How do you file a lien on a common area of a HOA?
Full Question:
Answer:
The answer depends on all the facts involved, such as whether lien waivers have been signed, whether other liens may take priority, etc. In some cases, a notice of an intent to file a lien may prompt payment. However, there are time periods for filing (see statutes below) and the chance other liens filed in the meantime will take priority.
A lien is a claim to property for the payment of a debt, typically one connected to the property. It is the right to retain the lawful possession of the property of another until the owner fulfills a legal duty to the person holding the property, such as the payment of lawful charges for work done on the property. The right of lien generally arises by operation of law, but in some cases it is created by express contract. There are two kinds of liens; particular and general. When a person claims a right to retain property, due to money or labor invested in that property, it is a particular lien. Liens may arise by express contract; from implied contract, as from general or particular usage of trade; or by legal relation between the parties, such as created with common carriers and inn keepers. To create a valid lien, it is essential that the party claiming a lien should have the absolute property or ownership of the thing or, at least, a right to vest it; that the party claiming the lien should have an actual or constructive, possession, with the assent of the party against whom the claim is made; that the lien should arise upon an agreement, express or implied and not be for a limited or specific purpose that contradicts the express terms or the clear, intent of the contract. In certain circumstances, the lien holder may foreclose on the property if the debt is not paid in full. Liens can generally be removed by the payment of the amount owed. This payment can occur at any time up to and including the stage at which the closing documents for the sale of the property are signed.
There are several types of liens, all of which could cloud the title and prevent the seller from conveying marketable title to the buyer. In some states, a mortgage is regarded as a lien, not a complete transfer of title, and if not repaid the debt is recovered by foreclosure and sale of the real estate. Real estate can also be affected by liens for federal income taxes. Additionally, liens can be placed on property for the non-payment of real estate taxes and special assessments, including homeowners' association dues.
A judgment lien is created when a court grants a creditor an interest in the debtor's property, based upon a court judgment. A judgment lien can be filed if an actual judgment in a lawsuit is obtained from a court. Such cases include failure to pay a debt, including credit cards, bank loans, or deficiency judgments on repossessed vehicles. In some circumstances, judgments can be enforced by sale of property until the amount due is satisfied. A plaintiff who obtains a monetary judgment is termed a "judgment creditor." The defendant becomes a "judgment debtor." secure payment of the claim to the injured party. After the judgment creditor places a lien upon the attached property, the next step in the collection process is to conduct a sale of the attached property to satisfy the judgment debt. If a lien were placed on a home, the judgment creditor would then seek to foreclose on the property, in the same way a mortgage holder such as a bank would foreclose if it were not paid. Laws regarding judgment liens vary by jurisdiction, so local laws should be consulted for specific requirements.
Liens that arise in construction situations include construction liens, contractor liens, mechanic liens, attorney liens, architect liens and other liens applicable in your state. Contractors, subcontractors, material suppliers, and laborers can place liens against property for the value of work or materials installed on that property. The filing requirements and statutes of limitation for these liens vary according to the law of each state. In some states, contractors and subcontractors must notify the property owner prior to filing a lien, but in other states such liens can be filed without any notification to the owner. Lien claimants who are contractors or subcontractors are protected under this legal doctrine because all their materials and labor are "buried" in the real estate, having become part of it. Unlike mortgage liens, however, the liens of these claimants cannot force a foreclosure.
A lien is the right to retain the lawful possession of the property of another until the owner fulfills a legal duty to the person holding the property, such as the payment of lawful charges for work done on the property. The right of lien generally arises by operation of law, but in some cases it is created by express contract. Liens that arise in construction situations include construction liens, contractor liens, mechanic liens, attorney liens, architect liens and other liens applicable in your state. By virtue of express statutes in most states, mechanics and material men or persons who furnish materials for the erection of houses or other buildings, are entitled to a lien or preference in the payment of debts out of the houses and buildings so erected and to the land, to a greater or lessor extent, on which they are erected. It is used to enforce payment in order to clear the title to the property, because property with a lien on it cannot be easily sold until the lien is satisfied (paid off). In some states, a claim must be filed in the office of the clerk of the court or a suit brought within a limited time. On the sale of the building these liens are to be paid pro rata. In some states no lien is created unless the work done or the goods furnished amount to a certain specified sum, while in others there is no limit to the amount.
The priority of liens on a construction project does not depend upon the time of completion of the particular job, but rather everything relates back to the first visible commencement of the work. This stipulation means the final work, such as painting, is equal in priority to the initial work of laying a cement foundation. Therefore, during the entire work of construction, the owner must obtain lien releases or waivers of lien from each subcontractor and material supplier. Without these waivers or releases the real estate is subject to liens of all the subcontractors, even if the general contractor, though paid in full, fails to pay the subcontractors. Lien claimants who are contractors or subcontractors are protected under this legal doctrine because all their materials and labor are "buried" in the real estate, having become part of it. Unlike mortgage liens, however, the liens of these claimants cannot force a foreclosure. People having a home built can require contractors and subcontractors to provide lien releases or waivers as part of a written project contract. The contract can mandate a lien release be issued before the contractor receives payment for services, in which case it is called a lien waiver. If payments are made to a general contractor in stages for work performed by subcontractors, the owner can obtain lien releases from the various subcontractors as their part of the project is completed. Sometimes, construction loan documents drafted by a bank may indicate that the bank will obtain lien releases, but the bank may do this solely for its own benefit. Therefore, the property owner's requiring lien releases should be clearly stated and independent of any agreement made by or with the bank.
