does not apply if the law requires receipt of the |
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notice by the person to whom it is directed. |
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SECTION 3. Sections 53.021(a), (c), and (e), Property Code, |
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are amended to read as follows: |
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(a) A person can claim [has] a lien under this chapter if [:
|
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[(1)] the person [labors, specially fabricates
|
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material, or] furnishes labor or materials for construction or |
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repair [in this state] of an improvement [:
|
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[(A) a house, building, or improvement;
|
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[(B)
a levee or embankment to be erected for the
|
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reclamation of overflow land along a river or creek; or
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[(C) a railroad; and
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[(2)
the person labors, specially fabricates the
|
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material, or furnishes the labor or materials] under or by virtue of |
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a contract with the owner or the owner's agent, trustee, receiver, |
|
contractor, or subcontractor. |
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(c) A licensed [An] architect, engineer, or surveyor |
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providing services to prepare a design, drawing, plan, plat, |
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survey, or specification [who prepares a plan or plat] under [or by
|
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virtue of] a written contract can claim [with the owner or the
|
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owner's agent, trustee, or receiver in connection with the actual
|
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or proposed design, construction, or repair of improvements on real
|
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property or the location of the boundaries of real property has] a |
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lien under this chapter [on the property]. |
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(e) A person who performs labor as part of, or who furnishes |
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labor or materials for, the demolition of a structure on real |
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property under [or by virtue of] a written contract that is part of |
|
a project for the construction of an improvement can claim [with the
|
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owner of the property or the owner's agent, trustee, receiver,
|
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contractor, or subcontractor has] a lien under this chapter [on the
|
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property]. |
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SECTION 4. Sections 53.022(a) and (d), Property Code, are |
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amended to read as follows: |
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(a) The lien extends to the owner's interests in the |
|
improvements and to the particularly subdivided real property on |
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which work was performed [house, building, fixtures, or
|
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improvements, the land reclaimed from overflow, or the railroad and
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all of its properties, and to each lot of land necessarily connected
|
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or reclaimed]. |
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(d) A lien against land not subdivided in a city, town, or |
|
village extends to not more than 50 acres on which the [house,
|
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building, or] improvement is situated or on which the labor was |
|
performed. |
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SECTION 5. Section 53.023, Property Code, is amended to |
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read as follows: |
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Sec. 53.023. PAYMENT SECURED BY LIEN. (a) The lien secures |
|
payment for: |
|
(1) the labor done or material furnished for the |
|
construction, [or] repair, or demolition; or |
|
(2) the specially fabricated material, even if the |
|
material has not been delivered or incorporated into the |
|
construction or repair, less its fair salvage value [; or
|
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[(3)
the preparation of a plan or plat by an architect,
|
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engineer, or surveyor in accordance with Section 53.021(c)]. |
|
(b) Notwithstanding the foreclosure of a superior lien on |
|
real property, a subcontractor that supplied removables for an |
|
improvement and that secures a judgment validating the |
|
subcontractor's debt and mechanic's lien may obtain an order |
|
allowing the subcontractor to remove the amount of removables equal |
|
to the amount of the perfected lien interest, based on the fair |
|
market value of the removables. |
