By: Orr (Senate Sponsor - Deuell) H.B. No. 1456
(In the Senate - Received from the House May 6, 2011;
May 9, 2011, read first time and referred to Committee on Business
and Commerce; May 18, 2011, reported favorably by the following
vote: Yeas 8, Nays 0; May 18, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the waiver and release of a mechanic's, contractor's, or
materialman's lien or payment bond claim and to the creation of a
mechanic's, contractor's, or materialman's lien for certain
landscaping.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 53.021(d), Property Code, is amended to
read as follows:
(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, contractor, subcontractor, trustee, or
receiver has a lien on the property.
SECTION 2. Section 53.085(c), Property Code, is amended to
read as follows:
(c) The affidavit may include:
(1) a waiver or release of lien rights or payment bond
claims by the affiant that is conditioned on the receipt of actual
payment or collection of funds when payment is made by check or
draft, as provided by Subchapter L;
(2) a warranty or representation that certain bills or
classes of bills will be paid by the affiant from funds paid in
reliance on the affidavit; and
(3) an indemnification by the affiant for any loss or
expense resulting from false or incorrect information in the
affidavit.
SECTION 3. Chapter 53, Property Code, is amended by adding
Subchapter L to read as follows:
SUBCHAPTER L. WAIVER AND RELEASE OF LIEN OR PAYMENT BOND CLAIM
Sec. 53.281. WAIVER AND RELEASE OF LIEN OR PAYMENT BOND
CLAIM. (a) Any waiver and release of a lien or payment bond claim
under this chapter is unenforceable unless a waiver and release is
executed and delivered in accordance with this subchapter.
(b) A waiver and release is effective to release the owner,
the owner's property, the contractor, and the surety on a payment
bond from claims and liens only if:
(1) the waiver and release substantially complies with
one of the forms prescribed by Section 53.284;
(2) the waiver and release is signed by the claimant or
the claimant's authorized agent and notarized; and
(3) in the case of a conditional release, evidence of
payment to the claimant exists.
Sec. 53.282. CONDITIONS FOR WAIVER, RELEASE, OR IMPAIRMENT
OF LIEN OR PAYMENT BOND CLAIM. (a) A statement purporting to
waive, release, or otherwise adversely affect a lien or payment
bond claim is not enforceable and does not create an estoppel or
impairment of a lien or payment bond claim unless:
(1) the statement is in writing and substantially
complies with a form prescribed by Section 53.284;
(2) the claimant has actually received payment in good
and sufficient funds in full for the lien or payment bond claim; or
(3) the statement is:
(A) in a written original contract or subcontract
for the construction, remodel, or repair of a single-family house,
townhouse, or duplex or for land development related to a
single-family house, townhouse, or duplex; and
(B) made before labor or materials are provided
under the original contract or subcontract.
(b) The filing of a lien rendered unenforceable by a lien
waiver under Subsection (a)(3) does not violate Section 12.002,
Civil Practice and Remedies Code, unless:
(1) an owner or original contractor sends a written
explanation of the basis for nonpayment, evidence of the
contractual waiver of lien rights, and a notice of request for
release of the lien to the claimant at the claimant's address stated
in the lien affidavit; and
(2) the lien claimant does not release the filed lien
affidavit on or before the 14th day after the date the owner or the
original contractor sends the items required by Subdivision (1).
(c) Subsection (a)(3) does not apply to a person who
supplies only material, and not labor, for the construction,
remodel, or repair of a single-family house, townhouse, or duplex
or for land development related to a single-family house,
townhouse, or duplex.
Sec. 53.283. UNCONDITIONAL WAIVER AND RELEASE: PAYMENT
REQUIRED. A person may not require a claimant or potential claimant
to execute an unconditional waiver and release for a progress
payment or final payment amount unless the claimant or potential
claimant received payment in that amount in good and sufficient
funds.
Sec. 53.284. FORMS FOR WAIVER AND RELEASE OF LIEN OR PAYMENT
BOND CLAIM. (a) A waiver and release given by a claimant or
potential claimant is unenforceable unless it substantially
complies with the applicable form described by Subsections (b)-(e).
