By: Burrows H.B. No. 2237
A BILL TO BE ENTITLED
AN ACT
relating to mechanic's, contractor's, or materialman's liens.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 3503.051(3), Insurance Code, is amended
to read as follows:
(3) "Notice of claim" means a written notification by
a claimant who makes a claim for payment from the surety company.
The term does not include a routine statutory notice required by
Section 53.056(b) or 53.057[, 53.058, 53.252(b), or 53.253,
Property Code,] or Section 2253.047, Government Code.
SECTION 2. Section 53.001, Property Code, is amended by
amending Subdivisions (2), (3), (4), (8) and (9) to read as follows:
(2) "Improvement" includes:
(A) a house, building, structure, parking
structure, appurtenance, pool, utility, railroad, well, storage
facility, abutting sidewalks and streets and utilities in or on
those sidewalks and streets, land reclaimed from overflow, and
other fixture or modification to real property;
(B) clearing, grubbing, draining, or fencing of
land;
(C) that work described in section
53.021(d)[wells, cisterns, tanks, reservoirs, or artificial lakes
or pools made for supplying or storing water;] and
(D) designs, drawings, plans, plats, surveys,
and specifications provided by licensed architects, engineers, or
surveyors. [pumps, siphons, and windmills or other machinery or
apparatuses used for raising water for stock, domestic use, or
irrigation; and
(E) planting orchard trees, grubbing out
orchards and replacing trees, and pruning of orchard trees.]
(3) "Labor" means:
(A) labor used in the direct performance
[prosecution] of the work or[.]
(B) professional services used in the direct
preparation for the work of a design, drawing, plan, plat, survey,
or specification.
(4) "Material" means all or part of:
(A) the material, machinery, fixtures, or tools:
(i) incorporated into the work;[,]
(ii) used [consumed] in the direct
performance [prosecution] of the work;[, or]
(iii) specially fabricated for an
improvement; or
(iv) ordered and delivered for
incorporation or use [consumption];
(B) rent at a reasonable rate and actual running
repairs at a reasonable cost for construction equipment used or
reasonably required and delivered for use in the direct
[prosecution] performance of the work at the site of the
construction or repair; or
(C) power, water, fuel, and lubricants consumed
or ordered and delivered for consumption in the direct
[prosecution] performance of the work.
(5) "Mechanic's lien" means the lien provided by this
chapter.
(6) "Original contract" means an agreement to which an
owner is a party either directly or by implication of law.
(7) "Original contractor" means a person contracting
with an owner either directly or through the owner's agent.
(8) "Purported original contractor" means an original
contractor that either (1) can effectively control the owner or is
effectively controlled by the owner through common ownership of
voting stock or ownership interests, interlocking directorships,
common management, or otherwise or (2) was engaged by the owner for
the construction or repair of improvements without a good faith
intention of the parties that the purported original contractor was
to perform under the contract. In this definition, "owner" does not
include a person who has or claims a security interest only.
([8]9) "Residence" means the real property and
improvements for a single-family house, duplex, triplex, or
quadruplex or a unit in a multiunit structure used for residential
purposes in which title to the individual units is transferred to
the owners under a condominium or cooperative system that is:
(A) owned by one or more adult persons; and
(B) used or intended to be used as a dwelling by
one of the owners.
([9]10) "Residential construction contract" means a
contract between an owner and a contractor in which the contractor
agrees to construct or repair the owner's residence, including
improvements appurtenant to the residence.
(11[10]) "Residential construction project" means a
project for the construction or repair of a new or existing
residence, including improvements appurtenant to the residence, as
provided by a residential construction contract.
(12[11]) "Retainage" means an amount representing
part of a contract payment that is not required to be paid to the
claimant within the month following the month in which labor is
performed, material is furnished, or specially fabricated material
is delivered. [The term does not include retainage under
Subchapter E.]
(13[12]) "Specially fabricated material" means
material fabricated for use as a component of the construction or
repair so as to be reasonably unsuitable for use elsewhere.
