Texas 2011 - 82nd Regular

Texas House Bill HB1390 Compare Versions

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1	1	By: Deshotel, Bohac (Senate Sponsor - Estes) H.B. No. 1390
2	2	(In the Senate - Received from the House May 3, 2011;
3	3	May 4, 2011, read first time and referred to Committee on Business
4	4	and Commerce; May 10, 2011, reported favorably by the following
5	5	vote: Yeas 8, Nays 0; May 10, 2011, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to retainage under certain construction contracts.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 53.053(e), Property Code, is amended to
13	13	read as follows:
14	14	(e) A claim for retainage accrues on the earliest of the
15	15	last day of the month in which all work called for by the contract
16	16	between the owner and the original contractor has been completed,
17	17	finally settled, terminated, or abandoned.
18	18	SECTION 2. Section 53.057, Property Code, is amended by
19	19	amending Subsections (a), (b), (c), and (d) and adding Subsections
20	20	(b-1), (f), and (g) to read as follows:
21	21	(a) A claimant may give notice under this section instead of
22	22	or in addition to notice under Section 53.056 or 53.252 if the
23	23	claimant is to labor, furnish labor or materials, or specially
24	24	fabricate materials, or has labored, furnished labor or materials,
25	25	or specially fabricated materials, under an agreement with an
26	26	original contractor or a subcontractor providing for retainage.
27	27	(b) The claimant must give the owner or reputed owner notice
28	28	of contractual [the] retainage [agreement] not later than the
29	29	earlier of:
30	30	(1) the 30th [15th] day after the date the claimant's
31	31	agreement providing for retainage is completed, terminated, or
32	32	abandoned; or
33	33	(2) the 30th day after the date the original contract
34	34	is terminated or abandoned [of the second month following the
35	35	delivery of materials or the performance of labor by the claimant
36	36	that first occurs after the claimant has agreed to the contractual
37	37	retainage].
38	38	(b-1) If an [the] agreement for contractual retainage is
39	39	with a subcontractor, the claimant must also give the notice of
40	40	contractual retainage [within that time] to the original contractor
41	41	within the period prescribed by Subsection (b).
42	42	(c) The notice must generally state the existence of a
43	43	requirement for retainage and contain:
44	44	(1) the name and address of the claimant; and
45	45	(2) if the agreement is with a subcontractor, the name
46	46	and address of the subcontractor [the sum to be retained;
47	47	[(2) the due date or dates, if known; and
48	48	[(3) a general indication of the nature of the
49	49	agreement].
50	50	(d) The notice must be sent [by registered or certified
51	51	mail] to the last known business or residence address of the owner
52	52	or reputed owner or the original contractor, as applicable.
53	53	(f) A claimant has a lien on, and the owner is personally
54	54	liable to the claimant for, the retained funds under Subchapter E if
55	55	the claimant:
56	56	(1) gives notice in accordance with this section and:
57	57	(A) complies with Subchapter E; or
58	58	(B) files an affidavit claiming a lien not later
59	59	than the earliest of:
60	60	(i) the date required for filing an
61	61	affidavit under Section 53.052;
62	62	(ii) the 40th day after the date stated in
63	63	an affidavit of completion as the date of completion of the work
64	64	under the original contract, if the owner sent the claimant notice
65	65	of an affidavit of completion in the time and manner required;
66	66	(iii) the 40th day after the date of
67	67	termination or abandonment of the original contract, if the owner
68	68	sent the claimant a notice of such termination or abandonment in the
69	69	time and manner required; or
70	70	(iv) the 30th day after the date the owner
71	71	sent to the claimant to the claimant's address provided in the
72	72	notice for contractual retainage, as required under Subsection (c),
73	73	a written notice of demand for the claimant to file the affidavit
74	74	claiming a lien; and
75	75	(2) gives the notice of the filed affidavit as
76	76	required by Section 53.055.
77	77	(g) The written demand under Subsection (f)(1)(B)(iv):
78	78	(1) must contain the owner's name and address and a
79	79	description, legally sufficient for identification, of the real
80	80	property on which the improvement is located;
81	81	(2) must state that the claimant must file the lien
82	82	affidavit not later than the 30th day after the date the demand is
83	83	sent; and
84	84	(3) is effective only for the amount of contractual
85	85	retainage earned by the claimant as of the day the demand was sent.