(b) If a claimant or potential claimant is required to
execute a waiver and release in exchange for or to induce the
payment of a progress payment and is not paid in exchange for the
waiver and release or if a single payee check or joint payee check
is given in exchange for the waiver and release, the waiver and
release must read:
"CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
"Project ___________________
"Job No. ___________________
"On receipt by the signer of this document of a check from
________________ (maker of check) in the sum of $__________ payable
to _____________________ (payee or payees of check) and when the
check has been properly endorsed and has been paid by the bank on
which it is drawn, this document becomes effective to release any
mechanic's lien right, any right arising from a payment bond that
complies with a state or federal statute, any common law payment
bond right, any claim for payment, and any rights under any similar
ordinance, rule, or statute related to claim or payment rights for
persons in the signer's position that the signer has on the
property of ________________ (owner) located at
______________________ (location) to the following extent:
______________________ (job description).
"This release covers a progress payment for all labor,
services, equipment, or materials furnished to the property or to
__________________ (person with whom signer contracted) as
indicated in the attached statement(s) or progress payment
request(s), except for unpaid retention, pending modifications and
changes, or other items furnished.
"Before any recipient of this document relies on this
document, the recipient should verify evidence of payment to the
signer.
"The signer warrants that the signer has already paid or will
use the funds received from this progress payment to promptly pay in
full all of the signer's laborers, subcontractors, materialmen, and
suppliers for all work, materials, equipment, or services provided
for or to the above referenced project in regard to the attached
statement(s) or progress payment request(s).
"Date ____________________________
"_________________________________ (Company name)
"By ______________________________ (Signature)
"_________________________________ (Title)"
(c) If a claimant or potential claimant is required to
execute an unconditional waiver and release to prove the receipt of
good and sufficient funds for a progress payment and the claimant or
potential claimant asserts in the waiver and release that the
claimant or potential claimant has been paid the progress payment,
the waiver and release must:
(1) contain a notice at the top of the document,
printed in bold type at least as large as the largest type used in
the document, but not smaller than 10-point type, that reads:
"NOTICE:
"This document waives rights unconditionally and states that
you have been paid for giving up those rights. It is prohibited for
a person to require you to sign this document if you have not been
paid the payment amount set forth below. If you have not been paid,
use a conditional release form."; and
(2) below the notice, read:
"UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
"Project ___________________
"Job No. ___________________
"The signer of this document has been paid and has received a
progress payment in the sum of $___________ for all labor,
services, equipment, or materials furnished to the property or to
_____________________ (person with whom signer contracted) on the
property of _______________________ (owner) located at
______________________ (location) to the following extent:
______________________ (job description). The signer therefore
waives and releases any mechanic's lien right, any right arising
from a payment bond that complies with a state or federal statute,
any common law payment bond right, any claim for payment, and any
rights under any similar ordinance, rule, or statute related to
claim or payment rights for persons in the signer's position that
the signer has on the above referenced project to the following
extent:
"This release covers a progress payment for all labor,
services, equipment, or materials furnished to the property or to
__________________ (person with whom signer contracted) as
indicated in the attached statement(s) or progress payment
request(s), except for unpaid retention, pending modifications and
changes, or other items furnished.
"The signer warrants that the signer has already paid or will
use the funds received from this progress payment to promptly pay in
full all of the signer's laborers, subcontractors, materialmen, and
suppliers for all work, materials, equipment, or services provided
for or to the above referenced project in regard to the attached
statement(s) or progress payment request(s).
"Date ____________________________
"_________________________________ (Company name)
"By ______________________________ (Signature)
"_________________________________ (Title)"
(d) If a claimant or potential claimant is required to
execute a waiver and release in exchange for or to induce the
payment of a final payment and is not paid in good and sufficient
funds in exchange for the waiver and release or if a single payee
check or joint payee check is given in exchange for the waiver and
release, the waiver and release must read:
"CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
"Project ___________________
"Job No. ___________________
"On receipt by the signer of this document of a check from
________________ (maker of check) in the sum of $____________
payable to _____________________ (payee or payees of check) and
when the check has been properly endorsed and has been paid by the
bank on which it is drawn, this document becomes effective to
release any mechanic's lien right, any right arising from a payment
bond that complies with a state or federal statute, any common law
payment bond right, any claim for payment, and any rights under any
similar ordinance, rule, or statute related to claim or payment
rights for persons in the signer's position that the signer has on
the property of _____________________ (owner) located at
______________________ (location) to the following extent:
______________________ (job description).
"This release covers the final payment to the signer for all
labor, services, equipment, or materials furnished to the property
or to __________________ (person with whom signer contracted).