(14[13]) "Subcontractor" means a person who has
furnished labor or materials to fulfill an obligation to an
original contractor or to a subcontractor to perform all or part of
the work required by an original contract.
(15[14]) "Work" means any part of construction or
repair of an improvement performed under an original contract.
(16[15]) "Completion" of an original contract means
the actual completion of the work, including any extras or change
orders reasonably required or contemplated under the original
contract, other than warranty work or replacement or repair of the
work performed under the contract.
SECTION 3. Section 53.003(a), (b) and (d), Property Code,
are amended to read as follows:
[(a) This section applies to notices required by
Subchapters B through G and K.]
([b]a) Any notice or other written communication required
by this chapter may be delivered (i) in person to the party entitled
to the notice or to that party's agent or (ii) via certified mail.[,
regardless of the manner prescribed by law].
([c]b) If notice is sent by registered or certified mail,
deposit or mailing of the notice in the United States mail in the
form required constitutes compliance with the notice requirement.
This subsection does not apply if the law requires receipt of the
notice by the person to whom it is directed.
([d]c) If a written notice is received by the person
entitled to receive it, the method by which the notice was delivered
is immaterial.
(d) In computing the period of days in which to provide a
notice or to take any action required under this chapter, if the
last day of the period is a Saturday, Sunday, or legal holiday, the
period is extended to include the next day that is not a Saturday,
Sunday, or legal holiday.
SECTION 4. Section 53.021, Property Code, is amended to
read as follows:
Sec. 53.021. PERSONS ENTITLED TO LIEN. [(a)]A person has a
lien if [:]
[(1)] the person, under or by virtue of a contract with
the owner or the owner's agent, trustee, receiver, contractor, or
subcontractor: [labors, specially fabricates material, or]
(a) furnishes labor or materials for construction or repair
of an improvement[; in this state of:
(A) a house, building, or improvement;
(B) a levee or embankment to be erected for the
reclamation of overflow land along a river or creek; or
(C) a railroad; and
(2) the person labors, specially fabricates the
material, or furnishes the labor or materials under or by virtue of
a contract with the owner or the owner's agent, trustee, receiver,
contractor, or subcontractor;.
(b) A person who] specially fabricates material [, has a
lien] even if the material is not delivered;[.]
(c) is a licensed [An] architect, engineer, or surveyor
providing services towho prepares a design, drawing, plan,or
plat, survey, or specification; [under or by virtue of a written
contract with the owner or the owner's agent, trustee, or receiver
in connection with the actual or proposed design, construction, or
repair of improvements on real property or the location of the
boundaries of real property has a lien on the property.
(d) A person who] provides labor, plant material, or other
supplies for the installation of landscaping for an [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]or
(e) [A person who] performs labor as part of, or who
furnishes labor or materials for, the demolition of an improvement
[structure] on real property [under or by virtue of a written
contract with the owner of the property or the owner's agent,
trustee, receiver, contractor, or subcontractor has a lien on the
property].
SECTION 5. Section 53.022, Property Code, is amended to
read as follows:
Sec. 53.022. PROPERTY TO WHICH LIEN EXTENDS. (a) The lien
extends to the [house, building, fixtures, or improvements, the
land reclaimed from overflow, or the railroad and all of its
properties,] and to each lot of land necessarily connected [or
reclaimed].
(b) The lien does not extend to abutting sidewalks, streets,
and utilities that are public property.
(c) A lien against land in a city, town, or village extends
to each lot on which the [house, building, or] improvement is
situated or on which the labor was performed.
(d) A lien against land not in a city, town, or village
extends to not more than 50 acres on which the [house, building, or]
improvement is situated or on which the labor was performed.
SECTION 6. Section 53.023, Property Code, is amended to
read as follows:
Sec. 53.023. PAYMENT SECURED BY LIEN. The lien secures
payment for:
(1) the labor done or material furnished for the
construction, or repair, design, survey, or demolition; or
(2) the specially fabricated material, even if the
material has not been delivered or incorporated into the
construction or repair, less its fair salvage value[; or.