|
SECTION 6. Section 53.026(a), Property Code, is amended to |
|
read as follows: |
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(a) A person who [labors, specially fabricates materials,
|
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or] furnishes labor or materials under a direct contractual |
|
relationship with a purported original contractor may perfect |
|
[another person is considered to be in direct contractual
|
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relationship with the owner and has] a lien by following the |
|
procedures to perfect a lien of [as] an original contractor. For |
|
purposes of this subsection, a "purported original contractor" is a |
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contractor that [, if:
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[(1)] the owner [contracted with the other person for
|
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the construction or repair of a house, building, or improvements
|
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and the owner] can effectively control or that can effectively |
|
control the owner [that person] through common ownership, [of] |
|
voting stock, interlocking directorships, common management, or |
|
similar rights of control [otherwise;
|
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[(2)
the owner contracted with the other person for
|
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the construction or repair of a house, building, or improvements
|
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and that other person can effectively control the owner through
|
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ownership of voting stock, interlocking directorships, or
|
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otherwise; or
|
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[(3)
the owner contracted with the other person for
|
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the construction or repair of a house, building, or improvements
|
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and the contract was made without good faith intention of the
|
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parties that the other person was to perform the contract]. |
|
SECTION 7. Section 53.052, Property Code, is amended to |
|
read as follows: |
|
Sec. 53.052. FILING OF AFFIDAVIT. (a) Except as provided by |
|
Subsection (b), the person claiming the lien, other than a lien for |
|
contractual retainage, must file an affidavit with the county clerk |
|
[of the county in which the property is located or into which the
|
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railroad extends] not later than the 15th day of the fourth calendar |
|
month after the date the claimant: |
|
(1) last provided labor or materials; or |
|
(2) completed the fabrication of specially fabricated |
|
materials that were not delivered to the project site [day on which
|
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the indebtedness accrues]. |
|
(b) A person claiming a lien arising from a residential |
|
construction project must file an affidavit 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 claimant |
|
last provided labor or materials [day on which the indebtedness
|
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accrues]. |
|
(c) Except as provided by Section 53.107(d), a person |
|
claiming a lien for contractual retainage must file an affidavit |
|
with the county clerk not later than the 15th day of the third |
|
calendar month after the date the original contract under which the |
|
person performed was completed, abandoned, or terminated. |
|
(d) An affidavit under Subsection (c) must be filed in the |
|
county where the improvements are located. 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. |
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SECTION 8. Section 53.055(a), Property Code, is amended to |
|
read as follows: |
|
(a) A person who files an affidavit must send a copy of the |
|
affidavit by [registered or] certified mail to the owner or reputed |
|
owner at the owner's last known business or residence address not |
|
later than the fifth day after the date the affidavit is filed with |
|
the county clerk. |
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SECTION 9. The heading to Section 53.056, Property Code, is |
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amended to read as follows: |
|
Sec. 53.056. DERIVATIVE CLAIMANT: NOTICE TO OWNER AND [OR] |
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ORIGINAL CONTRACTOR. |
|
SECTION 10. Section 53.056, Property Code, is amended by |
|
amending Subsection (a) and adding Subsections (a-1) and (a-2) to |
|
read as follows: |
|
(a) A subcontractor [Except as provided by Subchapter K, a
|
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claimant other than an original contractor] must give the notices |
|
[notice] prescribed by this section and, if applicable, Section |
|
53.057 for the lien to be valid. |
|
(a-1) For all labor provided or materials provided or |
|
specially fabricated during a month, the subcontractor must send a |
|
notice of progress payment debt to the owner or reputed owner and |
|
the original contractor by certified mail. The notice must be sent: |
|
(1) for debt other than retainage debt, not later than |
|
the 15th day of the third month after the date the labor was |
|
provided or the materials were provided or specially fabricated; or |
|
