Re: machenics lein / Time out for Mudge

More | Report Post

On 3/15/05, Curmudgeon---Don't Open
My Last Post wrote:
> I don't know what happened.
Tried to copy a single section, but
the
> whole damn chapter appeared.
>
Mudge! How many post it notes
have you had today?

> On 3/15/05, Curmudgeon wrote:
>> TEXAS PROPERTY CODE
>> [Mechanic's Lien Statutes in
effect as of August 1, 2003]
>> [Does not include any changes
which may become effective at a
later
>> date]
>>
>> CHAPTER 53. MECHANIC'S,
CONTRACTOR'S, OR MATERIALMAN'S LIEN
>>
>> TABLE OF CONTENTS
>>
>> SUBCHAPTER A. GENERAL PROVISIONS
>>
>>
>> § 53.001. Definitions
>>
>> § 53.002. More Than One Original
Contractor
>>
>> § 53.003. Notices"
>>
>> § 53.004. reserved for expansion
>>
>> § 53.020. reserved for expansion
>> SUBCHAPTER B PERSONS ENTITLED TO
LIEN; SUBJECT PROPERTY
>>
>>
>> § 53.021. Persons Entitled to
Lien
>>
>> § 53.022. Property to Which Lien
Extends
>>
>> § 53.023. Payment Secured by
Lien
>>
>> § 53.024. Limitation on
Subcontractor's Lien
>>
>> § 53.025. Limitation on Ordinary
Retainage Lien
>>
>> § 53.026. Sham Contract
>>
>> § 53.027. reserved for expansion
>>
>> § 53.028. reserved for expansion
>> SUBCHAPTER C PROCEDURE FOR
PERFECTING LIEN
>>
>>
>> § 53.051. Necessary Procedures
>>
>> § 53.052. Filing of Affidavit
>>
>> § 53.053. Accrual of
Indebtedness
>>
>> § 53.054. Contents of Affidavit
>>
>> § 53.055. Notice of Filed
Affidavit
>>
>> § 53.056. Derivative Claimant:
Notice to Owner or Original
>> Contractor
>>
>> § 53.057. Derivative Claimant:
Notice for Contractual Retainage
>> Claim
>>
>> § 53.058. Derivative Claimant:
Notice for Specially Fabricated
Items
>>
>> § 53.059. Repealed by Acts 1997,
75th Leg., ch. 526, s 24, eff.
>> Sept. 1, 1997
>>
>> § 53.060. reserved for expansion
>>
>> § 53.080. reserved for expansion
>> SUBCHAPTER D FUNDS WITHHELD BY
OWNER FOLLOWING NOTICE
>>
>>
>> § 53.081. Authority to Withhold
Funds for Benefit of Claimants
>>
>> § 53.082. Time for Which Funds
are Withheld
>>
>> § 53.083. Payment to Claimant on
Demand
>>
>> § 53.084. Owner's Liability
>>
>> § 53.085. Affidavit Required
>>
>> § 53.086. reserved for expansion
>>
>> § 53.100. reserved for expansion
>> SUBCHAPTER E REQUIRED RETAINAGE
FOR BENEFIT OF LIEN CLAIMANTS
>>
>>
>> § 53.101. Required Retainage
>>
>> § 53.102. Payment Secured by
Retainage
>>
>> § 53.103. Lien on Retained Funds
>>
>> § 53.104. Preferences
>>
>> § 53.105. Owner's Liability for
Failure to Retain
>>
>> § 53.106. Affidavit of
Completion
>>
>> § 53.107. reserved for expansion
>>
>> § 53.120. reserved for expansion
>> SUBCHAPTER F PRIORITIES AND
PREFERENCES
>>
>>
>> § 53.121. Preference Over Other
Creditors
>>
>> § 53.122. Equality of Mechanic's
Liens
>>
>> § 53.123. Priority of Mechanic's
Lien Over Other Liens
>>
>> § 53.124. Inception of
Mechanic's Lien
>>
>> § 53.125. reserved for expansion
>>
>> § 53.150. reserved for expansion
>> SUBCHAPTER G RELEASE AND
FORECLOSURE; ACTION ON CLAIM
>>
>>
>> § 53.151. Enforcement of
Remedies Against Money Due Original
>> Contractor
>>
>> or Subcontractor
>>
>> § 53.152. Release of Claim or
Lien
>>
>> § 53.153. Defense of Actions
>>
>> § 53.154. Foreclosure
>>
>> § 53.155. Transfer of Property
Sold
>>
>> § 53.156. Costs and Attorney's
Fees
>>
>> § 53.157. Discharge of Lien
>>
>> § 53.158. Period for Bringing
Suit to Foreclose Lien
>>
>> § 53.159. Obligation to Furnish
Information
>>
>> § 53.160. Summary Motion to
Remove Invalid or Unenforceable
Lien
>>
>> § 53.161. Bond Requirements
After Order to Remove
>>
>> § 53.162. Revival of Removed
Lien
>>
>> § 53.163. reserved for expansion
>>
>> § 53.170. reserved for expansion
>> SUBCHAPTER H BOND TO INDEMNIFY
AGAINST LIEN
>>
>>
>> § 53.171. Bond
>>
>> § 53.172. Bond Requirements
>>
>> § 53.173. Notice of Bond
>>
>> § 53.174. Recording of Bond and
Notice
>>
>> § 53.175. Action on Bond
>>
>> § 53.176. Repealed by Acts 1989,
71st Leg., ch. 1138, s 39(2), eff.