(3) the preparation of a plan or plat by an architect,
engineer, or surveyor in accordance with Section 53.021(c).]
SECTION 7. Section 53.026, Property Code, is amended to
read as follows:
Sec. 53.026. SHAM CONTRACT. (a) A person who furnishes
labors or materials, [specially fabricates materials, or furnishes
labor or materials] under a direct contractual relationship with a
purported original contractor [another person] is considered to be
[in direct contractual relationship with the owner and has a lien
as] an original contractor for purposes of perfecting a mechanic's
lien.[, if:
(1) the owner contracted with the other person for the
construction or repair of a house, building, or improvements and
the owner can effectively control that person through ownership of
voting stock, interlocking directorships, or otherwise;
(2) the owner contracted with the other person for the
construction or repair of a house, building, or improvements and
that other person can effectively control the owner through
ownership of voting stock, interlocking directorships, or
otherwise; or
(3) the owner contracted with the other person for the
construction or repair of a house, building, or improvements and
the contract was made without good faith intention of the parties
that the other person was to perform the contract.
(b) In this section, "owner" does not include a person who
has or claims a security interest only.]
SECTION 8. Section 53.052, Property Code, is amended to
read as follows:
Sec. 53.052. FILING OF AFFIDAVIT. (a) [Except as provided
by Subsection (b)] An original contractor claiming the lien must
file an affidavit with the county clerk:
(1) for projects other than residential construction
projects, on or before the 15th day of the fourth month after the
month in which the original contractor's work was completed,
terminated, or abandoned; or
(2) for residential construction projects, on or
before the 15th day of the third month after the month in which the
original contractor's work was completed, terminated, or
abandoned.
(b) Except as provided by Subsection (c) or (d), [the] a
[person] subcontractor claiming the lien must file an affidavit
with the county clerk on or before [of the county in which the
property is located or into which the railroad extends not later
than the] 15th day of the fourth [calendar] month after the later
of: [day on which the indebtedness accrue]
(1) the month the subcontractor last provided labor or
materials; or
(2) the month the subcontractor would normally have
been required to deliver the last of specially fabricated materials
that have not been actually delivered
(c) a subcontractor claiming the lien arising from a
residential construction project must file an affidavit with the
county clerk on or the 15th day of the third month after the later
of:
(1) the month the subcontractor last provided labor or
materials; or
(2) the month the subcontractor would normally have
been required to deliver the last of specially fabricated materials
that have not been actually delivered.
[(b) A person claiming a lien arising from a residential
construction project must file an affidavit with the county clerk
of the county in which the property is located not later than the
15th day of the third calendar month after the day on which the
indebtedness accrues.]
([c]d) A subcontractor claiming a lien for retainage must
file an affidavit with the county clerk not later than the 15th day
of the third month after the month in which the original contract
under which the subcontractor performed was completed, terminated,
or abandoned.
(e) An affidavit under this chapter must be filed in the
county where the improvements are located. The county clerk shall
record the affidavit in records kept for that purpose and shall
index and cross-index the affidavit in the names of the claimant,
the original contractor, and the owner. Failure of the county clerk
to properly record or index a filed affidavit does not invalidate
the lien.
SECTION 9. Section 53.055, Property Code, is amended to
read as follows:
Sec. 53.055. NOTICE OF FILED AFFIDAVIT. (a) A person who
files an affidavit must send a copy of the affidavit [by registered
or certified mail] to the owner or reputed owner at the owner's last
known business or residence address not later than the fifth day
after the date the affidavit is filed with the county clerk.
(b) If the person is not an original contractor, the person
must also send a copy of the affidavit to the original contractor at
the original contractor's last known business or residence address
within the same period.
