Texas 2011 - 82nd Regular

Texas Senate Bill SB1332 Compare Versions

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1	1	By: Deuell S.B. No. 1332
2	2	(In the Senate - Filed March 9, 2011; March 22, 2011, read
3	3	first time and referred to Committee on Business and Commerce;
4	4	April 13, 2011, reported adversely, with favorable Committee
5	5	Substitute by the following vote: Yeas 9, Nays 0; April 13, 2011,
6	6	sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR S.B. No. 1332 By: Estes
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to the waiver and release of a mechanic's, contractor's, or
13	13	materialman's lien or payment bond claim.
14	14	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	15	SECTION 1. Subsection (c), Section 53.085, Property Code,
16	16	is amended to read as follows:
17	17	(c) The affidavit may include:
18	18	(1) a waiver or release of lien rights or payment bond
19	19	claims by the affiant that is conditioned on the receipt of actual
20	20	payment or collection of funds when payment is made by check or
21	21	draft, as provided by Subchapter L;
22	22	(2) a warranty or representation that certain bills or
23	23	classes of bills will be paid by the affiant from funds paid in
24	24	reliance on the affidavit; and
25	25	(3) an indemnification by the affiant for any loss or
26	26	expense resulting from false or incorrect information in the
27	27	affidavit.
28	28	SECTION 2. Chapter 53, Property Code, is amended by adding
29	29	Subchapter L to read as follows:
30	30	SUBCHAPTER L. WAIVER AND RELEASE OF LIEN OR PAYMENT BOND CLAIM
31	31	Sec. 53.281. WAIVER AND RELEASE OF LIEN OR PAYMENT BOND
32	32	CLAIM. (a) Any waiver and release of a lien or payment bond claim
33	33	under this chapter is unenforceable unless a waiver and release is
34	34	executed and delivered in accordance with this subchapter.
35	35	(b) A waiver and release is effective to release the owner,
36	36	the owner's property, the contractor, and the surety on a payment
37	37	bond from claims and liens only if:
38	38	(1) the waiver and release substantially complies with
39	39	one of the forms prescribed by this subchapter;
40	40	(2) the waiver and release is signed by the claimant or
41	41	the claimant's authorized agent and notarized; and
42	42	(3) in the case of a conditional release, evidence of
43	43	payment to the claimant exists.
44	44	Sec. 53.282. CONDITIONS FOR WAIVER, RELEASE, OR IMPAIRMENT
45	45	OF LIEN OR PAYMENT BOND CLAIM. (a) A statement purporting to
46	46	waive, release, or otherwise adversely affect a lien or payment
47	47	bond claim is not enforceable and does not create an estoppel or
48	48	impairment of a lien or payment bond claim unless:
49	49	(1) the statement is in writing and complies with this
50	50	subchapter;
51	51	(2) the claimant has actually received payment in good
52	52	and sufficient funds in full for the lien or payment bond claim; or
53	53	(3) the statement is:
54	54	(A) in a written original contract or subcontract
55	55	for the construction, remodel, or repair of a single-family house
56	56	or duplex; and
57	57	(B) made before labor or materials are provided
58	58	under the original contract or subcontract and a good faith dispute
59	59	exists regarding the quality of the labor or material provided by
60	60	the original contractor or subcontractor that has resulted in the
61	61	nonpayment of the original contractor or subcontractor.
62	62	(b) This section does not affect the enforceability of an
63	63	accord and satisfaction regarding a bona fide dispute or any
64	64	agreement made in settlement of an action pending in any court if
65	65	the accord and satisfaction or agreement made in settlement makes
66	66	specific reference to the lien or payment bond claim.
67	67	(c) The filing of a lien rendered unenforceable by a lien
68	68	waiver under Subsection (a)(3) does not violate Section 12.002,
69	69	Civil Practice and Remedies Code.
70	70	Sec. 53.283. UNCONDITIONAL WAIVER AND RELEASE: PAYMENT
71	71	REQUIRED. A person may not require a claimant or potential claimant
72	72	to execute an unconditional waiver and release for a progress
73	73	payment or final payment amount unless the claimant or potential
74	74	claimant received payment in that amount in good and sufficient
75	75	funds.
76	76	Sec. 53.284. FORMS FOR WAIVER AND RELEASE OF LIEN OR PAYMENT
77	77	BOND CLAIM. (a) A waiver and release given by a claimant or
78	78	potential claimant is unenforceable unless it substantially
79	79	complies with the applicable form described by Subsections (b)-(e).
