How many days do our subcontractors have before they are required to file intent to lien?
Full Question:
Answer:
The following are TX statutes:
§ 53.052 PROP. 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 PROP. 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.
§ 53.055 PROP. 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 PROP. Derivative Claimant: Notice to Owner or Original
Contractor
(a) Except as provided by Subchapter K, 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, 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 PROP. 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 PROP. Derivative Claimant: Notice for Specially Fabricated
Items
(a) Except as provided by Subchapter K, 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.
The following TX statutes apply only to residential projects:
§ 53.252 PROP. Derivative Claimant: Notice to Owner or Original
Contractor
(a) A claimant other than an original contractor must give the notice
prescribed by this section for the lien to be valid. If the property that
is the subject of the lien is a homestead, the notice must also comply
with Section 53.254.
(b) The claimant must give to the owner or reputed owner and 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 or specially fabricated material was delivered.
(c) To authorize the owner to withhold funds under Subchapter D, 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.
(d) The notice must be sent by registered or certified mail and must be
addressed to the owner or reputed owner and the original contractor, as
applicable, at the person's last known business or residence address.
(e) A copy of the statement or billing in the usual and customary form
is sufficient as notice under this section.
§ 53.253 PROP. Derivative Claimant: Notice for Specially Fabricated
Items
(a) If specially fabricated materials have not been delivered to the
property or incorporated in the residential construction project, the
claimant who specially fabricates material for incorporation in the
residential construction project must give notice under this section for
the lien to be valid.
(b) Once the specially fabricated materials have been delivered, the
claimant must give notice under Section 53.252.
(c) 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.
(d) The notice must contain:
(1) a statement that the order has been received and accepted; and
(2) the price of the order.
(e) 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.
(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 53.252.
§ 53.254 PROP. Homestead
(a) To fix a lien on a homestead, the person who is to furnish material
or perform labor and the owner must execute a written contract setting
forth the terms of the agreement.
(b) The contract must be executed before the material is furnished or
the labor is performed.
(c) If the owner is married, the contract must be signed by both
spouses.
(d) If the contract is made by an original contractor, the contract
inures to the benefit of all persons who labor or furnish material for
the original contractor.
(e) The contract must be filed with the county clerk of the county in
which the homestead is located. The county clerk shall record the
contract in records kept for that purpose.
(f) An affidavit for lien filed under this subchapter that relates to a
homestead must contain the following notice conspicuously printed,
stamped, or typed in a size equal to at least 10-point boldface or the
computer equivalent, at the top of the page:
"NOTICE: THIS IS NOT A LIEN. THIS IS ONLY AN AFFIDAVIT CLAIMING A
LIEN."
(g) For the lien on a homestead to be valid, the notice required to be
given to the owner under Section 53.252 must include or have attached the
following statement:
"If a subcontractor or supplier who furnishes materials or performs
labor for construction of improvements on your property is not paid, your
property may be subject to a lien for the unpaid amount if:
(1) after receiving notice of the unpaid claim from the claimant, you
fail to withhold payment to your contractor that is sufficient to cover
the unpaid claim until the dispute is resolved; or
(2) during construction and for 30 days after completion of
construction, you fail to retain 10 percent of the contract price or 10
percent of the value of the work performed by your contractor.
"If you have complied with the law regarding the 10 percent retainage
and you have withheld payment to the contractor sufficient to cover any
written notice of claim and have paid that amount, if any, to the
claimant, any lien claim filed on your property by a subcontractor or
supplier, other than a person who contracted directly with you, will not
be a valid lien on your property. In addition, except for the required 10
percent retainage, you are not liable to a subcontractor or supplier for
any amount paid to your contractor before you received written notice of
the claim."
§ 53.256 PROP. List of Subcontractors and Suppliers
(a) Except as provided by Subsection (d), for the construction of
improvements under a residential construction contract, the original
contractor shall:
(1) furnish to the owner before the commencement of construction a
written list that identifies by name, address, and telephone number each
subcontractor and supplier the contractor intends to use in the work to
be performed; and
(2) provide the owner with an updated list of subcontractors and
suppliers not later than the 15th day after the date a subcontractor or
supplier is added or deleted.