(2) for residential construction projects, not later |
|
than the 15th day of the second month after the date the labor was |
|
provided or the materials were provided or specially fabricated. |
|
(a-2) The notice must read: |
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"NOTICE OF PROGRESS PAYMENT DEBT |
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"Date: __________________ |
|
"Subcontractor: __________________ |
|
"Original contractor: __________________ |
|
"Party contracting with subcontractor: __________________ |
|
"Months during which labor or materials were provided or |
|
special fabrication was completed for which payment has not yet |
|
been received: __________________ |
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"Total debt to date, including retainage: |
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__________________ |
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"Total debt to date, not including retainage: |
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__________________ |
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"The subcontractor below provides this notice only to |
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preserve the subcontractor's lien rights. |
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"__________________ (Subcontractor's signature) |
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"__________________ (Subcontractor's printed name) |
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"__________________ (Subcontractor's address)" |
|
SECTION 11. The heading to Section 53.057, Property Code, |
|
is amended to read as follows: |
|
Sec. 53.057. DERIVATIVE CLAIMANT: NOTICE FOR [CONTRACTUAL] |
|
RETAINAGE CLAIM. |
|
SECTION 12. Section 53.057, Property Code, is amended by |
|
amending Subsection (a) and adding Subsection (a-1) to read as |
|
follows: |
|
(a) A subcontractor whose contract provides for the |
|
withholding of retainage must [claimant may] give notice under this |
|
section [instead of or] in addition to notice under Section 53.056 |
|
for the retainage lien to be valid. The subcontractor must send the |
|
notice of retainage claim to the owner or reputed owner and the |
|
original contractor, by certified mail, not later than the 30th day |
|
after the date the subcontractor's contract providing for retainage |
|
is completed, terminated, or abandoned [or 53.252 if the claimant
|
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is to labor, furnish labor or materials, or specially fabricate
|
|
materials, or has labored, furnished labor or materials, or
|
|
specially fabricated materials, under an agreement with an original
|
|
contractor or a subcontractor providing for retainage]. |
|
(a-1) The notice must read: |
|
"NOTICE OF RETAINAGE CLAIM |
|
"Date: __________________ |
|
"Subcontractor: __________________ |
|
"Original contractor: __________________ |
|
"Party contracting with subcontractor: __________________ |
|
"Amount of subcontractual retainage outstanding: |
|
__________________ |
|
"The subcontractor below provides this notice only to |
|
preserve the subcontractor's lien rights for retainage. |
|
"__________________ (Subcontractor's signature) |
|
"__________________ (Subcontractor's printed name) |
|
"__________________ (Subcontractor's address)" |
|
SECTION 13. Section 53.081(a), Property Code, is amended to |
|
read as follows: |
|
(a) If an owner receives notice under Section 53.056 or [,] |
|
53.057, [53.058, 53.252, or 53.253,] the owner may withhold from |
|
payments to the original contractor an amount necessary to pay the |
|
claim for which the owner [he] receives notice. |
|
SECTION 14. Section 53.082, Property Code, is amended to |
|
read as follows: |
|
Sec. 53.082. TIME FOR WHICH FUNDS ARE WITHHELD. Unless |
|
[payment is made under Section 53.083 or] the claim is otherwise |
|
settled, discharged, indemnified against under Subchapter H or I, |
|
or determined to be invalid by a final judgment of a court, the |
|
owner may [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 15. Section 53.084, Property Code, is amended to |
|
read as follows: |
|
Sec. 53.084. OWNER'S LIABILITY. (a) Except for the amount |
|
described by Subsection (c) [required to be retained under
|
|
Subchapter E], the owner is not liable for any amount paid to the |
|
original contractor before the owner is authorized to withhold |
|
funds under this subchapter. |
|
(b) If the owner has received a notice [the notices] |
|
required by Section 53.056 or 53.057 [Subchapter C or K], if the |
|
lien has been secured, and if the claim has been reduced to final |
|
judgment, the owner is liable and the owner's property is subject to |
|
a claim for the amount the owner [any money] paid to the original |
|
contractor after the owner received the notice, which may not |
|
exceed the unpaid amount specified in the notice [was authorized to
|
|
withhold funds under this subchapter. The owner is liable for that
|
|
amount in addition to any amount for which he is liable under
|
|
Subchapter E]. |
|
(c) An owner is liable and the owner's property is subject |
|
to a claim for retainage debts of subcontractors of not more than 10 |
|
percent of the original contract price if: |
|
(1) the owner received the notices under Sections |
|
53.056 and 53.057; |
|
(2) the owner did not withhold sufficient funds from |
|
the original contractor to pay the amount owed; and |
|
(3) the claim has been reduced to final judgment. |
|
(d) Multiple claimants for retainage are entitled to a pro |
