Texas 2011 - 82nd Regular

Texas House Bill HB1456 Compare Versions

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1	1	By: Orr (Senate Sponsor - Deuell) H.B. No. 1456
2	2	(In the Senate - Received from the House May 6, 2011;
3	3	May 9, 2011, read first time and referred to Committee on Business
4	4	and Commerce; May 18, 2011, reported favorably by the following
5	5	vote: Yeas 8, Nays 0; May 18, 2011, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to the waiver and release of a mechanic's, contractor's, or
11	11	materialman's lien or payment bond claim and to the creation of a
12	12	mechanic's, contractor's, or materialman's lien for certain
13	13	landscaping.
14	14	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	15	SECTION 1. Section 53.021(d), Property Code, is amended to
16	16	read as follows:
17	17	(d) A person who provides labor, plant material, or other
18	18	supplies for the installation of landscaping for a house, building,
19	19	or improvement, including the construction of a retention pond,
20	20	retaining wall, berm, irrigation system, fountain, or other similar
21	21	installation, under or by virtue of a written contract with the
22	22	owner or the owner's agent, contractor, subcontractor, trustee, or
23	23	receiver has a lien on the property.
24	24	SECTION 2. Section 53.085(c), Property Code, is amended to
25	25	read as follows:
26	26	(c) The affidavit may include:
27	27	(1) a waiver or release of lien rights or payment bond
28	28	claims by the affiant that is conditioned on the receipt of actual
29	29	payment or collection of funds when payment is made by check or
30	30	draft, as provided by Subchapter L;
31	31	(2) a warranty or representation that certain bills or
32	32	classes of bills will be paid by the affiant from funds paid in
33	33	reliance on the affidavit; and
34	34	(3) an indemnification by the affiant for any loss or
35	35	expense resulting from false or incorrect information in the
36	36	affidavit.
37	37	SECTION 3. Chapter 53, Property Code, is amended by adding
38	38	Subchapter L to read as follows:
39	39	SUBCHAPTER L. WAIVER AND RELEASE OF LIEN OR PAYMENT BOND CLAIM
40	40	Sec. 53.281. WAIVER AND RELEASE OF LIEN OR PAYMENT BOND
41	41	CLAIM. (a) Any waiver and release of a lien or payment bond claim
42	42	under this chapter is unenforceable unless a waiver and release is
43	43	executed and delivered in accordance with this subchapter.
44	44	(b) A waiver and release is effective to release the owner,
45	45	the owner's property, the contractor, and the surety on a payment
46	46	bond from claims and liens only if:
47	47	(1) the waiver and release substantially complies with
48	48	one of the forms prescribed by Section 53.284;
49	49	(2) the waiver and release is signed by the claimant or
50	50	the claimant's authorized agent and notarized; and
51	51	(3) in the case of a conditional release, evidence of
52	52	payment to the claimant exists.
53	53	Sec. 53.282. CONDITIONS FOR WAIVER, RELEASE, OR IMPAIRMENT
54	54	OF LIEN OR PAYMENT BOND CLAIM. (a) A statement purporting to
55	55	waive, release, or otherwise adversely affect a lien or payment
56	56	bond claim is not enforceable and does not create an estoppel or
57	57	impairment of a lien or payment bond claim unless:
58	58	(1) the statement is in writing and substantially
59	59	complies with a form prescribed by Section 53.284;
60	60	(2) the claimant has actually received payment in good
61	61	and sufficient funds in full for the lien or payment bond claim; or
62	62	(3) the statement is:
63	63	(A) in a written original contract or subcontract
64	64	for the construction, remodel, or repair of a single-family house,
65	65	townhouse, or duplex or for land development related to a
66	66	single-family house, townhouse, or duplex; and
67	67	(B) made before labor or materials are provided
68	68	under the original contract or subcontract.
