Roofing company came out to assess my roof for repairs back in 2020. The insurance adjuster also came out. The roofing and restoration company were responsible for replacing my roof and a window that was leaking. They finally got around to replacing the roof, but never did the work or came out to repair the leaking window. It's 2022 and my window is still not fixed, and they are requesting that I send them the last portion of the money that the insurance company sent me to have the window fixed. They have not sent me a copy of the contract, or I don't have any written notices that the company has claimed to have sent me. It's been over 2 years and now I get this letter in the mail that seems threatning and overwhelming. Stating there is a lien against my home and now they will be proceeding to forclose on my home. What are my rights?
Texas law is meant to protect homesteads at virtually all
costs. First, you should make sure your property is considered your homestead.
If you reside there most of the time, it is likely your homestead (though more
facts are needed to confirm this).
Assuming the property is your homestead, there are several
steps the contractor needs to do for the lien to be enforceable. These include getting
a written contract signed before the work begins; the contract must have been signed
by you and your spouse (if the home is owned by you and your spouse); specific
language in the contract is required; the contract must have been filed in the
county property records in the county where the property is located before the
lien was filed; and the lien must include specific language per Texas Property
Code 53.254. The contractor was also required to give you a statutory disclosure
as well before starting work. Also, for a contract entered prior to Jan. 2022, the
statute of limitations to foreclose was two years. Given your description, it
is also possible the statute of limitations ran on the contractor’s foreclosure
of lien claim, further preventing them from enforcing the lien.
You should discuss in more detail with a construction
attorney and have them review the lien. They may be able to help you take
action to remove the lien and possibly have the contractor complete the work
they were hired to perform. Let me know
if I can help further.
This answer is general and should not be construed as legal advice, as we do not
know the specific facts of your legal issue. Any comments provided are general
and not meant to create an attorney-client relationship. If you would like more
information, feel free to contact our office. Thanks, Mario Lamar, Attorney at
Allen Bryson, PLLC, 4131 N. Central Expwy, Suite 900, Dallas, Texas 75204
(214-586-0722).
You are going to need an attorney to help you. Our contact information can be found on our attorney profile that's providing you with your answer.
Expedited Procedure for Removal of Invalid or Defective Liens
What if the mechanic’s lien is alleged to be invalid or defective? Property Code Section 53.160 provides an expedited procedure for removal of an “invalid or unenforceable” lien from any real property, whether homestead or not. Grounds must be among those specified in the statute, specifically:
(1) notice of claim was not furnished to the owner or original contractor as required by section 53.056, 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 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 the perfection of a claim against the statutory retainage have been deposited in the registry of the court and the owner has no additional liability to the claimant;
(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
(7) the claimant executed a valid and enforceable waiver or release of the claim or lien claimed in the affidavit.
Filing Suit to Remove an M&M Lien
The least expensive means of contesting a wrongful or invalid M&M lien would be to file a countervailing affidavit in the real property records, but this would merely state one’s sworn opinion that the lien is invalid, perhaps for some title company to evaluate with regard to a future transaction. It would not remove or release the lien.
Section 53.160 prescribes the approved procedure for filing a “motion to remove a claim or lien.” Although the statute references a motion, the best practice would be to file a lawsuit to remove the lien and then assert the motion ancillary thereto. A 21-day period must elapse between notice and hearing, although the lien claimant is not required to answer the motion. At the hearing, the lien claimant bears the burden of proving that notice was properly given and the lien affidavit duly filed. The movant seeking removal of the lien bears the burden on any remaining issues. There is no appeal from this, but the lien claimant does have the option of posting a bond in order to keep the lien in the real property records.
This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on this site are of a general nature only and are not meant to create an attorney-client relationship. You are encouraged to seek independent and private counseling for a complete review of your case.