|
rata share of the claim amount allowed under Subsection (c). |
|
SECTION 16. The heading to Subchapter E, Chapter 53, |
|
Property Code, is amended to read as follows: |
|
SUBCHAPTER E. TERMINATION OR ABANDONMENT OF CONTRACT [REQUIRED
|
|
RETAINAGE FOR BENEFIT OF LIEN CLAIMANTS] |
|
SECTION 17. Sections 53.107(a), (b), and (d), Property |
|
Code, are amended to read as follows: |
|
(a) Not later than the 10th day after the date an original |
|
contract is terminated or the original contractor abandons |
|
performance under the original contract, the owner shall give |
|
notice to each subcontractor who, before the date of termination or |
|
abandonment, has: |
|
(1) given notice to the owner as provided by Section |
|
53.056 or [,] 53.057 [, or 53.058]; or |
|
(2) sent to the owner by certified [or registered] |
|
mail a written request for notice of termination or abandonment. |
|
(b) The notice must contain: |
|
(1) the name and address of the owner; |
|
(2) the name and address of the original contractor; |
|
(3) a description, legally sufficient for |
|
identification, of the real property on which the improvements are |
|
located; |
|
(4) a general description of the improvements agreed |
|
to be furnished under the original contract; |
|
(5) a statement that the original contract has been |
|
terminated or that performance under the contract has been |
|
abandoned; and |
|
(6) the date of the termination or abandonment [; and
|
|
[(7)
a conspicuous statement that a claimant may not
|
|
have a lien on the retained funds unless the claimant files an
|
|
affidavit claiming a lien not later than the 40th day after the date
|
|
of the termination or abandonment]. |
|
(d) If an owner is required to send a notice to a |
|
subcontractor under this section and fails to send the notice, the |
|
subcontractor's deadline to file an affidavit for contractual |
|
retainage under Section 53.052 is the last business day of the |
|
fourth calendar month after the date the original contract was |
|
terminated or abandoned [subcontractor is not required to comply
|
|
with Section 53.057 to claim retainage and may claim a lien by
|
|
filing a lien affidavit as prescribed by Section 53.052]. |
|
SECTION 18. Section 53.122(a), Property Code, is amended to |
|
read as follows: |
|
(a) Except as provided by [Subchapter E and] Section |
|
53.124(e), perfected mechanic's liens are on equal footing without |
|
reference to the date of filing the affidavit claiming the lien. |
|
SECTION 19. Section 53.123(a), Property Code, is amended to |
|
read as follows: |
|
(a) Except as provided by this section, a mechanic's lien |
|
attaches to an improvement [the house, building, improvements, or
|
|
railroad property] in preference to any prior lien, encumbrance, or |
|
mortgage on the land on which it is located, and the person |
|
enforcing the lien may have the [house, building,] improvement [,
|
|
or any piece of the railroad property] sold separately. |
|
SECTION 20. Section 53.124(e), Property Code, is amended to |
|
read as follows: |
|
(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 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. |
|
SECTION 21. Section 53.155, Property Code, is amended to |
|
read as follows: |
|
Sec. 53.155. TRANSFER OF PROPERTY SOLD. If the [house,
|
|
building,] improvement [,] or any piece of the improvement |
|
[railroad property] is sold separately, the officer making the sale |
|
shall place the purchaser in possession. The purchaser is entitled |
|
to a reasonable time after the date of purchase within which to |
|
remove the purchased improvement [property]. |
|
SECTION 22. 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 improvement [property] is located within |
|
the period prescribed by Section 53.158 or [,] 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 23. Section 53.158, Property Code, is amended by |
|
amending Subsection (a) and adding Subsection (a-1) to read as |
|
follows: |
|
(a) Suit [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 date [last day] a |
|
claimant filed [may file] the 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]. |
|
(a-1) Notwithstanding Section 16.069, Civil Practice and |
|
Remedies Code, or any other law, if suit is brought for an order |
|
finding that limitations have expired on bringing a lien |
|
foreclosure suit, the lien claimant's rights to pursue a suit to |
|
foreclose a lien are not revived. |
|
SECTION 24. Sections 53.159(a) and (f), Property Code, are |
|
amended to read as follows: |
|
(a) An owner or original contractor, 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. |
|
(f) A person [, other than a claimant requested to furnish
|
|
information under Subsection (d),] who fails to furnish information |
|
as required by this section is liable to the requesting person for |
|
that person's reasonable and necessary costs incurred in procuring |
|
the requested information. |
|
SECTION 25. Sections 53.160(a), (b), (c), and (e), Property |
|
Code, are amended to read as follows: |
|
(a) An owner or original contractor may bring suit [In a
|
|
suit brought to foreclose a lien or] to declare a claim or lien |
|
invalid or unenforceable [, a party objecting to the validity or
|
|
enforceability of the claim or lien may file a motion to remove the
|
|
claim or lien]. The original petition or subsequent motion must [be
|
|
verified and] state the legal and factual basis for objecting to the |
|
validity or enforceability of the claim or lien and must [.