"Before any recipient of this document relies on this
document, the recipient should verify evidence of payment to the
signer.
"The signer warrants that the signer has already paid or will
use the funds received from this final payment to promptly pay in
full all of the signer's laborers, subcontractors, materialmen, and
suppliers for all work, materials, equipment, or services provided
for or to the above referenced project up to the date of this waiver
and release.
"Date ____________________________
"_________________________________ (Company name)
"By ______________________________ (Signature)
"_________________________________ (Title)"
(e) If a claimant or potential claimant is required to
execute an unconditional waiver and release to prove the receipt of
good and sufficient funds for a final payment and the claimant or
potential claimant asserts in the waiver and release that the
claimant or potential claimant has been paid the final payment, the
waiver and release must:
(1) contain a notice at the top of the document,
printed in bold type at least as large as the largest type used in
the document, but not smaller than 10-point type, that reads:
"NOTICE:
"This document waives rights unconditionally and states that
you have been paid for giving up those rights. It is prohibited for
a person to require you to sign this document if you have not been
paid the payment amount set forth below. If you have not been paid,
use a conditional release form."; and
(2) below the notice, read:
"UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
"Project ___________________
"Job No. ___________________
"The signer of this document has been paid in full for all
labor, services, equipment, or materials furnished to the property
or to ___________________ (person with whom signer contracted) on
the property of ______________________ (owner) located at
______________________ (location) to the following extent:
______________________ (job description). The signer therefore
waives and releases any mechanic's lien right, any right arising
from a payment bond that complies with a state or federal statute,
any common law payment bond right, any claim for payment, and any
rights under any similar ordinance, rule, or statute related to
claim or payment rights for persons in the signer's position.
"The signer warrants that the signer has already paid or will
use the funds received from this final payment to promptly pay in
full all of the signer's laborers, subcontractors, materialmen, and
suppliers for all work, materials, equipment, or services provided
for or to the above referenced project up to the date of this waiver
and release.
"Date ____________________________
"_________________________________ (Company name)
"By ______________________________ (Signature)
"_________________________________ (Title)"
Sec. 53.285. ATTEMPTED COMPLIANCE. (a) A waiver or
release shall be construed to comply with this subchapter and is
enforceable in the same manner as a waiver and release under this
subchapter if the waiver or release:
(1) is furnished in attempted compliance with this
subchapter; or
(2) evidences by its terms intent to comply with this
subchapter.
(b) Any provision in any waiver or release furnished in
attempted compliance with this subchapter that expands or restricts
the rights or liabilities provided under this subchapter shall be
disregarded and the provisions of this subchapter shall be read
into that waiver or release.
(c) This section expires August 31, 2012.
Sec. 53.286. PUBLIC POLICY. Notwithstanding any other law
and except as provided by Section 53.282, any contract, agreement,
or understanding purporting to waive the right to file or enforce
any lien or claim created under this chapter is void as against
public policy.
Sec. 53.287. CERTAIN AGREEMENTS EXEMPT. This subchapter
does not apply to a written agreement to subordinate, release,
waive, or satisfy all or part of a lien or bond claim in:
(1) an accord and satisfaction of an identified
dispute;
(2) an agreement concerning an action pending in any
court or arbitration proceeding; or
(3) an agreement that is executed after an affidavit
claiming the lien has been filed or the bond claim has been made.
SECTION 4. Section 53.021(d), Property Code, as amended by
this Act, applies only to a lien claim arising under or by virtue of
a contract entered into on or after the effective date of this Act.
A lien claim arising under or by virtue of a contract entered into
before the effective date of this Act is governed by the law
applicable to the claim immediately before the effective date of
this Act, and that law is continued in effect for that purpose.
SECTION 5. Section 53.085(c), Property Code, as amended by
this Act, and Subchapter L, Chapter 53, Property Code, as added by
this Act, apply only to a contract executed on or after January 1,
2012. A contract executed before January 1, 2012, is covered by the
law applicable to the contract immediately before the effective
date of this Act, and the former law is continued in effect for that
purpose.
SECTION 6. This Act takes effect January 1, 2012.
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