>> Sept. 1, 1989
>>
>> § 53.177. reserved for expansion
>>
>> § 53.200. reserved for expansion
>> SUBCHAPTER I BOND TO PAY LIENS
OR CLAIMS
>>
>>
>> § 53.201. Bond
>>
>> § 53.202. Bond Requirements
>>
>> § 53.203. Recording of Bond and
Contract
>>
>> § 53.204. Reliance on Record
>>
>> § 53.205. Enforceable Claims
>>
>> § 53.206. Perfection of Claim
>>
>> § 53.207. Owner's Notice of
Claim to Surety
>>
>> § 53.208. Action on Bond
>>
>> § 53.209. Repealed by Acts 1989,
71st Leg., ch. 1138, s 39(3), eff.
>> Sept. 1, 1989
>>
>> § 53.210. Claims in Excess of
Bond Amount
>>
>> § 53.211. Attempted Compliance
>>
>> § 53.212. reserved for expansion
>>
>> § 53.230. reserved for expansion
>> SUBCHAPTER J LIEN ON MONEY DUE
PUBLIC WORKS CONTRACTOR
>>
>>
>> § 53.231. Lien
>>
>> § 53.232. To Whom Notice Given;
Manner
>>
>> § 53.233. Contents of Notice
>>
>> § 53.234. Time for Notice
>>
>> § 53.235. Official to Retain
Funds
>>
>> § 53.236. Bond for Release of
Lien
>>
>> § 53.237. Bond Requirements
>>
>> § 53.238. Notice of Bond
>>
>> § 53.239. Action on Bond
>>
>> § 53.240. Repealed by Acts 1989,
71st Leg., ch. 1138, s 39(4), eff.
>> Sept. 1, 1989
>> SUBCHAPTER K RESIDENTIAL
CONSTRUCTION PROJECTS
>>
>>
>> § 53.251. Procedures for
Residential Construction Projects
>>
>> § 53.252. Derivative Claimant:
Notice to Owner or Original
>> Contractor
>>
>> § 53.253. Derivative Claimant:
Notice for Specially Fabricated
Items
>>
>> § 53.254. Homestead
>>
>> § 53.255. Disclosure Statement
Required for Residential
Construction
>> Contract
>>
>> § 53.256. List of Subcontractors
and Suppliers
>>
>> § 53.257. Provisions Related to
Closing of Loan for Construction of
>> Improvements
>>
>> § 53.258. Disbursements of Funds
>>
>> § 53.259. Final Bills-Paid
Affidavit Required
>>
>> § 53.260. Conveyance to
Contractor Not Required
>>
>> CHAPTER 53. MECHANIC'S,
CONTRACTOR'S, OR MATERIALMAN'S LIEN
>>
>>
>> SUBCHAPTER A. GENERAL PROVISIONS
>>
>> § 53.001. Definitions
>>
>> In this chapter:
>>
>>
>> (1) "Contract price" means the
cost to the owner for any part of
>> construction or repair performed
under an original contract.
>>
>> (2) "Improvement" includes:
>>
>> (A) 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.
>>
>> (3) "Labor" means labor used in
the direct prosecution of the work.
>>
>> (4) "Material" means all or part
of:
>>
>> (A) the material, machinery,
fixtures, or tools incorporated
into
>> the work, consumed in the direct
prosecution of the work, or ordered
>> and delivered for incorporation
or consumption;
>>
>> (B) rent at a reasonable rate
and actual running repairs at a
>> reasonable cost for construction
equipment used or reasonably
>> required and delivered for use
in the direct prosecution of the
work
>> at the site of the construction
or repair; or
>>
>> (C) power, water, fuel, and
lubricants consumed or ordered and
>> delivered for consumption in the
direct prosecution of the work.
