Good Evening We are building a home utilizing a construction loan. The General Contractor requested a draw to pay for “Top out Plumbing” in November but after talking to the plumber they were never paid. The General Contractor is requesting the draw again, to pay the invoice for the “top out plumbing”, but they are classifying it under a different plumbing draw. Can a lien be filed on my property if we refuse to pay duplicate draw? Also, how can we make sure the subcontractor/plumber gets paid so they don’t file a lien on my property?
I would recommend engaging an attorney to advise you during the construction of your home. Once problems like these start to occur, more are sure to follow. If the plumber is not paid, there is a chance that a lien may be filed against your property. To ensure payment, you can pay the contractor for the plumber's invoice with a joint check made payable to both the contractor and the plumber. You can also require the general contractor to provide you with a lien waiver from the plumber (a conditional waiver at the time the check is delivered and an unconditional waiver once the check has cleared).
The legal analysis would start with a review of your contract with the general contractor (termed the original contractor under Chapter 53 of the Texas Property Code, the Chapter that governs the propriety of mechanic's liens), and then extend to any communications and payments which have occurred.
If the property under construction is your home, and you intend to live there, the property could be your homestead. If the property is an owner's homestead (meaning that the owner owns the property and lives there) then your contract with the builder would have to satisfy the requirements of Texas Property Code sections 53.254, et seq., which requires specified homestead lien warnings, signing by homeowner husband and wife, and recordation in the county property records.
You really should retain a construction attorney to review and evaluate your legal position based on the contract and pertinent documents. The right to be entitled to file a mechanic's lien is set out in Texas Property Code Chapter 53, and you really need to make sure that if a subcontractor files a lien, the subcontractor has properly and appropriately done so.
Filing an invalid lien could subject the filer to liability under the Texas Fraudulent Lien Act, and the filer could be liable for statutory damages of $10,000, or actual damages, whichever is greater, plus attorney's fees.
You should consider issuing joint checks to the builder and the subcontractors. You should also consider requiring lien waivers from the subcontractors and suppliers before making payment.
Good luck.