80	80	(b) If a claimant or potential claimant is required to
81	81	execute a waiver and release in exchange for or to induce the
82	82	payment of a progress payment and is not paid in exchange for the
83	83	waiver and release or if a single payee check or joint payee check
84	84	is given in exchange for the waiver and release, the waiver and
85	85	release must read:
86	86	"CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
87	87	"Project ___________________
88	88	"Job No. ___________________
89	89	"On receipt by the signer of this document of a check from
90	90	________________ (maker of check) in the sum of $__________ payable
91	91	to _____________________ (payee or payees of check) and when the
92	92	check has been properly endorsed and has been paid by the bank on
93	93	which it is drawn, this document becomes effective to release any
94	94	mechanic's lien right, any right arising from a payment bond that
95	95	complies with a state or federal statute, any common law payment
96	96	bond right, any claim for payment, and any rights under any similar
97	97	ordinance, rule, or statute related to claim or payment rights for
98	98	persons in the signer's position that the signer has on the property
99	99	of ________________ (owner) located at ______________________
100	100	(location) to the following extent: ______________________ (job
101	101	description).
102	102	"This release covers a progress payment for all labor,
103	103	services, equipment, or materials furnished to the property or to
104	104	__________________ (person with whom signer contracted) as
105	105	indicated in the attached statement(s) or progress payment
106	106	request(s), except for unpaid retention, pending modifications and
107	107	changes, or other items furnished.
108	108	"Before any recipient of this document relies on this
109	109	document, the recipient should verify evidence of payment to the
110	110	signer.
111	111	"The signer warrants that the signer has already paid or will
112	112	use the funds received from this progress payment to promptly pay in
113	113	full all of the signer's laborers, subcontractors, materialmen, and
114	114	suppliers for all work, materials, equipment, or services provided
115	115	for or to the above referenced project in regard to the attached
116	116	statement(s) or progress payment request(s).
117	117	"Date ____________________________
118	118	"_________________________________ (Company name)
119	119	"By ______________________________ (Signature)
120	120	"_________________________________ (Title)"
121	121	(c) If a claimant or potential claimant is required to
122	122	execute an unconditional waiver and release to prove the receipt of
123	123	good and sufficient funds for a progress payment and the claimant or
124	124	potential claimant asserts in the waiver and release that the
125	125	claimant or potential claimant has been paid the progress payment,
126	126	the waiver and release must:
127	127	(1) contain a notice at the top of the document,
128	128	printed in bold type at least as large as the largest type used in
129	129	the document, but not smaller than 10-point type, that reads:
130	130	"NOTICE:
131	131	"This document waives rights unconditionally and states that
132	132	you have been paid for giving up those rights. This document may be
133	133	enforceable against you if you sign it, even if you have not been
134	134	paid. It is unlawful for a person to require you to sign this
135	135	document if you have not been paid the payment amount set forth
136	136	below. If you have not been paid, use a conditional release form.";
137	137	and
138	138	(2) below the notice, read:
139	139	"UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
140	140	"Project ___________________
141	141	"Job No. ___________________
142	142	"The signer of this document has been paid and has received a
143	143	progress payment in the sum of $___________ for all labor,
144	144	services, equipment, or materials furnished to the property or to
145	145	_____________________ (person with whom signer contracted) on the
146	146	property of _______________________ (owner) located at
147	147	______________________ (location) to the following extent:
148	148	______________________ (job description). The signer therefore
149	149	waives and releases any mechanic's lien right, any right arising
150	150	from a payment bond that complies with a state or federal statute,
151	151	any common law payment bond right, any claim for payment, and any
152	152	rights under any similar ordinance, rule, or statute related to
153	153	claim or payment rights for persons in the signer's position that
154	154	the signer has on the above referenced project to the following
155	155	extent:
156	156	"This release covers a progress payment for all labor,
157	157	services, equipment, or materials furnished to the property or to
158	158	__________________ (person with whom signer contracted) as
159	159	indicated in the attached statement(s) or progress payment
160	160	request(s), except for unpaid retention, pending modifications and
161	161	changes, or other items furnished.
162	162	"The signer warrants that the signer has already paid or will
163	163	use the funds received from this progress payment to promptly pay in
164	164	full all of the signer's laborers, subcontractors, materialmen, and
165	165	suppliers for all work, materials, equipment, or services provided
166	166	for or to the above referenced project in regard to the attached
167	167	statement(s) or progress payment request(s).
168	168	"Date ____________________________
169	169	"_________________________________ (Company name)
170	170	"By ______________________________ (Signature)
171	171	"_________________________________ (Title)"
172	172	(d) If a claimant or potential claimant is required to
173	173	execute a waiver and release in exchange for or to induce the
174	174	payment of a final payment and is not paid in good and sufficient
175	175	funds in exchange for the waiver and release or if a single payee
176	176	check or joint payee check is given in exchange for the waiver and
177	177	release, the waiver and release must read:
178	178	"CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
179	179	"Project ___________________
180	180	"Job No. ___________________
181	181	"On receipt by the signer of this document of a check from
182	182	________________ (maker of check) in the sum of $____________
183	183	payable to _____________________ (payee or payees of check) and
184	184	when the check has been properly endorsed and has been paid by the
185	185	bank on which it is drawn, this document becomes effective to
186	186	release any mechanic's lien right, any right arising from a payment
187	187	bond that complies with a state or federal statute, any common law
188	188	payment bond right, any claim for payment, and any rights under any
189	189	similar ordinance, rule, or statute related to claim or payment
190	190	rights for persons in the signer's position that the signer has on
191	191	the property of _____________________ (owner) located at
192	192	______________________ (location) to the following extent:
193	193	______________________ (job description).