>>
>> (5) "Mechanic's lien" means the
lien provided by this chapter.
>>
>> (6) "Original contract" means an
agreement to which an owner is a
>> party either directly or by
implication of law.
>>
>> (7) "Original contractor" means
a person contracting with an owner
>> either directly or through the
owner's agent.
>>
>> (8) "Residence" means a single-
family house, duplex, triplex, or
>> quadruplex or a unit in a
multiunit structure used for
residential
>> purposes that is:
>>
>> (A) owned by one or more adult
persons; and (B) used or intended
to
>> be used as a dwelling by one of
the owners.
>>
>> (9) "Residential construction
contract" means a contract between
an
>> owner and a contractor in which
the contractor agrees to construct
>> or repair the owner's residence,
including improvements appurtenant
>> to the residence.
>>
>> (10) "Residential construction
project" means a project for the
>> construction or repair of a new
or existing residence, including
>> improvements appurtenant to the
residence, as provided by a
>> residential construction
contract.
>>
>> (11) "Retainage" means an amount
representing part of a contract
>> payment that is not required to
be paid to the claimant within the
>> month following the month in
which labor is performed, material
is
>> furnished, or specially
fabricated material is delivered.
The term
>> does not include retainage under
Subchapter E. [FN1]
>>
>> (12) "Specially fabricated
material" means material fabricated
for
>> use as a component of the
construction or repair 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 to perform all or
part of the work required by an
>> original contract.
>>
>> (14) "Work" means any part of
construction or repair performed
under
>> an original contract.
>>
>> (15) "Completion" of an original
contract means the actual
>> completion of the work,
including any extras or change
orders
>> reasonably required or
contemplated under the original
contract,
>> other than warranty work or
replacement or repair of the work
>> performed under the contract.
>> § 53.002. More Than One Original
Contractor
>>
>> On any work there may be more
than one original contractor for
>> purposes of this chapter.
>>
>> § 53.003. Notices
>>
>>
>> (a) This section applies to
notices required by Subchapters B
>> through G and K. [FN1]
>>
>> (b) Any notice or other written
communication may be delivered in
>> person to the party entitled to
the notice or to that party's
agent,
>> regardless of the manner
prescribed by law.
>>
>> (c) If 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. This subsection
>> does not apply if the law
requires receipt of the notice by
the
>> person to whom it is directed.
>>
>> (d) If a written notice is
received by the person entitled to
>> receive it, the method by which
the notice was delivered is
>> immaterial.
>> [Sections 53.004 to 53.020
reserved for expansion]
>>
>> SUBCHAPTER B PERSONS ENTITLED TO
LIEN; SUBJECT PROPERTY
>>
>> § 53.021. Persons Entitled to
Lien
>>
>>
>> (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:
>>
>> (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 by virtue of a contract
>> with the owner or the owner's
agent, trustee, receiver,
contractor,
>> or subcontractor.
>>
>> (b) A person who specially
fabricates material has a lien even
if
>> the material is not delivered.
>>
>> (c) An architect, engineer, or
surveyor who prepares a plan or
plat
>> under or by virtue of a written
contract with the owner or the
>> owner's agent, trustee, or
receiver in connection with the
actual or
>> proposed design, construction,
or repair of improvements on real
>> property or the location of the
boundaries of real property has a
>> lien on the property.
>>
>> (d) A person who provides labor,
plant material, or other supplies
>> for the installation of
landscaping for a house, building,
or
>> improvement, including the
construction of a retention pond,
>> retaining wall, berm, irrigation
system, fountain, or other similar
>> installation, under or by virtue
of a written contract with the
>> owner or the owner's agent,
trustee, or receiver has a lien on
the
>> property.
>> § 53.022. Property to Which Lien
Extends
>>
>>
>> (a) The lien extends to 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) The lien does not extend to
abutting sidewalks, streets, and
>> utilities that are public
property.
>>
>> (c) A lien against land in a
city, town, or village extends to
each
>> lot on which the house,
building, or improvement is
situated or on
>> which the labor was performed.
>>
>> (d) A lien against land not in a
city, town, or village extends to
>> not more than 50 acres on which
the house, building, or improvement
>> is situated or on which the
labor was performed.
>> § 53.023. Payment Secured by
Lien
>>
>>
>> The lien secures payment for:
>>
>> (1) the labor done or material
furnished for the construction or
>> repair;
>>
>> (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
>>
>> (3) the preparation of a plan or
plat by an architect, engineer, or
>> surveyor in accordance with
Section 53.021(c).