The
|
|
motion may] be accompanied by supporting affidavits. |
|
(b) The grounds for objecting to the validity or |
|
enforceability of the claim or lien for purposes of the motion are |
|
limited to the following: |
|
(1) notice of claim was not timely furnished to the |
|
owner or original contractor as required by Section 53.056 or [,] |
|
53.057 [, 53.058, 53.252, or 53.253]; |
|
(2) 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 affidavit was not furnished to |
|
the owner or original contractor as required by Section 53.055; |
|
(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; |
|
(5) [(6)] when the lien affidavit was filed on |
|
homestead property: |
|
(A) no contract was executed or filed as required |
|
by Section 53.254; |
|
(B) the affidavit claiming a lien failed to |
|
contain the notice as required by Section 53.254; or |
|
(C) the notice of the claim failed to include the |
|
statement required by Section 53.254; and |
|
(6) [(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 by at least 30 [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.] |
|
(e) The court shall promptly determine a motion to remove a |
|
claim or lien under this section under the same standards as a |
|
motion for summary judgment. If the court determines that the |
|
movant is not entitled to remove the lien, the court shall enter an |
|
order denying the motion. If the court determines that the movant is |
|
entitled to remove the lien, the court shall enter an order removing |
|
the lien claimed in the lien affidavit. The order is appealable if |
|
the order is the final order in the case [A party to the proceeding
|
|
may not file an interlocutory appeal from the court's order]. |
|
SECTION 26. Sections 53.161(a) and (g), Property Code, are |
|
amended to read as follows: |
|
(a) In the order removing a lien, the court shall set the |
|
amount of security that the claimant may provide in order to |
|
preserve the potential validity of the lien claim on appeal [stay
|
|
the removal of the claim or lien]. The amount of the security [sum] |
|
must be at least 75 percent of the [an] amount of the lien claim plus |
|
[that the court determines is] a reasonable estimate of the costs |
|
and attorney's fees the movant is likely to incur in the appeal |
|
[proceeding] to determine the validity or enforceability of the |
|
lien. [The sum may not exceed the amount of the lien claim.] |
|
(g) If an appeal is not taken or if the bond or deposit is |
|
not timely made, the [The] claim or lien is removed and extinguished |
|
as to a creditor or subsequent purchaser for valuable consideration |
|
who obtains an interest in the property [after the certified copy of
|
|
the order and certificate of the clerk of the court are filed with
|
|
the county clerk.
The removal of the lien does not constitute a
|
|
release of the liability of the owner, if any, to the claimant]. |
|
SECTION 27. Section 53.205(a), Property Code, is amended to |
|
read as follows: |
|
(a) The bond protects all persons with a claim that is [:
|
|
[(1)] perfected in the manner prescribed for fixing a |
|
lien [under Subchapter C or, if the claim relates to a residential
|
|
construction project, under Subchapter K; or
|
|
[(2)
perfected in the manner prescribed by Section
|
|
53.206]. |
|
SECTION 28. Sections 53.206(a), (b), and (d), 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 and surety on |
|
the bond all applicable notices under the appropriate subchapter [;
|
|
and
|
|
[(2)
give to the surety on the bond, 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. |
|
(d) A person satisfies the requirements of this section |
|
relating to providing notice to the surety if the person mails the |
|
notice by certified [or registered] mail to the surety: |
|
(1) at the address stated on the bond or on an |
|
attachment to the bond; |
|
(2) at the address on file with the Texas Department of |
|
Insurance; or |
|
(3) at any other address allowed by law. |
|
SECTION 29. Section 53.207, Property Code, is amended to |
|
read as follows: |
|
Sec. 53.207. FAILURE TO SEND [OWNER'S] NOTICE OF CLAIM TO |
|
SURETY. [(a)] If the owner receives any of the notices or a lien is |
|
fixed under this chapter [Subchapter C or K], the failure [owner
|
|
shall mail to the surety on the bond a copy of all notices received.