194	194	"This release covers the final payment to the signer for all
195	195	labor, services, equipment, or materials furnished to the property
196	196	or to __________________ (person with whom signer contracted).
197	197	"Before any recipient of this document relies on this
198	198	document, the recipient should verify evidence of payment to the
199	199	signer.
200	200	"The signer warrants that the signer has already paid or will
201	201	use the funds received from this final payment to promptly pay in
202	202	full all of the signer's laborers, subcontractors, materialmen, and
203	203	suppliers for all work, materials, equipment, or services provided
204	204	for or to the above referenced project up to the date of this waiver
205	205	and release.
206	206	"Date ____________________________
207	207	"_________________________________ (Company name)
208	208	"By ______________________________ (Signature)
209	209	"_________________________________ (Title)"
210	210	(e) If a claimant or potential claimant is required to
211	211	execute an unconditional waiver and release to prove the receipt of
212	212	good and sufficient funds for a final payment and the claimant or
213	213	potential claimant asserts in the waiver and release that the
214	214	claimant or potential claimant has been paid the final payment, the
215	215	waiver and release must:
216	216	(1) contain a notice at the top of the document,
217	217	printed in bold type at least as large as the largest type used in
218	218	the document, but not smaller than 10-point type, that reads:
219	219	"NOTICE:
220	220	"This document waives rights unconditionally and states that
221	221	you have been paid for giving up those rights. This document may be
222	222	enforceable against you if you sign it, even if you have not been
223	223	paid. It is unlawful for a person to require you to sign this
224	224	document if you have not been paid the payment amount set forth
225	225	below. If you have not been paid, use a conditional release form.";
226	226	and
227	227	(2) below the notice, read:
228	228	"UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
229	229	"Project ___________________
230	230	"Job No. ___________________
231	231	"The signer of this document has been paid in full for all
232	232	labor, services, equipment, or materials furnished to the property
233	233	or to ___________________ (person with whom signer contracted) on
234	234	the property of ______________________ (owner) located at
235	235	______________________ (location) to the following extent:
236	236	______________________ (job description). The signer therefore
237	237	waives and releases any mechanic's lien right, any right arising
238	238	from a payment bond that complies with a state or federal statute,
239	239	any common law payment bond right, any claim for payment, and any
240	240	rights under any similar ordinance, rule, or statute related to
241	241	claim or payment rights for persons in the signer's position.
242	242	"The signer warrants that the signer has already paid or will
243	243	use the funds received from this final payment to promptly pay in
244	244	full all of the signer's laborers, subcontractors, materialmen, and
245	245	suppliers for all work, materials, equipment, or services provided
246	246	for or to the above referenced project up to the date of this waiver
247	247	and release.
248	248	"Date ____________________________
249	249	"_________________________________ (Company name)
250	250	"By ______________________________ (Signature)
251	251	"_________________________________ (Title)"
252	252	Sec. 53.285. ATTEMPTED COMPLIANCE. (a) A waiver or
253	253	release shall be construed to comply with this subchapter and is
254	254	enforceable in the same manner as a waiver and release under this
255	255	subchapter if the waiver or release:
256	256	(1) is furnished in attempted compliance with this
257	257	subchapter; or
258	258	(2) evidences by its terms intent to comply with this
259	259	subchapter.
260	260	(b) Any provision in any waiver or release furnished in
261	261	attempted compliance with this subchapter that expands or restricts
262	262	the rights or liabilities provided under this subchapter shall be
263	263	disregarded, and the provisions of this subchapter shall be read
264	264	into that waiver or release.
265	265	(c) This section expires August 31, 2012.
266	266	Sec. 53.286. PUBLIC POLICY. (a) Notwithstanding any other
267	267	law and except as provided by Section 53.282, any contract,
268	268	agreement, or understanding purporting to waive the right to file
269	269	or enforce any lien or claim created under this chapter is void as
270	270	against public policy.
271	271	(b) This subchapter does not apply to a written agreement to
272	272	subordinate, release, or satisfy all or part of a lien claimed after
273	273	a notice of lien has been filed.
274	274	SECTION 3. The changes in law made by this Act apply only to
275	275	a contract executed on or after September 1, 2011. A contract
276	276	executed before September 1, 2011, is covered by the law applicable
277	277	to the contract immediately before the effective date of this Act,
278	278	and the former law is continued in effect for that purpose.
279	279	SECTION 4. This Act takes effect September 1, 2011.
280	280	* * * * *