86	86	SECTION 3. Section 53.103, Property Code, is amended to
87	87	read as follows:
88	88	Sec. 53.103. LIEN ON RETAINED FUNDS. A claimant has a lien
89	89	on the retained funds if the claimant:
90	90	(1) sends the notices required by this chapter in the
91	91	time and manner required; and
92	92	(2) except as allowed by Section 53.057(f), files an
93	93	affidavit claiming a lien not later than the 30th day after the
94	94	earliest [earlier] of the date:
95	95	(A) the work is completed;
96	96	(B) the original contract is terminated; or
97	97	(C) the original contractor abandons performance
98	98	under the original contract.
99	99	SECTION 4. Section 53.105(a), Property Code, is amended to
100	100	read as follows:
101	101	(a) If the owner fails or refuses to comply with this
102	102	subchapter, the claimants complying with Subchapter C or this
103	103	subchapter [chapter] have a lien, at least to the extent of the
104	104	amount that should have been retained from the original contract
105	105	under which they are claiming, against the house, building,
106	106	structure, fixture, or improvement and all of its properties and
107	107	against the lot or lots of land necessarily connected.
108	108	SECTION 5. Sections 53.106(a) and (d), Property Code, are
109	109	amended to read as follows:
110	110	(a) An owner may file with the county clerk of the county in
111	111	which the property is located an affidavit of completion. The
112	112	affidavit must contain:
113	113	(1) the name and address of the owner;
114	114	(2) the name and address of the original contractor;
115	115	(3) a description, legally sufficient for
116	116	identification, of the real property on which the improvements are
117	117	located;
118	118	(4) a description of the improvements furnished under
119	119	the original contract;
120	120	(5) a statement that the improvements under the
121	121	original contract have been completed and the date of completion;
122	122	and
123	123	(6) a conspicuous statement that a claimant may not
124	124	have a lien on retained funds unless the claimant files an [the]
125	125	affidavit claiming a lien not later than the 40th [30th] day after
126	126	the date the work under the original contract is completed [of
127	127	completion].
128	128	(d) Except as provided by this subsection, an affidavit
129	129	filed under this section on or before the 10th day after the date of
130	130	completion of the improvements is prima facie evidence of the date
131	131	the work under the original contract is completed for purposes of
132	132	this subchapter and Section 53.057. If the affidavit is filed after
133	133	the 10th day after the date of completion, the date of completion
134	134	for purposes of this subchapter and Section 53.057 is the date the
135	135	affidavit is filed. This subsection does not apply to a person to
136	136	whom the affidavit was not sent as required by this section.
137	137	SECTION 6. Sections 53.107(b) and (d), Property Code, are
138	138	amended to read as follows:
139	139	(b) The notice must contain:
140	140	(1) the name and address of the owner;
141	141	(2) the name and address of the original contractor;
142	142	(3) a description, legally sufficient for
143	143	identification, of the real property on which the improvements are
144	144	located;
145	145	(4) a general description of the improvements agreed
146	146	to be furnished under the original contract;
147	147	(5) a statement that the original contract has been
148	148	terminated or that performance under the contract has been
149	149	abandoned;
150	150	(6) the date of the termination or abandonment; and
151	151	(7) a conspicuous statement that a claimant may not
152	152	have a lien on the retained funds unless the claimant files an
153	153	affidavit claiming a lien not later than the 40th [30th] day after
154	154	the date of the termination or abandonment.
155	155	(d) If an owner is required to send a notice to a [A]
156	156	subcontractor under this section and fails to send the notice, the
157	157	subcontractor is not required to comply with Section 53.057 to
158	158	claim retainage and may claim a lien by filing a lien affidavit as
159	159	prescribed by Section 53.052 [who fails to file a lien affidavit in
160	160	the time prescribed by Section 53.103(2) has a lien to the extent
161	161	authorized under this subchapter if:
162	162	[(1) the subcontractor otherwise complies with this
163	163	chapter; and
164	164	[(2) the owner did not provide the subcontractor
165	165	notice as required by this section].