SECTION 10. Section 53.056, Property Code, is amended to
read as follows:
Sec. 53.056. [DERIVATIVE] SUBCONTRACTOR CLAIMANT: NOTICE
TO OWNER AND[OR] ORIGINAL CONTRACTOR. (a) Except as provided in
Section 53.057[, by Subchapter K, a claimant other than an original
contractor] a subcontractor claimant must give the notice
prescribed by this section for the lien to be valid.
(b) For all unpaid labor or materials provided, the
subcontractor claimant must send a notice of claim for unpaid labor
or materials to the owner or reputed owner and the original
contractor. The notice must be sent: [(b) If the lien claim arises
from a debt incurred by a subcontractor, the claimant must give to
the original contractor written notice of the unpaid balance. The
claimant must give the notice not later than the 15th day of the
second month following each month in which all or part of the
claimant's labor was performed or material delivered. The claimant
must give the same notice to the owner or reputed owner and the
original contractor not later than the 15th day of the third month
following each month in which all or part of the claimant's labor
was performed or material or specially fabricated material was
delivered.]
(1) For projects other than residential construction
projects, not later than the 15th day of the third month following
the month during which the labor or materials were provided or the
undelivered specially fabricated materials would normally have
been delivered; or
(2) for residential construction projects, not later
than the 15th day of the second month following the month during
which the labor or materials were provided or the undelivered
specially fabricated materials would normally have been delivered;
[(c) If the lien claim arises from a debt incurred by the
original contractor, the claimant must give notice to the owner or
reputed owner, with a copy to the original contractor, in
accordance with Subsection (b).
(d) To authorize the owner to withhold funds under
Subchapter D, the notice to the owner must state that if the claim
remains unpaid, the owner may be personally liable and the owner's
property may be subjected to a lien unless:
(1) the owner withholds payments from the contractor
for payment of the claim; or
(2) the claim is otherwise paid or settled.
(e) The notice must be sent by registered or certified mail
and must be addressed to the owner or reputed owner or the original
contractor, as applicable, at his last known business or residence
address.
(f) A copy of the statement or billing in the usual and
customary form is sufficient as notice under this section.]
(c) The notice must be in substantially the following form:
NOTICE OF CLAIM FOR UNPAID LABOR OR MATERIALS
WARNING: This notice is provided to preserve lien rights.
Owner's property may be subject to a lien if sufficient funds
are not withheld from future payments to the original contractor to
cover this debt.
"Date:
"Project description and/or address:
"Claimant's name:
"Type of labor or materials provided:
"Original contractor's name:
"Party with whom Claimant contracted if different from
Original Contractor:
"Claim amount:
" (Claimant's contact person)
" (Claimant's address)"
Any statement or billing may be included with this notice
SECTION 11. Section 53.057, Property Code, is amended to
read as follows:
Sec. 53.057. [DERIVATIVE] SUBCONTRACTOR CLAIMANT: NOTICE
OF CLAIM FOR UNPAID [CONTRACTUAL] RETAINAGE [CLAIM]. (a) To the
extent that a claim for unpaid retainage is not included in whole
or in part in a notice provided under section 53.056, a[A]
subcontractor claimant whose contract provides for retainage must
[claimant may] give notice under this section for the lien for
unpaid retainage to be valid.
(b) The subcontractor claimant must send the notice of claim
for unpaid retainage to the owner or reputed owner and the original
contractor not later than the earlier of
(1) the 30th day after the date the subcontractor
claimant's contract is completed, terminated, or abandoned or
(2) the 30th day after the date the original contract
is terminated or abandoned. [instead of or in addition to notice
under Section 53.056 or 53.252 if the claimant is to labor, furnish
labor or materials, or specially fabricate materials, or has
labored, furnished labor or materials or specially fabricated
materials, under an agreement with an original contractor or a
subcontractor providing for retainage.]
(c) The notice must be in substantially the following form:
[(b) The claimant must give the owner or reputed owner
notice of contractual retainage not later than the earlier of:
(1) the 30th day after the date the claimant's
agreement providing for retainage is completed, terminated, or
abandoned; or
(2) the 30th day after the date the original contract
is terminated or abandoned.