>> § 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
>> 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.
>> § 53.025. Limitation on Ordinary
Retainage Lien
>>
>>
>> A lien for retainage is valid
only for the amount specified to be
>> retained in the contract,
including any amendments to the
contract,
>> between the claimant and the
original contractor or between the
>> claimant and a subcontractor.
>> § 53.026. Sham Contract
>>
>>
>> (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 person
through ownership of voting stock,
>> interlocking directorships, or
otherwise;
>>
>> (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.
>>
>> (b) In this section, "owner"
does not include a person who has
or
>> claims a security interest only.
>> [Sections 53.027 to 53.050
reserved for expansion]
>>
>>
>> SUBCHAPTER C PROCEDURE FOR
PERFECTING LIEN
>>
>> § 53.051. Necessary Procedures
>>
>>
>> To perfect the lien, a person
must comply with this subchapter.
>> § 53.052. Filing of Affidavit
>>
>>
>> (a) Except as provided by
Subsection (b), the person claiming
the
>> lien must file an affidavit 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 day
>> on which 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
day on which the indebtedness
>> accrues.
>>
>> (c) 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.
>> § 53.053. Accrual of
Indebtedness
>>
>>
>> (a) For purposes of Section
53.052, indebtedness accrues on a
>> contract under which a plan or
plat is prepared, labor was
>> performed, materials furnished,
or specially fabricated materials
>> are to be furnished in
accordance with this section.
>>
>> (b) Indebtedness to an original
contractor accrues:
>>
>> (1) on the last day of the month
in which a written declaration by
>> the original contractor or the
owner is received by the other
party
>> to the original contract stating
that the original contract has been
>> terminated; or
>>
>> (2) on the last day of the month
in which the original contract has
>> been completed, finally settled,
or abandoned.
>>
>> (c) Indebtedness to a
subcontractor, or to any person not
covered by
>> Subsection (b) or (d), who has
furnished labor or material to an
>> original contractor or to
another subcontractor accrues on
the last
>> day of the last month in which
the labor was performed or the
>> material furnished.
>>
>> (d) Indebtedness for specially
fabricated material accrues:
>>
>> (1) on the last day of the last
month in which materials were
>> delivered;
>>
>> (2) on the last day of the last
month in which delivery of the last
>> of the material would normally
have been required at the job site;
>> or
>>
>> (3) on the last day of the month
of any material breach or
>> termination of the original
contract by the owner or contractor
or
>> of the subcontract under which
the specially fabricated material
was
>> furnished.
>>
>> (e) A claim for retainage
accrues on the last day of the
month in
>> which all work called for by the
contract between the owner and the
>> original contractor has been
completed, finally settled, or
>> abandoned.
>> § 53.054. Contents of Affidavit
>>
>>
>> (a) The 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 the claim was sent to the owner
>> and the method by which the
notice was sent.
>>
>> (b) The claimant may attach to
the affidavit a copy of any
>> applicable written agreement or
contract and a copy of each notice
>> sent to the owner.
>>
>> (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
abbreviations or symbols customary
in the
>> trade.
>> § 53.055. Notice of Filed
Affidavit
>>
>>
>> (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.
>>
>> (b) If the person is not an
original contractor, 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
>> within the same period.
>> § 53.056. Derivative Claimant:
Notice to Owner or Original
>> Contractor
>>
>>
>> (a) Except as provided by
Subchapter K, [FN1] a claimant
other than
>> an original contractor must give
the notice prescribed by this
>> section for the lien to be
valid.
>>
>> (b) If the lien claim arises
from a debt incurred by a
>> subcontractor, the claimant must
give to the original contractor
>> written notice of the unpaid
balance. The claimant must give the
>> notice not later than the 15th
day of the second month following
>> each month in which all or part
of the claimant's labor was
>> performed or material delivered.
The claimant must give the same
>> notice to the owner or reputed
owner and the original contractor
not
>> later than the 15th day of the
third month following each month in
>> which all or part of the
claimant's labor was performed or
material
>> or specially fabricated material
was delivered.
>>
>> (c) If the lien claim arises
from a debt incurred by the
original
>> contractor, the claimant must
give notice to the owner or reputed
>> owner, with a copy to the
original contractor, in accordance
with
>> Subsection (b).