|
|
[(b) Failure] of the owner to send copies of notices to the |
|
surety does not relieve the surety of any liability under the bond |
|
if the claimant has complied with the requirements of this |
|
subchapter, nor does that failure impose any liability on the |
|
owner. |
|
SECTION 30. The heading to Section 53.254, Property Code, |
|
is amended to read as follows: |
|
Sec. 53.254. CONTRACT REQUIREMENTS FOR LIEN ON HOMESTEAD. |
|
SECTION 31. Section 53.254(g), Property Code, is amended to |
|
read as follows: |
|
(g) For the lien on a homestead to be valid, a [the] notice |
|
must [required to] be given to the owner with the original contract |
|
and [under Section 53.252] must include or have attached the |
|
following statement: |
|
"If a subcontractor or supplier who furnishes materials or |
|
performs labor for construction of improvements on your property is |
|
not paid, your property may be subject to a lien for the unpaid |
|
amount if[:
|
|
[(1)] after receiving notice of the unpaid claim from |
|
the claimant, you fail to withhold payment to your contractor that |
|
is sufficient to cover the unpaid claim until the dispute is |
|
resolved. Additionally, you may be liable for up to an additional |
|
10 percent of the price of the original contract for contractual |
|
retainage claims"[; or
|
|
[(2)
during construction and for 30 days after
|
|
completion of construction, you fail to retain 10 percent of the
|
|
contract price or 10 percent of the value of the work performed by
|
|
your contractor]. |
|
["If you have complied with the law regarding the 10 percent
|
|
retainage and you have withheld payment to the contractor
|
|
sufficient to cover any written notice of claim and have paid that
|
|
amount, if any, to the claimant, any lien claim filed on your
|
|
property by a subcontractor or supplier, other than a person who
|
|
contracted directly with you, will not be a valid lien on your
|
|
property. In addition, except for the required 10 percent
|
|
retainage, you are not liable to a subcontractor or supplier for any
|
|
amount paid to your contractor before you received written notice
|
|
of the claim."] |
|
SECTION 32. 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 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 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. 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 |
|
the greater of the amount you are required to withhold under the |
|
contract or an amount equal to 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 at least [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. 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 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 33. Section 53.281(b), Property Code, is amended to |
|
read as follows: |
|
(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 notarized]; and |
|
(3) in the case of a conditional release, evidence of |
|
payment to the claimant exists. |
|
SECTION 34. Sections 53.282(a) and (b), Property Code, are |
|
amended to read as follows: |
|
(a) A statement purporting to waive, release, or otherwise |
|
adversely affect a lien or payment bond claim is not enforceable and |
|
does not create an estoppel or impairment of a lien or payment bond |
|
claim unless: |
|
(1) the statement is in writing and substantially |
|
complies with a form prescribed by Section 53.284; |
|
(2) for a conditional lien waiver, the claimant has |
|
actually received payment in good and sufficient funds in full for |
|
the lien or payment bond claim; or |
|
(3) the statement is: |
|
(A) in a written original contract or subcontract |
|
for the construction, remodel, or repair of a single-family house, |
|
townhouse, or duplex or for land development related to a |
|
single-family house, townhouse, or duplex; and |
|
(B) made before labor or materials are provided |
|
under the original contract or subcontract. |
|
(b) The filing of a lien rendered unenforceable by a lien |
|
waiver under Subsection (a)(3) is a violation of [does not violate] |
|
Section 12.002, Civil Practice and Remedies Code[, unless:
|
|
[(1)
an owner or original contractor sends a written
|
|
explanation of the basis for nonpayment, evidence of the
|
|
contractual waiver of lien rights, and a notice of request for
|
|
release of the lien to the claimant at the claimant's address stated
|
|
in the lien affidavit; and
|
|
[(2)