(b-1) If an agreement for contractual retainage is with a
subcontractor, the claimant must also give the notice of
contractual retainage to the original contractor within the period
prescribed by Subsection (b).
(c) The notice must generally state the existence of a
requirement for retainage and contain:
(1) the name and address of the claimant; and
(2) if the agreement is with a subcontractor, the name
and address of the subcontractor.
(d) The notice must be sent to the last known business or
residence address of the owner or reputed owner or the original
contractor, as applicable.
(e) If a claimant gives notice under this section and
Section 53.055 or, if the claim relates to a residential
construction project, under this section and Section 53.252, the
claimant is not required to give any other notice as to the
retainage.
(f) A claimant has a lien on, and the owner is personally
liable to the claimant for, the retained funds under Subchapter E if
the claimant:
(1) gives notice in accordance with this section and:
(A) complies with Subchapter E; or
(B) files an affidavit claiming a lien not later
than the earliest of:
(i) the date required for filing an
affidavit under Section 53.052;
(ii) the 40th day after the date stated in
an affidavit of completion as the date of completion of the work
under the original contract, if the owner sent the claimant notice
of an affidavit of completion in the time and manner required;
(iii) the 40th day after the date of
termination or abandonment of the original contract, if the owner
sent the claimant a notice of such termination or abandonment in the
time and manner required; or
(iv) the 30th day after the date the owner
sent to the claimant to the claimant's address provided in the
notice for contractual retainage, as required under Subsection (c),
a written notice of demand for the claimant to file the affidavit
claiming a lien; and
(2) gives the notice of the filed affidavit as
required by Section 53.055.
(g) The written demand under Subsection (f)(1)(B)(iv):
(1) must contain the owner's name and address and a
description, legally sufficient for identification, of the real
property on which the improvement is located;
(2) must state that the claimant must file the lien
affidavit not later than the 30th day after the date the demand is
sent; and
(3) is effective only for the amount of contractual
retainage earned by the claimant as of the day the demand was sent.]
"NOTICE OF CLAIM FOR UNPAID RETAINAGE
"WARNING: This notice is provided to preserve lien rights.
Owner's property may be subject to a lien if sufficient funds
are not withheld from future payments to the original contractor to
cover this debt.
"Date:
"Project description and/or address:
"Claimant's name:
"Type of labor or materials provided:
"Original contractor's name:
"Party with whom Claimant contracted if different from
Original Contractor
"Total retainage unpaid:
" (Claimant's contact person )
" (Claimant's address)"
Any statement or billing may be included with this notice
SECTION 12. Section 53.081, Property Code, is amended to
read as follows:
Sec. 53.081. AUTHORITY TO WITHHOLD FUNDS FOR BENEFIT OF
CLAIMANTS. [(a)] If an owner receives notice under Section 53.056
or 53.057[, 53.058, 53.252, or 53.253], the owner may withhold from
payments to the original contractor an amount necessary to pay the
claim for which the owner receives notice. Such withholding can be
in addition to any retainage.
[(b) If notice is sent in a form that substantially complies
with Section 53.056 or 53.252, the owner may withhold the funds
immediately on receipt of the notice.
(c) If notice is sent under Section 53.057, the owner may
withhold funds immediately on receipt of a copy of the claimant's
affidavit prepared in accordance with Sections 53.052 through
53.055.
(d) If notice is sent under Section 53.058, the owner may
withhold funds immediately on receipt of the notices sent under
Subsection (e) of that section. If notice is sent as provided by
Section 53.253(b), the owner may withhold funds immediately on
receipt of the notice sent as required by Section 53.252.]
SECTION 13. Section 53.082, Property Code, is amended to
read as follows:
Sec. 53.082. TIME FOR WHICH FUNDS ARE WITHHELD. Unless
[payment is made under Section 53.083 or] the claim is otherwise
settled, discharged, indemnified against under Subchapter H or I,
or determined to be invalid by a final judgment of a court, the
owner shall retain the funds withheld until:
(1) the time for filing the affidavit of mechanic's
lien has passed; or
(2) if a lien affidavit has been filed, until the lien
claim has been satisfied or released.
