Am I entitled to a lien on the property even though the contract was oral?
Full Question:
Answer:
In some cases of people who formerly cohabited, courts have found a trust created in property of one person who cohabits with another, whereby the property is deemed held for the benefit of their domestic partner. When there is no formal trust agreement, a resulting trust may still be found under certain circumstances in order to enforce agreements regarding the property and income of domestic partners. If there is evidence that the parties intended to create a trust, but the formalities of a trust are lacking, the court may declare a resulting trust exists. The court may also declare that a constructive trust exists, which is essentially a legal fiction designed to avoid injustice and prevent giving an unfair advantage to one of the parties. This may be based on the contributions made by one partner to the property of the other. Each case is decided on its own facts, taking all circumstances into consideration.
The following are TX statutes:
§ 53.021. PERSONS ENTITLED TO LIEN.
(a) A person has a lien if:
(1) the person labors, specially fabricates material, or furnishes labor or materials for construction or repair in this state of:
(A) a house, building, or improvement;
(B) a levee or embankment to be erected for the reclamation of overflow land along a river or creek; or (C) a railroad; and
(2) the person labors, specially fabricates the material, or furnishes the labor or materials under or by virtue of a contract with the owner or the owner's agent, trustee, receiver, contractor, or subcontractor.
(b) A person who specially fabricates material has a lien even if the material is not delivered.
(c) An architect, engineer, or surveyor who prepares a plan or plat under or by virtue of a written contract with the owner or the owner's agent, trustee, or receiver in connection with the actual or proposed design, construction, or repair of improvements on real property or the location of the boundaries of real property has a lien on the property.
(d) A person who provides labor, plant material, or other supplies for the installation of landscaping for a house, building, or improvement, including the construction of a retention pond, retaining wall, berm, irrigation system, fountain, or other similar installation, under or by virtue of a written contract with the owner or the owner's agent, trustee, or receiver has a lien on the property.
(e) A person who performs labor as part of, or who furnishes labor or materials for, the demolition of a structure on real property under or by virtue of a written contract with the owner of the property or the owner's agent, trustee, receiver, contractor, or subcontractor has a lien on the property.
§ 53.052. 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.
Acts 1983, 68th Leg., p. 3538, ch. 576, § 1, eff. Jan. 1, 1984. Amended by Acts 1989, 71st Leg., ch. 1138, § 4, eff. Sept. 1, 1989; Acts 1997, 75th Leg., ch. 526, § 5, eff. Sept. 1, 1997.
§ 53.053. 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.