the lien claimant does not release the filed lien
|
|
affidavit on or before the 14th day after the date the owner or the
|
|
original contractor sends the items required by Subdivision (1)]. |
|
SECTION 35. Sections 53.284(b) and (c), Property Code, are |
|
amended 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) to the following extent: ______________________ (job |
|
description). |
|
"This release covers a progress payment for all labor, |
|
services, equipment, or materials furnished to the property or to |
|
__________________ (person with whom signer contracted) as |
|
indicated in the attached statement(s) or progress payment |
|
request(s), except for unpaid retention, pending modifications and |
|
changes, or other items furnished. This excludes retainage and the |
|
following open matters: ___________________________. |
|
"Before any recipient of this document relies on this |
|
document, the recipient should verify evidence of payment to the |
|
signer. |
|
"The signer warrants that the signer has already paid or will |
|
use the funds received from this progress payment to promptly pay in |
|
full all of the signer's laborers, subcontractors, materialmen, and |
|
suppliers for all work, materials, equipment, or services provided |
|
for or to the above referenced project in regard to the attached |
|
statement(s) or progress payment request(s). |
|
"Date ____________________________ |
|
"_________________________________ (Company name) |
|
"By ______________________________ (Signature) |
|
"_________________________________ (Title)" |
|
(c) If a claimant or potential claimant is required to |
|
execute an unconditional waiver and release to prove the receipt of |
|
good and sufficient funds for a progress payment and the claimant or |
|
potential claimant asserts in the waiver and release that the |
|
claimant or potential claimant has been paid the progress payment, |
|
the waiver and release must: |
|
(1) contain a notice at the top of the document, |
|
printed in bold type at least as large as the largest type used in |
|
the document, but not smaller than 10-point type, that reads: |
|
"NOTICE: |
|
"This document waives rights unconditionally and states that |
|
you have been paid for giving up those rights. 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) to the following extent: |
|
______________________ (job description). The signer therefore |
|
waives and releases any mechanic's lien right, any right arising |
|
from a payment bond that complies with a state or federal statute, |
|
any common law payment bond right, any claim for payment, and any |
|
rights under any similar ordinance, rule, or statute related to |
|
claim or payment rights for persons in the signer's position that |
|
the signer has on the above referenced project to the following |
|
extent: |
|
"This release covers a progress payment for all labor, |
|
services, equipment, or materials furnished to the property or to |
|
__________________ (person with whom signer contracted) as |
|
indicated in the attached statement(s) or progress payment |
|
request(s), except for unpaid retention, pending modifications and |
|
changes, or other items furnished. This excludes retainage and the |
|
following open matters:___________________________. |
|
"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)" |
|
SECTION 36. The following provisions of the Property Code |
|
are repealed: |
|
(1) Sections 53.021(b) and (d); |
|
(2) Section 53.022(c); |
|
(3) Section 53.026(b); |
|
(4) Section 53.053; |
|
(5) Sections 53.056(b), (c), (d), (e), and (f); |
|
(6) Sections 53.057(b), (b-1), (c), (d), (e), (f), and |
|
(g); |
|
(7) Section 53.058; |
|
(8) Sections 53.081(b), (c), and (d); |
|
(9) Section 53.083; |
|
(10) Sections 53.101, 53.102, 53.103, 53.104, 53.105, |
|
and 53.106; |
|
(11) Section 53.107(e); |
|
(12) Section 53.158(b); |
|
(13) Sections 53.159(b), (c), (d), and (e); |
|
(14) Section 53.160(f); |
|
(15) Sections 53.161(b) and (f); |
|
(16) Section 53.162; |
|
(17) Sections 53.203(d) and (e); |
|
(18) Section 53.205(b); |
|
(19) Section 53.206(c); |
|
(20) Sections 53.252 and 53.253; and |
|
(21) Section 53.283. |
|
SECTION 37. 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 |
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effect for that purpose. |
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SECTION 38. This Act takes effect September 1, 2019. |