>>
>> (d) To authorize the owner to
withhold funds under Subchapter D,
>> [FN2] the notice to the owner
must state that if the claim
remains
>> unpaid, the owner may be
personally liable and the owner's
property
>> may be subjected to a lien
unless:
>>
>> (1) the owner withholds payments
from the contractor for payment of
>> the claim; or
>>
>> (2) the claim is otherwise paid
or settled.
>>
>> (e) The notice must be sent by
registered or certified mail and
must
>> be addressed to the owner or
reputed owner or the original
>> contractor, as applicable, at
his last known business or
residence
>> address.
>>
>> (f) A copy of the statement or
billing in the usual and customary
>> form is sufficient as notice
under this section.
>> § 53.057. Derivative Claimant:
Notice for Contractual Retainage
>> Claim
>>
>>
>> (a) A claimant may give notice
under this section instead of or in
>> addition to notice under Section
53.056 or 53.252 if the claimant is
>> to labor, furnish labor or
materials, or specially fabricate
>> materials under an agreement
with an original contractor or a
>> subcontractor providing for
retainage.
>>
>> (b) The claimant must give the
owner or reputed owner notice of
the
>> retainage agreement not later
than the 15th day of the second
month
>> following the delivery of
materials or the performance of
labor by
>> the claimant that first occurs
after the claimant has agreed to
the
>> contractual retainage. If the
agreement is with a subcontractor,
the
>> claimant must also give notice
within that time to the original
>> contractor.
>>
>> (c) The notice must contain:
>>
>> (1) the sum to be retained;
>>
>> (2) the due date or dates, if
known; and
>>
>> (3) a general indication of the
nature of the agreement.
>>
>> (d) The notice must be sent by
registered or certified mail to the
>> last known business or residence
address of the owner or reputed
>> owner or the original
contractor, as applicable.
>>
>> (e) If a claimant gives notice
under this section and Section
53.055
>> or, if the claim relates to a
residential construction project,
>> under this section and Section
53.252, the claimant is not
required
>> to give any other notice as to
the retainage.
>> § 53.058. Derivative Claimant:
Notice for Specially Fabricated
Items
>>
>>
>> (a) Except as provided by
Subchapter K, [FN1] a claimant who
>> specially fabricates material
must give notice under this section
>> for the lien to be valid.
>>
>> (b) The claimant must give the
owner or reputed owner notice not
>> later than the 15th day of the
second month after the month in
which
>> the claimant receives and
accepts the order for the material.
If the
>> indebtedness is incurred by a
person other than the original
>> contractor, the claimant must
also give notice within that time
to
>> the original contractor.
>>
>> (c) The notice must contain:
>>
>> (1) a statement that the order
has been received and accepted; and
>>
>> (2) the price of the order.
>>
>> (d) The notice must be sent by
registered or certified mail to the
>> last known business or residence
address of the owner or the reputed
>> owner or the original
contractor, as applicable.
>> (e) In addition to notice under
this section, the claimant must
give
>> notice under Section 53.056 if
delivery has been made or if the
>> normal delivery time for the job
has passed.
>>
>>
>> (f) The lien of a claimant who
accepts an order but fails to give
>> notice under this section is
valid as to delivered items if the
>> claimant has given notice under
Section 53.056.
>>
>> (g) If a retainage agreement
consists in whole or part of an
>> obligation to furnish specially
fabricated materials and the
>> claimant has given notice under
Section 53.057, the claimant is not
>> required to give notice under
this section.
>> § 53.059. Repealed by Acts 1997,
75th Leg., ch. 526, § 24, eff.
>> Sept. 1, 1997
>>
>> [Sections 53.060 to 53.080
reserved for expansion]
>>
>> SUBCHAPTER D FUNDS WITHHELD BY
OWNER FOLLOWING NOTICE
>>
>> § 53.081. Authority to Withhold
Funds for Benefit of Claimants
>>
>>
>> (a) If an owner receives notice
under Section 53.056, 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 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.
>> § 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, [FN1] 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.
>> § 53.083. Payment to Claimant on
Demand
>>
>>
>> (a) The claimant may make
written demand for payment of the
claim to
>> an owner authorized to withhold
funds under this subchapter. The
>> demand must give notice to the
owner that all or part of the claim
>> has accrued under Section 53.053
or is past due according to the
>> agreement between the parties.
>>
>> (b) The claimant must send a
copy of the demand to the original
>> contractor. The original
contractor may give the owner
written
>> notice that the contractor
intends to dispute the claim. The
>> original contractor must give
the notice not later than the 30th
day
>> after the day he receives the
copy of the demand. If the original
>> contractor does not give the
owner timely notice, he is
considered
>> to have assented to the demand
and the owner shall pay the claim.