SECTION 14. Section 53.084, Property Code, is amended to
read as follows:
Sec. 53.084. OWNER'S LIABILITY. (a) Except for the amount
[required to be retained]the owner fails to reserve under
Subchapter E, the owner is not liable for any amount paid to the
original contractor before the owner is authorized to withhold
funds under this subchapter.
(b) If the owner has received [the] a notice[s] required by
Section 53.056 or 53.057[ubchapter C or K], if the lien has been
secured, and if the claim has been reduced to final judgment, the
owner is liable and the owner's property is subject to a claim for
any money paid to the original contractor after the owner was
authorized to withhold funds under this subchapter. The owner is
liable for that amount in addition to any amount for which he is
liable under Subchapter E.
SECTION 15. The heading to Subchapter E, Chapter 53,
Property Code is amended to read as follows:
SUBCHAPTER E. [REQUIRED RETAINAGE] FUNDS RESERVED FOR THE BENEFIT
OF LIEN CLAIMANTS
SECTION 16. Section 53.101, Property Code, is amended to
read as follows:
Sec. 53.101. FUNDS REQUIRED [RETAINAGE] TO BE RESERVED.
(a) During the progress of work under an original contract for
which a mechanic's lien may be claimed and for 30 days after the
work under such contract is completed, the owner shall [retain]
reserve:
(1) 10 percent of the contract price of the work to the
owner; or
(2) 10 percent of the value of the work, measured by
the proportion that the work done bears to the work to be done,
using the contract price or, if there is no contract price, using
the reasonable value of the completed work.
(b) In this section, "owner" includes the owner's agent,
trustee, or receiver.
SECTION 17. Section 53.102, Property Code, is amended to
read as follows:
Sec. 53.102. PAYMENT SECURED BY RESERVED FUNDS [BY
RETAINAGE]. The [retained] reserved funds secure the payment of
artisans and mechanics who perform labor or service and the payment
of other persons who furnish material, material and labor, or
specially fabricated material for any contractor, subcontractor,
agent, or receiver in the performance of the work.
SECTION 18. Section 53.103, Property Code, is amended to
read as follows:
Sec. 53.103. LIEN ON RETAINED FUNDS. A claimant has a lien
on the [retained] reserved funds if the claimant:
(1) sends the notices required by this chapter in the
time and manner required; and
(2) except as allowed by Section 53.0527(df), files an
affidavit claiming a lien not later than the 30th day after the
earliest of the date:
(A) the work is completed;
(B) the original contract is terminated; or
(C) the original contractor abandons performance
under the original contract.
SECTION 19. Section 53.104, Property Code, is amended to
read as follows:
Sec. 53.104. PREFERENCES. (a) Individual artisans and
mechanics are entitled to a preference to the [retained] reserved
funds and shall share proportionately to the extent of their claims
for wages and fringe benefits earned.
(b) After payment of artisans and mechanics who are entitled
to a preference under Subsection (a), other participating claimants
share proportionately in the balance of the [retained] reserved
funds.
SECTION 20. Section 53.105, Property Code, is amended to
read as follows:
Sec. 53.105. OWNER'S LIABILITY FOR FAILURE TO [RETAIN]
RESERVE FUNDS. (a) If the owner fails or refuses to comply with
this subchapter, the claimants complying with Subchapter C or this
subchapter have a lien, at least to the extent of the amount that
should have been [retained] reserved from the original contract
under which they are claiming, against the [house, building,
structure, fixture, or] improvements and all of its properties and
against the lot or lots of land necessarily connected.
(b) The claimants share the lien proportionately in
accordance with the preference provided by Section 53.104.