166	166	SECTION 7. Section 53.159, Property Code, is amended by
167	167	amending Subsections (a) and (b) and adding Subsection (g) to read
168	168	as follows:
169	169	(a) An owner, on written request, shall furnish the
170	170	following information within a reasonable time, but not later than
171	171	the 10th day after the date the request is received, to any person
172	172	furnishing labor or materials for the project:
173	173	(1) a description of the real property being improved
174	174	legally sufficient to identify it;
175	175	(2) whether there is a surety bond and if so, the name
176	176	and last known address of the surety and a copy of the bond; [and]
177	177	(3) whether there are any prior recorded liens or
178	178	security interests on the real property being improved and if so,
179	179	the name and address of the person having the lien or security
180	180	interest; and
181	181	(4) the date on which the original contract for the
182	182	project was executed.
183	183	(b) An original contractor, on written request by a person
184	184	who furnished work under the original contract, shall furnish to
185	185	the person the following information within a reasonable time, but
186	186	not later than the 10th day after the date the request is received:
187	187	(1) the name and last known address of the person to
188	188	whom the original contractor furnished labor or materials for the
189	189	construction project; [and]
190	190	(2) whether the original contractor has furnished or
191	191	has been furnished a payment bond for any of the work on the
192	192	construction project and if so, the name and last known address of
193	193	the surety and a copy of the bond; and
194	194	(3) the date on which the original contract for the
195	195	project was executed.
196	196	(g) A subcontractor who does not receive information
197	197	requested under Subsection (a)(4) within the period prescribed by
198	198	Subsection (a) is not required to comply with Section 53.057 and may
199	199	perfect a lien for retainage by filing a lien affidavit under
200	200	Section 53.052. This subsection expires September 1, 2013.
201	201	SECTION 8. Section 53.160(b), Property Code, is amended to
202	202	read as follows:
203	203	(b) The grounds for objecting to the validity or
204	204	enforceability of the claim or lien for purposes of the motion are
205	205	limited to the following:
206	206	(1) notice of claim was not furnished to the owner or
207	207	original contractor as required by Section 53.056, 53.057, 53.058,
208	208	53.252, or 53.253;
209	209	(2) an affidavit claiming a lien failed to comply with
210	210	Section 53.054 or was not filed as required by Section 53.052;
211	211	(3) notice of the filed affidavit was not furnished to
212	212	the owner or original contractor as required by Section 53.055;
213	213	(4) the deadlines for perfecting a lien claim for
214	214	retainage under this chapter have expired and the owner complied
215	215	with the requirements of Section 53.101 and paid the retainage and
216	216	all other funds owed to the original contractor before:
217	217	(A) the claimant perfected the lien claim; and
218	218	(B) the owner received a notice of the claim as
219	219	required by this chapter;
220	220	(5) all funds subject to the notice of a claim to the
221	221	owner and a notice regarding the [perfection of a claim against the
222	222	statutory] retainage have been deposited in the registry of the
223	223	court and the owner has no additional liability to the claimant;
224	224	(6) when the lien affidavit was filed on homestead
225	225	property:
226	226	(A) no contract was executed or filed as required
227	227	by Section 53.254;
228	228	(B) the affidavit claiming a lien failed to
229	229	contain the notice as required by Section 53.254; or
230	230	(C) the notice of the claim failed to include the
231	231	statement required by Section 53.254; and
232	232	(7) the claimant executed a valid and enforceable
233	233	waiver or release of the claim or lien claimed in the affidavit.
234	234	SECTION 9. Chapter 53, Property Code, as amended by this
235	235	Act, applies only to a lien claim for labor or materials furnished
236	236	under a subcontract where the original contract was entered into on
237	237	or after the effective date of this Act. A lien claim for labor or
238	238	materials furnished under a subcontract where the original contract
239	239	was entered into before the effective date of this Act is governed
240	240	by the law in effect immediately before the effective date of this
241	241	Act, and that law is continued in effect for that purpose.
242	242	SECTION 10. This Act takes effect September 1, 2011.
243	243	* * * * *