>>
>> (c) The claimant's demand may
accompany the original notice of
>> nonpayment or of a past-due
claim and may be stamped or written
in
>> legible form on the face of the
notice.
>>
>> (d) Unless the lien has been
secured, the demand may not be made
>> after expiration of the time
within which the claimant may
secure
>> the lien for the claim.
>> § 53.084. Owner's Liability
>>
>>
>> (a) Except for the amount
required to be retained under
Subchapter
>> E, [FN1] 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
the notices required by Subchapter
C
>> [FN2] or K, [FN3] if the lien
has been secured, and if the claim
has
>> been reduced to final judgment,
the owner is liable and the owner's
>> property is subject to a claim
for any money paid to the original
>> contractor after the owner was
authorized to withhold funds under
>> this subchapter. The owner is
liable for that amount in addition
to
>> any amount for which he is
liable under Subchapter E.
>> § 53.085. Affidavit Required
>>
>>
>> (a) Any person who furnishes
labor or materials for the
construction
>> of improvements on real property
shall, if requested and as a
>> condition of payment for such
labor or materials, provide to the
>> requesting party, or the party's
agent, an affidavit stating that
>> the person has paid each of the
person's subcontractors, laborers,
>> or materialmen in full for all
labor and materials provided to the
>> person for the construction. In
the event, however, that the person
>> has not paid each of the
person's subcontractors, laborers,
or
>> materialmen in full, the person
shall state in the affidavit the
>> amount owed and the name and, if
known, the address and telephone
>> number of each subcontractor,
laborer, or materialman to whom the
>> payment is owed.
>>
>> (b) The seller of any real
property shall, upon request by the
>> purchaser or the purchaser's
agent prior to closing of the
purchase
>> of the real property, provide to
the purchaser or the purchaser's
>> agent, a written affidavit
stating that the seller has paid
each of
>> the seller's contractors,
laborers, or materialmen in full
for all
>> labor and materials provided to
the seller through the date
>> specified in the affidavit for
any construction of improvements on
>> the real property and that the
seller is not indebted to any
person,
>> firm, or corporation by reason
of any such construction through
the
>> date specified in the affidavit.
In the event that the seller has
>> not paid each of the seller's
contractors, laborers, or
materialmen
>> in full for labor and material
provided through the date specified
>> in the affidavit, the seller
shall state in the affidavit the
amount
>> owed and the name and, if known,
the address and telephone number of
>> each contractor, laborer, or
materialman to whom the payment is
>> owed.
>>
>> (c) The affidavit may include:
>>
>> (1) a waiver or release of lien
rights by the affiant that is
>> conditioned on the receipt of
actual payment or collection of
funds
>> when payment is made by check or
draft;
>>
>> (2) a warranty or representation
that certain bills or classes of
>> bills will be paid by the
affiant from funds paid in reliance
on the
>> affidavit; and
>>
>> (3) an indemnification by the
affiant for any loss or expense
>> resulting from false or
incorrect information in the
affidavit.
>>
>> (d) A person, including a
seller, commits an offense if the
person
>> intentionally, knowingly, or
recklessly makes a false or
misleading
>> statement in an affidavit under
this section. An offense under this
>> section is a misdemeanor. A
person adjudged guilty of an
offense
>> under this section shall be
punished by a fine not to exceed
$4,000
>> or confinement in jail for a
term not to exceed one year or both
a
>> fine and confinement. A person
may not receive community
supervision
>> for the offense.
>>
>> (e) A person signing an
affidavit under this section is
personally
>> liable for any loss or damage
resulting from any false or
incorrect
>> information in the affidavit.
>> [Sections 53.086 to 53.100
reserved for expansion]
>>
>> SUBCHAPTER E REQUIRED RETAINAGE
FOR BENEFIT OF LIEN CLAIMANTS
>>
>> § 53.101. Required Retainage
>>
>>
>> (a) During the progress of work
under an original contract for
which
>> a mechanic's lien may be claimed
and for 30 days after the work is
>> completed, the owner shall
retain:
>>
>> (1) 10 percent of the contract
price of the work to the owner; or
>>
>> (2) 10 percent of the value of
the work, measured by the
proportion
>> that the work done bears to the
work to be done, using the contract
>> price or, if there is no
contract price, using the
reasonable value
>> of the completed work.
>>
>> (b) In this section, "owner"
includes the owner's agent,
trustee, or
>> receiver.
