82R20756 NC-F
By: Deshotel H.B. No. 1860
Substitute the following for H.B. No. 1860:
By: Quintanilla C.S.H.B. No. 1860
A BILL TO BE ENTITLED
AN ACT
relating to waiver of priority for removables in certain
mechanic's, contractor's, or materialman's lien claims.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 53.001, Property Code, is amended by
adding Subdivision (7-a) to read as follows:
(7-a) "Removable" means material furnished that can be
removed without material injury to the land, a preexisting
improvement, or the material.
SECTION 2. Subchapter F, Chapter 53, Property Code, is
amended by adding Section 53.1231 to read as follows:
Sec. 53.1231. WAIVER OF PRIORITY FOR REMOVABLES IN A LIEN
CLAIM. (a) This section applies only to:
(1) a property owner who acquired title to the
property:
(A) by foreclosing the person's lien on the
property; or
(B) by purchasing the property:
(i) at a foreclosure sale; or
(ii) from a person who foreclosed the
person's lien on the property; or
(2) a title company seeking to insure title for the
sale of property by a person who acquired title to the property by
foreclosing the person's lien on the property to a third-party
buyer.
(b) A property owner or title company to whom this section
applies may send a written notice to a lien claimant who has filed
an affidavit claiming a mechanic's lien on the property requesting
the lien claimant to:
(1) confirm in writing whether the lien claim includes
a claim for a removable; and
(2) provide invoices or other supporting documents for
any material for which the lien claimant claims a priority
mechanic's lien for a removable under Section 53.123(a).
(c) The notice must be sent by personal delivery or
certified mail, return receipt requested, to the lien claimant's
address in the claimant's lien affidavit. If the claimant's address
is not provided in the lien affidavit, notice must be sent to the
lien claimant's last known address as determined through reasonable
efforts by the person sending the notice.
(d) The notice must contain:
(1) the requestor's name, the company name, if
applicable, and the domestic mailing address to which the lien
claimant may send a response; and
(2) the following statement conspicuously printed at
the top of the page in boldface type that is at least 10-point and
not smaller than the largest type used in the notice document:
NOTICE: "YOU MUST PROVIDE TO THE PERSON NAMED BELOW NOT LATER
THAN THE 30TH DAY AFTER THE DATE OF RECEIPT OF THIS NOTICE A WRITTEN
CONFIRMATION OF YOUR CLAIM OF A PRIORITY MECHANIC'S LIEN FOR A
REMOVABLE UNDER SECTION 53.123(a) OF THE TEXAS PROPERTY CODE,
INCLUDING ANY INVOICE OR OTHER SUPPORTING DOCUMENT FOR THE
REMOVABLE. FAILURE TO RESPOND TIMELY WILL RESULT IN THE WAIVER OF
THE PRIORITY OF YOUR LIEN FOR THE REMOVABLE."
(e) A property owner or title company may not send more than
one notice under this section to a lien claimant claiming a
mechanic's lien on a particular property.
(f) If a lien claimant fails to provide a written
confirmation of the mechanic's lien for a removable for which a
mechanic's lien is claimed, as requested by the notice, on or before
the 30th day after the date the notice is received by the lien
claimant or the date delivery of the notice is reasonably
attempted:
(1) the preference under Section 53.123(a) of the
claimant's mechanic's lien for the removable over any prior lien,
encumbrance, or mortgage on the property is waived; and
(2) the requestor may file an affidavit with the
county clerk of the county in which the property is located that
includes:
(A) a statement that the notice was sent in
compliance with this section and the lien claimant failed to
respond; and
(B) proof of delivery or, if delivery was
reasonably attempted and failed, a statement of the means of
attempted delivery and the reason for the failure of delivery.
(g) The sufficiency of the invoice or other supporting
document provided in response to the notice is not grounds for the
waiver under Subsection (f)(1) of the lien claimant's priority
under Section 53.123(a).
(h) An affidavit filed under Subsection (f)(2) is prima
facie evidence that the lien claimant waived any preference under
Section 53.123(a) of the claimant's mechanic's lien for a removable
over any prior lien, encumbrance, or mortgage on the property.
(i) An invoice or other supporting document provided by a
lien claimant in response to a notice under this section is
considered a general statement of the existence and general nature
of a removable and does not limit:
(1) the evidence a claimant may present at a trial or
other proceeding to establish the claimant's mechanic's lien for
the removable; or
(2) the specific quantity or nature of the removables
that may be actually proven at a trial or other proceeding.
SECTION 3. The change in law made by this Act applies only
to a lien relating to a contract entered into on or after the
effective date of this Act. A lien relating to a contract entered
into before the effective date of this Act is governed by the law
applicable to the lien immediately before the effective date of
this Act, and that law is continued in effect for that purpose.
SECTION 4. This Act takes effect January 1, 2012.