(b) The list must contain the following notice conspicuously printed,
stamped, or typed in a size equal to at least 10-point boldface or the
computer equivalent:
"NOTICE: THIS LIST OF SUBCONTRACTORS AND SUPPLIERS MAY NOT BE A FINAL
LISTING. UNLESS YOU SIGN A WAIVER OF YOUR RIGHT TO RECEIVE UPDATED
INFORMATION, THE CONTRACTOR IS REQUIRED BY LAW TO SUPPLY UPDATED
INFORMATION, AS THE INFORMATION BECOMES AVAILABLE, FOR EACH SUBCONTRACTOR
OR SUPPLIER USED IN THE WORK PERFORMED ON YOUR RESIDENCE."
(c) The failure of a contractor to comply with this section does not
invalidate a lien under this chapter, a contract lien, or a deed of
trust.
(d) An owner may waive the right to receive the list of subcontractors
and suppliers or any updated information required by this section only as
provided by this subsection. The waiver must be in writing and may be
included in the residential construction contract. If the waiver is not
included as a provision of the residential construction contract, the
separate waiver statement must be signed by the owner. The waiver must be
conspicuously printed in at least 10-point bold-faced type and read
substantially similar to the following:
"WAIVER OF THE LIST OF SUBCONTRACTORS AND SUPPLIERS. AN OWNER IS NOT
REQUIRED TO WAIVE THE RIGHT GRANTED BY SECTION 53.256, PROPERTY CODE, TO
RECEIVE FROM THE CONTRACTOR AN ORIGINAL OR UPDATED LIST OF SUBCONTRACTORS
AND SUPPLIERS.
"BY SIGNING THIS DOCUMENT, I AGREE TO WAIVE MY RIGHT TO RECEIVE FROM
THE CONTRACTOR AN ORIGINAL OR UPDATED LIST OF SUBCONTRACTORS AND
SUPPLIERS.
"I UNDERSTAND AND ACKNOWLEDGE THAT, AFTER SIGNING THIS DOCUMENT, THIS
WAIVER MAY NOT BE CANCELED AT A LATER DATE.
"I HAVE VOLUNTARILY CONSENTED TO THIS WAIVER."
§ 53.259 PROP. Final Bills-Paid Affidavit Required
(a) As a condition of final payment under a residential construction
contract, the original contractor shall, at the time the final payment is
tendered, execute and deliver to the owner, or the owner's agent, an
affidavit stating that the original contractor has paid each person in
full for all labor and materials used in the construction of improvements
on the real property. If the original contractor has not paid each person
in full, the original contractor shall state in the affidavit the amount
owed and the name and, if known, the address and telephone number of each
person to whom a payment is owed.
(b) The seller of any real property on which a structure of not more
than four units is constructed and that is intended as the principal
place of residence for the purchaser shall, at the closing of the purchase
of the real property, execute and deliver to the purchaser, or the
purchaser's agent, an affidavit stating that the seller has paid each
person in full for all labor and materials used in the construction of
improvements on the real property and that the seller is not indebted to
any person by reason of any construction. In the event that the seller
has not paid each person in full, the seller shall state in the affidavit
the amount owed and the name and, if known, the address and telephone
number of each person to whom a payment is owed.
(c) A person 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.
(d) 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.
Please see the information at the following links:
http://lawdigest.uslegal.com/contractors/construction-liens/5235/
http://definitions.uslegal.com/m/mechanics-lien/
http://definitions.uslegal.com/c/construction-liens/
Please see the forms at the following links:
http://www.uslegalforms.com/constructionliens/texas-mechanic-lien-forms.htm
http://www.uslegalforms.com/contractors/
http://www.uslegalforms.com/construction/home/
http://www.uslegalforms.com/formspackages/contractors-forms.htm