>> § 53.102. Payment Secured by
Retainage
>>
>>
>> The retained funds secure the
payment of artisans and mechanics
who
>> perform labor or service and the
payment of other persons who
>> furnish material, material and
labor, or specially fabricated
>> material for any contractor,
subcontractor, agent, or receiver
in
>> the performance of the work.
>> § 53.103. Lien on Retained Funds
>>
>>
>> A claimant has a lien on the
retained funds if the claimant:
>>
>> (1) sends the notices required
by this chapter in the time and
>> manner required; and
>>
>> (2) files an affidavit claiming
a lien not later than the 30th day
>> after the work is completed.
>> § 53.104. Preferences
>>
>>
>> (a) Individual artisans and
mechanics are entitled to a
preference
>> to the retained funds and shall
share proportionately to the extent
>> of their claims for wages and
fringe benefits earned.
>>
>> (b) After payment of artisans
and mechanics who are entitled to a
>> preference under Subsection (a),
other participating claimants share
>> proportionately in the balance
of the retained funds.
>> § 53.105. Owner's Liability for
Failure to Retain
>>
>>
>> (a) If the owner fails or
refuses to comply with this
subchapter,
>> the claimants complying with
this chapter have a lien, at least
to
>> the extent of the amount that
should have been retained from the
>> original contract under which
they are claiming, against the
house,
>> building, structure, fixture, or
improvement and all of its
>> properties and against the lot
or lots of land necessarily
>> connected.
>>
>> (b) The claimants share the lien
proportionately in accordance with
>> the preference provided by
Section 53.104.
>> § 53.106. Affidavit of
Completion
>>
>>
>> (a) An owner may file with the
county clerk of the county in which
>> the property is located an
affidavit of completion. The
affidavit
>> 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 description of the
improvements furnished under the
original
>> contract;
>>
>> (5) a statement that the
improvements under the original
contract
>> have been completed and the date
of completion; and
>>
>> (6) a conspicuous statement that
a claimant may not have a lien on
>> retained funds unless the
claimant files the affidavit
claiming a
>> lien not later than the 30th day
after the date of completion.
>>
>> (b) A copy of the affidavit must
be sent by certified or registered
>> mail to the original contractor
not later than the date the
>> affidavit is filed and to each
claimant who sends a notice of lien
>> liability to the owner under
Section 53.056, 53.057, 53.058,
53.252,
>> or 53.253 not later than the
date the affidavit is filed or the
10th
>> day after the date the owner
receives the notice of lien
liability,
>> whichever is later.
>>
>> (c) A copy of the affidavit must
also be sent to each person who
>> furnishes labor or materials for
the property and who furnishes the
>> owner with a written request for
the copy. The owner must furnish
>> the copy to the person not later
than the date the affidavit is
>> filed or the 10th day after the
date the request is received,
>> whichever is later.
>>
>> (d) Except as provided by this
subsection, an affidavit filed
under
>> this section on or before the
10th day after the date of
completion
>> of the improvements is prima
facie evidence of the date the work
>> under the original contract is
completed for purposes of this
>> subchapter. If the affidavit is
filed after the 10th day after the
>> date of completion, the date of
completion for purposes of this
>> subchapter is the date the
affidavit is filed. This subsection
does
>> not apply to a person to whom
the affidavit was not sent as
required
>> by this section.
>>
>> (e) Repealed by Acts 1999, 76th
Leg., ch. 889, § 12, eff. Sept. 1,
>> 1999.
>> [Sections 53.107 to 53.120
reserved for expansion]
>>
>> SUBCHAPTER F PRIORITIES AND
PREFERENCES
>>
>> § 53.121. Preference Over Other
Creditors
>>
>>
>> All subcontractors, laborers,
and materialmen who have a
mechanic's
>> lien have preference over other
creditors of the original
>> contractor.
>> § 53.122. Equality of Mechanic's
Liens
>>
>>
>> (a) Except as provided by
Subchapter E [FN1] 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.
>>
>> (b) If the proceeds of a
foreclosure sale of property are
>> insufficient to discharge all
mechanic's liens against the
property,
>> the proceeds shall be paid pro
rata on the perfected mechanic's
>> liens on which suit is brought.
>>
>> (c) This chapter does not affect
the contract between the owner and
>> the original contractor as to
the amount, manner, or time of
payment
>> of the contract price.
>> § 53.123. Priority of Mechanic's
Lien Over Other Liens
>>
>>
>> (a) Except as provided by this
section, a mechanic's lien attaches
>> to 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.