69	69	(b) The filing of a lien rendered unenforceable by a lien
70	70	waiver under Subsection (a)(3) does not violate Section 12.002,
71	71	Civil Practice and Remedies Code, unless:
72	72	(1) an owner or original contractor sends a written
73	73	explanation of the basis for nonpayment, evidence of the
74	74	contractual waiver of lien rights, and a notice of request for
75	75	release of the lien to the claimant at the claimant's address stated
76	76	in the lien affidavit; and
77	77	(2) the lien claimant does not release the filed lien
78	78	affidavit on or before the 14th day after the date the owner or the
79	79	original contractor sends the items required by Subdivision (1).
80	80	(c) Subsection (a)(3) does not apply to a person who
81	81	supplies only material, and not labor, for the construction,
82	82	remodel, or repair of a single-family house, townhouse, or duplex
83	83	or for land development related to a single-family house,
84	84	townhouse, or duplex.
85	85	Sec. 53.283. UNCONDITIONAL WAIVER AND RELEASE: PAYMENT
86	86	REQUIRED. A person may not require a claimant or potential claimant
87	87	to execute an unconditional waiver and release for a progress
88	88	payment or final payment amount unless the claimant or potential
89	89	claimant received payment in that amount in good and sufficient
90	90	funds.
91	91	Sec. 53.284. FORMS FOR WAIVER AND RELEASE OF LIEN OR PAYMENT
92	92	BOND CLAIM. (a) A waiver and release given by a claimant or
93	93	potential claimant is unenforceable unless it substantially
94	94	complies with the applicable form described by Subsections (b)-(e).
95	95	(b) If a claimant or potential claimant is required to
96	96	execute a waiver and release in exchange for or to induce the
97	97	payment of a progress payment and is not paid in exchange for the
98	98	waiver and release or if a single payee check or joint payee check
99	99	is given in exchange for the waiver and release, the waiver and
100	100	release must read:
101	101	"CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
102	102	"Project ___________________
103	103	"Job No. ___________________
104	104	"On receipt by the signer of this document of a check from
105	105	________________ (maker of check) in the sum of $__________ payable
106	106	to _____________________ (payee or payees of check) and when the
107	107	check has been properly endorsed and has been paid by the bank on
108	108	which it is drawn, this document becomes effective to release any
109	109	mechanic's lien right, any right arising from a payment bond that
110	110	complies with a state or federal statute, any common law payment
111	111	bond right, any claim for payment, and any rights under any similar
112	112	ordinance, rule, or statute related to claim or payment rights for
113	113	persons in the signer's position that the signer has on the
114	114	property of ________________ (owner) located at
115	115	______________________ (location) to the following extent:
116	116	______________________ (job description).
117	117	"This release covers a progress payment for all labor,
118	118	services, equipment, or materials furnished to the property or to
119	119	__________________ (person with whom signer contracted) as
120	120	indicated in the attached statement(s) or progress payment
121	121	request(s), except for unpaid retention, pending modifications and
122	122	changes, or other items furnished.
123	123	"Before any recipient of this document relies on this
124	124	document, the recipient should verify evidence of payment to the
125	125	signer.
126	126	"The signer warrants that the signer has already paid or will
127	127	use the funds received from this progress payment to promptly pay in
128	128	full all of the signer's laborers, subcontractors, materialmen, and
129	129	suppliers for all work, materials, equipment, or services provided
130	130	for or to the above referenced project in regard to the attached
131	131	statement(s) or progress payment request(s).
