The subcontractor did not follow the Texas requirements of sending 2 notices prior to recording a lien, nor did he provide the notice of the recording via certified mail within 5 days. He filed a lien affidavit on my property without doing these things. What can I do?
Hello,
The first thing you should do is write a letter detailing the steps he did not follow and let him know that his lien may be invalid and may subject him to monetary penalties if and when you take him to court to have it removed. Ask him to remove it so everyone can go on with their day.
If he refuses to remove it, you sue to have the lien declared invalid because of the noncompliance with Chapter 53 of the Texas Property Code. It's not a difficult suit and it must be done in District Court.
E. Aaron Cartwright III
214.799.0776
Aaron@EACLawyer.com
You do not indicate how you are connected with the project. Are you the owner or original contractor or what? What kind of project -- residential or commercial?
If the project involves a residential home, the home could be someone's homestead. For the house to be a homestead, the house has to be titled in the owner's name and the owner must live there. The contractor that contracted with the owner is called the "original contractor" under Chapter 53 of the Texas Property Code (which governs the propriety of mechanic's liens). If the property at issue is someone's homestead, then for a contractor to be entitled to file a valid mechanic's lien against the homestead, he would have to comply with Chapter 53 of the Texas Property Code. Among the requirements are a written contract signed by the owners of the homestead (husband and wife), certain homestead warnings, and filing of the contract with the county clerk. Those formalities do not usually happen. Without them, any attempted mechanic's lien filing would be invalid.
If the original contractor did not properly perfect a homestead mechanic's lien contract, then no contractor, subcontractor or supplier can file a valid mechanic's lien against the homestead.
Whether the project was residential or commercial, then the subcontractor was required to provide notice of non-payment and to request funds trapping by the 15th day of the second month after the month of the unpaid work (for residential projects) or by the 15th day of the third month after the month of the unpaid work (for commercial projects.
If the notice letter was not mailed by certified mail, then the subcontractor's claim would not be valid. Likewise, if the lien claimant did not provide certified mailing of its lien filing within five days, the lien would be invalid.
If the lien is invalid, you should write a letter by certified mail to the lien claimant to demand that the lien be released, pointing out why the lien is invalid. If the lien claimant does not voluntarily release the lien, he could be liable for a fraudulent lien under Chapter 12 of the Texas Civil Practice & Remedies Code. Chapter 12 can award damages of $10,000 or actual damages whichever is greater, plus attorney's fees.
You can also demand that the lien be released under Section 53.160 of the Texas Property Code, which provides for a summary procedure (no trial necessary) for the removal of an invalid lien on someone's homestead.
Retain a construction attorney to evaluate your legal situation and to provide advice.
Good luck.