I represent a subcontractor who wants to be paid his final draw of $25,000. I received an email from the owner saying she doesn't have to pay my client because the GC was supposedly paid in full but has abandoned the project leaving my client without the final payment of $25,000. The property owner says she will not pay as she has committed no fraud. We mailed the notice of intent as of July 28 and would like to proceed with filing the lien.
Thank you Tony for assisting in an unexplored area of law for me. I have perused your answer. Just to be clear, this is the complete state of affairs. My client has acted in good faith and provided material specific to the contract which are 16 condensers and 16 handlers which have been sitting on the roof of this now abandoned construction site. The materials are not attached in any way as they were lfted by crane to the roof. The GC is no where to be found. The owner says that her attorney will be contacting me but no correspondence as of yet. Owner states she has committed no fraud and states the GC was paid in full and we are not to file a lien rather we should sue the GC in a civil suit under "white crimes"? I would rather file the lien of record and negotiate thereafter. At one point my subcontractor was willing to just regain his equipment off the roof and get what he can. That would require him to pay for another crane and that is costly.
All this info, but my ultimate question is can in lien now?
Thank you so much for your seasoned advice and I look forward to your response.
Sherry Bravo, Attorney at Law, TB#029203501001 Water St., Ste B-100, Kerrville, TX 78028, {210} 480-5108, sbravotaylor@gmail.com
Seems as though you are dealing with a commercial property or a residential property with more than 4 units. If so, then you would have had to provide the owner notice of non-payment by certified mail with a funds trapping request by the 15th day of the third month after the end of the month in which your unpaid work was performed. The funds trapping notice requires the owner to withhold money from the general contractor (termed the "original contractor" under Chapter 53 of the Texas Property Code, which governs mechanic's liens).
The owner is also required to withhold 10% retainage from the original contractor until at least 30 days after the project is fully completed.
The owner's good faith or lack of fraud is irrelevant with respect to the owner's liability under Chapter 53.
The owner could have liability under Chapter 162 of the Texas Property Code (Texas Construction Trust Fund Act) if the owner did not pay properly to the original contractor. That is where a lack of good faith or fraud could be relevant.
Retain a construction attorney to evaluate your legal situation and to provide advice.
Good luck.
Hello, Sherry!
I hope the call helped!
E. Aaron Cartwright III
214.799.0776
Info@EACLawyer.com