132	132	"Date ____________________________
133	133	"_________________________________ (Company name)
134	134	"By ______________________________ (Signature)
135	135	"_________________________________ (Title)"
136	136	(c) If a claimant or potential claimant is required to
137	137	execute an unconditional waiver and release to prove the receipt of
138	138	good and sufficient funds for a progress payment and the claimant or
139	139	potential claimant asserts in the waiver and release that the
140	140	claimant or potential claimant has been paid the progress payment,
141	141	the waiver and release must:
142	142	(1) contain a notice at the top of the document,
143	143	printed in bold type at least as large as the largest type used in
144	144	the document, but not smaller than 10-point type, that reads:
145	145	"NOTICE:
146	146	"This document waives rights unconditionally and states that
147	147	you have been paid for giving up those rights. It is prohibited for
148	148	a person to require you to sign this document if you have not been
149	149	paid the payment amount set forth below. If you have not been paid,
150	150	use a conditional release form."; and
151	151	(2) below the notice, read:
152	152	"UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
153	153	"Project ___________________
154	154	"Job No. ___________________
155	155	"The signer of this document has been paid and has received a
156	156	progress payment in the sum of $___________ for all labor,
157	157	services, equipment, or materials furnished to the property or to
158	158	_____________________ (person with whom signer contracted) on the
159	159	property of _______________________ (owner) located at
160	160	______________________ (location) to the following extent:
161	161	______________________ (job description). The signer therefore
162	162	waives and releases any mechanic's lien right, any right arising
163	163	from a payment bond that complies with a state or federal statute,
164	164	any common law payment bond right, any claim for payment, and any
165	165	rights under any similar ordinance, rule, or statute related to
166	166	claim or payment rights for persons in the signer's position that
167	167	the signer has on the above referenced project to the following
168	168	extent:
169	169	"This release covers a progress payment for all labor,
170	170	services, equipment, or materials furnished to the property or to
171	171	__________________ (person with whom signer contracted) as
172	172	indicated in the attached statement(s) or progress payment
173	173	request(s), except for unpaid retention, pending modifications and
174	174	changes, or other items furnished.
175	175	"The signer warrants that the signer has already paid or will
176	176	use the funds received from this progress payment to promptly pay in
177	177	full all of the signer's laborers, subcontractors, materialmen, and
178	178	suppliers for all work, materials, equipment, or services provided
179	179	for or to the above referenced project in regard to the attached
180	180	statement(s) or progress payment request(s).
181	181	"Date ____________________________
182	182	"_________________________________ (Company name)
183	183	"By ______________________________ (Signature)
184	184	"_________________________________ (Title)"
185	185	(d) If a claimant or potential claimant is required to
186	186	execute a waiver and release in exchange for or to induce the
187	187	payment of a final payment and is not paid in good and sufficient
188	188	funds in exchange for the waiver and release or if a single payee
189	189	check or joint payee check is given in exchange for the waiver and
190	190	release, the waiver and release must read:
191	191	"CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
192	192	"Project ___________________
193	193	"Job No. ___________________
194	194	"On receipt by the signer of this document of a check from
195	195	________________ (maker of check) in the sum of $____________
196	196	payable to _____________________ (payee or payees of check) and
197	197	when the check has been properly endorsed and has been paid by the
198	198	bank on which it is drawn, this document becomes effective to
199	199	release any mechanic's lien right, any right arising from a payment
200	200	bond that complies with a state or federal statute, any common law
201	201	payment bond right, any claim for payment, and any rights under any
202	202	similar ordinance, rule, or statute related to claim or payment
203	203	rights for persons in the signer's position that the signer has on
204	204	the property of _____________________ (owner) located at
205	205	______________________ (location) to the following extent:
206	206	______________________ (job description).
207	207	"This release covers the final payment to the signer for all
208	208	labor, services, equipment, or materials furnished to the property
209	209	or to __________________ (person with whom signer contracted).
210	210	"Before any recipient of this document relies on this
211	211	document, the recipient should verify evidence of payment to the
212	212	signer.
213	213	"The signer warrants that the signer has already paid or will
214	214	use the funds received from this final payment to promptly pay in
215	215	full all of the signer's laborers, subcontractors, materialmen, and
216	216	suppliers for all work, materials, equipment, or services provided
217	217	for or to the above referenced project up to the date of this waiver
218	218	and release.