>>
>> (b) The mechanic's lien does not
affect any lien, encumbrance, or
>> mortgage on the land or
improvement at the time of the
inception of
>> the mechanic's lien, and the
holder of the lien, encumbrance, or
>> mortgage need not be made a
party to a suit to foreclose the
>> mechanic's lien.
>> § 53.124. Inception of
Mechanic's Lien
>>
>>
>> (a) Except as provided by
Subsection (e), for purposes of
Section
>> 53.123, the time of inception of
a mechanic's lien is the
>> commencement of construction 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.
>>
>> (b) The construction or
materials under Subsection (a) must
be
>> visible from inspection of the
land on which the improvements are
>> being made.
>>
>> (c) 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) 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) or (d) 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) or (d) with respect to
>> other mechanic's liens is
determined by the date of
recording. A
>> lien created under Section 53.021
(c) or (d) 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.
>> [Sections 53.125 to 53.150
reserved for expansion]
>>
>> SUBCHAPTER G RELEASE AND
FORECLOSURE; ACTION ON CLAIM TEXAS
PROPERTY
>>
>> § 53.151. Enforcement of
Remedies Against Money Due Original
>> Contractor or Subcontractor
>>
>>
>> (a) A creditor of an original
contractor may not collect, enforce
a
>> security interest against,
garnish, or levy execution on the
money
>> due the original contractor or
the contractor's surety from the
>> owner, and a creditor of a
subcontractor may not collect,
enforce a
>> security interest against,
garnish, or levy execution on the
money
>> due the subcontractor, to the
prejudice of the subcontractors,
>> mechanics, laborers,
materialmen, or their sureties.
>>
>> (b) A surety issuing a payment
bond or performance bond in
>> connection with the 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.
>> § 53.152. Release of Claim or
Lien
>>
>>
>> (a) When a debt for labor or
materials is satisfied or paid by
>> collected funds, the person who
furnished the labor or materials
>> shall, not later than the 10th
day after the date of receipt of a
>> written request, furnish to the
requesting person a release of the
>> indebtedness and any lien
claimed, to the extent of the
indebtedness
>> paid. An owner, the original
contractor, or any person making
the
>> payment may request the release.
>>
>> (b) A release of lien must be in
a form that would permit it to be
>> filed of record.
>> § 53.153. Defense of Actions
>>
>>
>> (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 his own expense a suit
brought on the claim.
>>
>> (b) If the suit results in
judgment on the lien against the
owner or
>> the owner's property, the owner
is entitled to deduct the amount of
>> the judgment and costs from any
amount due the original contractor.
>> If the owner has settled with
the original contractor in full,
the
>> owner is entitled to recover
from the original contractor any
amount
>> paid for which the original
contractor was originally liable.
>> § 53.154. Foreclosure
>>
>>
>> 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.
>> § 53.155. Transfer of Property
Sold
>>
>>
>> If the house, building,
improvement, or any piece of
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 property.
>> § 53.156. Costs and Attorney's
Fees
>>
>>
>> In any proceeding to foreclose a
lien or to enforce a claim against
>> a bond issued under Subchapter
H, I, or J [FN1] or in any
proceeding
>> to declare that any lien or
claim is invalid or unenforceable
in
>> whole or in part, the court may
award costs and reasonable
>> attorney's fees as are equitable
and just.
>> § 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;
>> [FN1]
>>
>> (5) filing the bond in
compliance with Subchapter I; [FN2]
or
>>
>> § 53.158. Period for Bringing
Suit to Foreclose Lien
>>
>> (a) Except as provided by
Subsection (b), suit must be
brought to
>> foreclose the lien within two
years after the last day a claimant
>> 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.
>>
>> (b) 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.
>>
>>
>> On 3/15/05, v wrote:
>>> Have you checked the revised
>>> codes? Joisey is two years.
Used to
>>> be 20. With the option to renew
the
>>> lien in the twenyfirst year.
Then
>>> it ran till paid.
>>>
>>>
>>> On 3/15/05, roosta wrote:
>>>> On 3/15/05, Curmudgeon wrote:
>>>>> Perhaps someone can pitch in
if
>>> there is some peculiarity in
>>>>> Texas law. The general rule
is
>>> that mechanics liens expire
>>>>> after one year if they are
not
>>> foreclosed. In other words,
>>>>> you can't just sit on it. You
>>> either foreclose or lose the
>>>>> lien.
>>>>
>>>
http://www.capitol.state.tx.us/statu
>>> tes/pr.toc.htm
>>>> PROPERTY CODE
>>>> Title 5
>>>> CHAPTER 53. MECHANIC'S,
>>> CONTRACTOR'S, OR MATERIALMAN'S
LIEN