Texas 2011 - 82nd Regular

Texas House Bill HB1860 Compare Versions

The same version is selected twice. Please select two different versions to compare.

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	82R20756 NC-F
2	2	By: Deshotel H.B. No. 1860
3	3	Substitute the following for H.B. No. 1860:
4	4	By: Quintanilla C.S.H.B. No. 1860
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to waiver of priority for removables in certain
10	10	mechanic's, contractor's, or materialman's lien claims.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 53.001, Property Code, is amended by
13	13	adding Subdivision (7-a) to read as follows:
14	14	(7-a) "Removable" means material furnished that can be
15	15	removed without material injury to the land, a preexisting
16	16	improvement, or the material.
17	17	SECTION 2. Subchapter F, Chapter 53, Property Code, is
18	18	amended by adding Section 53.1231 to read as follows:
19	19	Sec. 53.1231. WAIVER OF PRIORITY FOR REMOVABLES IN A LIEN
20	20	CLAIM. (a) This section applies only to:
21	21	(1) a property owner who acquired title to the
22	22	property:
23	23	(A) by foreclosing the person's lien on the
24	24	property; or
25	25	(B) by purchasing the property:
26	26	(i) at a foreclosure sale; or
27	27	(ii) from a person who foreclosed the
28	28	person's lien on the property; or
29	29	(2) a title company seeking to insure title for the
30	30	sale of property by a person who acquired title to the property by
31	31	foreclosing the person's lien on the property to a third-party
32	32	buyer.
33	33	(b) A property owner or title company to whom this section
34	34	applies may send a written notice to a lien claimant who has filed
35	35	an affidavit claiming a mechanic's lien on the property requesting
36	36	the lien claimant to:
37	37	(1) confirm in writing whether the lien claim includes
38	38	a claim for a removable; and
39	39	(2) provide invoices or other supporting documents for
40	40	any material for which the lien claimant claims a priority
41	41	mechanic's lien for a removable under Section 53.123(a).
42	42	(c) The notice must be sent by personal delivery or
43	43	certified mail, return receipt requested, to the lien claimant's
44	44	address in the claimant's lien affidavit. If the claimant's address
45	45	is not provided in the lien affidavit, notice must be sent to the
46	46	lien claimant's last known address as determined through reasonable
47	47	efforts by the person sending the notice.
48	48	(d) The notice must contain:
49	49	(1) the requestor's name, the company name, if
50	50	applicable, and the domestic mailing address to which the lien
51	51	claimant may send a response; and
52	52	(2) the following statement conspicuously printed at
53	53	the top of the page in boldface type that is at least 10-point and
54	54	not smaller than the largest type used in the notice document:
55	55	NOTICE: "YOU MUST PROVIDE TO THE PERSON NAMED BELOW NOT LATER
56	56	THAN THE 30TH DAY AFTER THE DATE OF RECEIPT OF THIS NOTICE A WRITTEN
57	57	CONFIRMATION OF YOUR CLAIM OF A PRIORITY MECHANIC'S LIEN FOR A
58	58	REMOVABLE UNDER SECTION 53.123(a) OF THE TEXAS PROPERTY CODE,
59	59	INCLUDING ANY INVOICE OR OTHER SUPPORTING DOCUMENT FOR THE
60	60	REMOVABLE. FAILURE TO RESPOND TIMELY WILL RESULT IN THE WAIVER OF
61	61	THE PRIORITY OF YOUR LIEN FOR THE REMOVABLE."
62	62	(e) A property owner or title company may not send more than
63	63	one notice under this section to a lien claimant claiming a
64	64	mechanic's lien on a particular property.
65	65	(f) If a lien claimant fails to provide a written
66	66	confirmation of the mechanic's lien for a removable for which a
67	67	mechanic's lien is claimed, as requested by the notice, on or before
68	68	the 30th day after the date the notice is received by the lien
69	69	claimant or the date delivery of the notice is reasonably
70	70	attempted:
71	71	(1) the preference under Section 53.123(a) of the
72	72	claimant's mechanic's lien for the removable over any prior lien,
73	73	encumbrance, or mortgage on the property is waived; and
74	74	(2) the requestor may file an affidavit with the
75	75	county clerk of the county in which the property is located that
76	76	includes:
77	77	(A) a statement that the notice was sent in
78	78	compliance with this section and the lien claimant failed to
79	79	respond; and
80	80	(B) proof of delivery or, if delivery was
81	81	reasonably attempted and failed, a statement of the means of
82	82	attempted delivery and the reason for the failure of delivery.
83	83	(g) The sufficiency of the invoice or other supporting
84	84	document provided in response to the notice is not grounds for the
85	85	waiver under Subsection (f)(1) of the lien claimant's priority
86	86	under Section 53.123(a).
87	87	(h) An affidavit filed under Subsection (f)(2) is prima
88	88	facie evidence that the lien claimant waived any preference under
89	89	Section 53.123(a) of the claimant's mechanic's lien for a removable
90	90	over any prior lien, encumbrance, or mortgage on the property.
91	91	(i) An invoice or other supporting document provided by a
92	92	lien claimant in response to a notice under this section is
93	93	considered a general statement of the existence and general nature
94	94	of a removable and does not limit:
95	95	(1) the evidence a claimant may present at a trial or
96	96	other proceeding to establish the claimant's mechanic's lien for
97	97	the removable; or
98	98	(2) the specific quantity or nature of the removables
99	99	that may be actually proven at a trial or other proceeding.
100	100	SECTION 3. The change in law made by this Act applies only
101	101	to a lien relating to a contract entered into on or after the
102	102	effective date of this Act. A lien relating to a contract entered
103	103	into before the effective date of this Act is governed by the law
104	104	applicable to the lien immediately before the effective date of
105	105	this Act, and that law is continued in effect for that purpose.
106	106	SECTION 4. This Act takes effect January 1, 2012.