219	219	"Date ____________________________
220	220	"_________________________________ (Company name)
221	221	"By ______________________________ (Signature)
222	222	"_________________________________ (Title)"
223	223	(e) If a claimant or potential claimant is required to
224	224	execute an unconditional waiver and release to prove the receipt of
225	225	good and sufficient funds for a final payment and the claimant or
226	226	potential claimant asserts in the waiver and release that the
227	227	claimant or potential claimant has been paid the final payment, the
228	228	waiver and release must:
229	229	(1) contain a notice at the top of the document,
230	230	printed in bold type at least as large as the largest type used in
231	231	the document, but not smaller than 10-point type, that reads:
232	232	"NOTICE:
233	233	"This document waives rights unconditionally and states that
234	234	you have been paid for giving up those rights. It is prohibited for
235	235	a person to require you to sign this document if you have not been
236	236	paid the payment amount set forth below. If you have not been paid,
237	237	use a conditional release form."; and
238	238	(2) below the notice, read:
239	239	"UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
240	240	"Project ___________________
241	241	"Job No. ___________________
242	242	"The signer of this document has been paid in full for all
243	243	labor, services, equipment, or materials furnished to the property
244	244	or to ___________________ (person with whom signer contracted) on
245	245	the property of ______________________ (owner) located at
246	246	______________________ (location) to the following extent:
247	247	______________________ (job description). The signer therefore
248	248	waives and releases any mechanic's lien right, any right arising
249	249	from a payment bond that complies with a state or federal statute,
250	250	any common law payment bond right, any claim for payment, and any
251	251	rights under any similar ordinance, rule, or statute related to
252	252	claim or payment rights for persons in the signer's position.
253	253	"The signer warrants that the signer has already paid or will
254	254	use the funds received from this final payment to promptly pay in
255	255	full all of the signer's laborers, subcontractors, materialmen, and
256	256	suppliers for all work, materials, equipment, or services provided
257	257	for or to the above referenced project up to the date of this waiver
258	258	and release.
259	259	"Date ____________________________
260	260	"_________________________________ (Company name)
261	261	"By ______________________________ (Signature)
262	262	"_________________________________ (Title)"
263	263	Sec. 53.285. ATTEMPTED COMPLIANCE. (a) A waiver or
264	264	release shall be construed to comply with this subchapter and is
265	265	enforceable in the same manner as a waiver and release under this
266	266	subchapter if the waiver or release:
267	267	(1) is furnished in attempted compliance with this
268	268	subchapter; or
269	269	(2) evidences by its terms intent to comply with this
270	270	subchapter.
271	271	(b) Any provision in any waiver or release furnished in
272	272	attempted compliance with this subchapter that expands or restricts
273	273	the rights or liabilities provided under this subchapter shall be
274	274	disregarded and the provisions of this subchapter shall be read
275	275	into that waiver or release.
276	276	(c) This section expires August 31, 2012.
277	277	Sec. 53.286. PUBLIC POLICY. Notwithstanding any other law
278	278	and except as provided by Section 53.282, any contract, agreement,
279	279	or understanding purporting to waive the right to file or enforce
280	280	any lien or claim created under this chapter is void as against
281	281	public policy.
282	282	Sec. 53.287. CERTAIN AGREEMENTS EXEMPT. This subchapter
283	283	does not apply to a written agreement to subordinate, release,
284	284	waive, or satisfy all or part of a lien or bond claim in:
285	285	(1) an accord and satisfaction of an identified
286	286	dispute;
287	287	(2) an agreement concerning an action pending in any
288	288	court or arbitration proceeding; or
289	289	(3) an agreement that is executed after an affidavit
290	290	claiming the lien has been filed or the bond claim has been made.
291	291	SECTION 4. Section 53.021(d), Property Code, as amended by
292	292	this Act, applies only to a lien claim arising under or by virtue of
293	293	a contract entered into on or after the effective date of this Act.
294	294	A lien claim arising under or by virtue of a contract entered into
295	295	before the effective date of this Act is governed by the law
296	296	applicable to the claim immediately before the effective date of
297	297	this Act, and that law is continued in effect for that purpose.
298	298	SECTION 5. Section 53.085(c), Property Code, as amended by
299	299	this Act, and Subchapter L, Chapter 53, Property Code, as added by
300	300	this Act, apply only to a contract executed on or after January 1,
301	301	2012. A contract executed before January 1, 2012, is covered by the
302	302	law applicable to the contract immediately before the effective
303	303	date of this Act, and the former law is continued in effect for that
304	304	purpose.
305	305	SECTION 6. This Act takes effect January 1, 2012.
306	306	* * * * *