Although the terms lien waiver and lien release seem to be interchangeable, a release demonstrates completion and payment, so as to prove any claim has been satisfied, while a waiver demonstrates a relinquishment of a known right. Waivers are typically obtained prior to commencement of any work, whereas releases are subsequently obtained. Waivers of lien must be in writing, give a sufficient description of the real estate, and be signed by the one with authority to file or claim a lien. No payment needs to be made in advance if the subcontractor agrees to release the land from the lien and rely only on the credit of the owner or general contractor for payment of the debt.
The filing requirements and statutes of limitation for these liens vary according to the law of each state. Liens can generally be removed by the payment of the amount owed. This payment can occur at any time up to and including the stage at which the closing documents for the sale of the property are signed. Liens can be discharged after a certain length of time. Therefore, if a property owner is in no hurry to sell the property, and the lien holder is not seeking to foreclose, it may make sense to do nothing and wait until the lien expires. If the lien is not renewed, the cloud on the title will no longer exist. If a person pays and satisfies a lien in order to have it discharged, a written, legally sufficient release or satisfaction must be obtained and recorded in the appropriate government office to clear title to the property.
In the case of a condominium building, the mechanics’ lien will attach to the owners of all units and common areas so long as the work was performed or the goods provided by virtue of a contract with or by consent of the owner. Typically, courts find that work ordered by a unit owner attaches to only that unit and relatedcommon areas. Work on common areas ordered by a condo association creates a blanket lien that attaches to each unit in its proportionate interest.
The following are TX statutes:
§ 53.022 PROP. Property to Which Lien Extends
(a) The lien extends to the house, building, fixtures, or
improvements, the land reclaimed from overflow, or the railroad and all
of its properties, and to each lot of land necessarily connected or
reclaimed.
(b) The lien does not extend to abutting sidewalks, streets, and
utilities that are public property.
(c) A lien against land in a city, town, or village extends to each lot
on which the house, building, or improvement is situated or on which the
labor was performed.
(d) A lien against land not in a city, town, or village extends to not
more than 50 acres on which the house, building, or improvement is
situated or on which the labor was performed.
§ 53.001 PROP. PROP. Definitions
In this chapter:
(1) "Contract price" means the cost to the owner for any part of
construction or repair performed under an original contract.
(2) "Improvement" includes:
(A) abutting sidewalks and streets and utilities in or on those
sidewalks and streets;
(B) clearing, grubbing, draining, or fencing of land;
(C) wells, cisterns, tanks, reservoirs, or artificial lakes or pools
made for supplying or storing water;
(D) pumps, siphons, and windmills or other machinery or apparatuses
used for raising water for stock, domestic use, or irrigation; and
(E) planting orchard trees, grubbing out orchards and replacing trees,
and pruning of orchard trees.
(3) "Labor" means labor used in the direct prosecution of the work.
(4) "Material" means all or part of:
(A) the material, machinery, fixtures, or tools incorporated into the
work, consumed in the direct prosecution of the work, or ordered and
delivered for incorporation or consumption;
(B) rent at a reasonable rate and actual running repairs at a
reasonable cost for construction equipment used or reasonably required
and delivered for use in the direct prosecution of the work at the site
of the construction or repair; or
(C) power, water, fuel, and lubricants consumed or ordered and
delivered for consumption in the direct prosecution of the work.
(5) "Mechanic's lien" means the lien provided by this chapter.
(6) "Original contract" means an agreement to which an owner is a party
either directly or by implication of law.
(7) "Original contractor" means a person contracting with an owner
either directly or through the owner's agent.
(8) "Residence" means a single-family house, duplex, triplex, or
quadruplex or a unit in a multiunit structure used for residential
purposes that is:
(A) owned by one or more adult persons; and
(B) used or intended to be used as a dwelling by one of the owners.
(9) "Residential construction contract" means a contract between an
owner and a contractor in which the contractor agrees to construct or
repair the owner's residence, including improvements appurtenant to the
residence.
(10) "Residential construction project" means a project for the
construction or repair of a new or existing residence, including
improvements appurtenant to the residence, as provided by a residential
construction contract.
(11) "Retainage" means an amount representing part of a contract
payment that is not required to be paid to the claimant within the month
following the month in which labor is performed, material is furnished,
or specially fabricated material is delivered. The term does not include
retainage under Subchapter E.
(12) "Specially fabricated material" means material fabricated for use
as a component of the construction or repair so as to be reasonably
unsuitable for use elsewhere.
(13) "Subcontractor" means a person who has furnished labor or
materials to fulfill an obligation to an original contractor or to a
subcontractor to perform all or part of the work required by an original
contract.
(14) "Work" means any part of construction or repair performed under an
original contract.
(15) "Completion" of an original contract means the actual completion
of the work, including any extras or change orders reasonably required or
contemplated under the original contract, other than warranty work or
replacement or repair of the work performed under the contract.
§ 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.