SECTION 21. Section 53.106, Property Code, is amended to
read as follows:
Sec. 53.106. AFFIDAVIT OF COMPLETION. (a) An owner may
file with the county clerk of the county in which the property is
located an affidavit of completion. The affidavit must contain:
(1) the name and address of the owner;
(2) the name and address of the original contractor;
(3) a description, legally sufficient for
identification, of the real property on which the improvements are
located;
(4) a description of the improvements furnished
under the original contract;
(5) a statement that the improvements under the
original contract have been completed and the date of completion;
and
(6) a conspicuous statement that a claimant may not
have a lien on retained funds unless the claimant files an affidavit
claiming a lien [not later than the 40th day after the date the work
under the original contract is completed] in the time and manner
required by this chapter.
(b) A copy of the affidavit must be sent [by certified or
registered mail] to the original contractor, [not later than the
date the affidavit is filed] and to each claimant who sends a notice
[of lien liability] to the owner under Sections 53.056 or[,]
53.057[, 53.058, 53.252, or 53.253 not later than] within three
days after the date the affidavit is filed or the 10th day after the
date the owner receives the notice of lien liability, whichever is
later.
(c) A copy of the affidavit must also be sent to each person
who furnishes labor or materials for the property and who furnishes
the owner with a written request for the copy. The owner must
furnish the copy to the person not later than the date the affidavit
is filed or the 10th day after the date the request is received,
whichever is later.
(d) [Except as provided by this subsection, a] An affidavit
filed under this section [on or before the 10th day after the date
of completion of the improvements] is prima facie evidence of the
date the work under the original contract is completed for purposes
of this [subchapter] chapter [and Section 53.057]. If the
affidavit is filed after the 10th day after the date of completion,
the date of completion for purposes of this subchapter [and Section
53.057]is the date the affidavit is filed. This subsection does not
apply to a person to whom the affidavit was not sent as required by
this section.
SECTION 22. Section 53.107 (a) and (b), Property Code, are
amended to read as follows:
(a) Not later than the 10th day after the date an original
contract is terminated or the original contractor abandons
performance under the original contract, the owner shall give
notice to each subcontractor who, before the date of termination or
abandonment, has:
(1) given notice to the owner as provided by Section
53.056 or [,] 53.057[., or 53.058]; or
(2) sent to the owner [by certified or registered
mail] a written request for notice of termination or abandonment.
(b) The notice must contain:
(1) the name and address of the owner;
(2) the name and address of the original contractor;
(3) a description, legally sufficient for
identification, of the real property on which the improvements are
located;
(4) a general description of the improvements agreed
to be furnished under the original contract;
(5) a statement that the original contract has been
terminated or that performance under the contract has been
abandoned;
(6) the date of the termination or abandonment; and
(7) a conspicuous statement that a claimant may not
have a lien on the retained funds unless the claimant files an
affidavit claiming a lien [not later than the 40th day after the
date of the termination or abandonment] in the time and manner
required by this chapter.
SECTION 23. Section 53.155, Property Code, is amended to
read as follows:
Sec. 53.155. TRANSFER OF PROPERTY SOLD. If the [house,
building,] improvement [, or any piece of railroad property] is
sold separately from the land, the officer making the sale shall
provide [place] the purchaser [in possession. The purchaser is
entitled to] a reasonable time after the date of purchase within
which to remove and take possession of the purchased [property]
improvement.
SECTION 24. Section 53.157, Property Code, is amended to
read as follows:
Sec. 53.157. DISCHARGE OF LIEN. A[n] mechanic's lien or
affidavit claiming a mechanic's lien filed under Section 53.052 may
be discharged of record by:
(1) recording a lien release signed by the claimant
under Section 53.152;
(2) failing to institute suit to foreclose the lien in
the county in which the [property] improvement is located within
the period prescribed by Section 53.158, 53.175, or 53.208;
(3) recording the original or certified copy of a
final judgment or decree of a court of competent jurisdiction
providing for the discharge;
(4) filing the bond and notice in compliance with
Subchapter H;
(5) filing the bond in compliance with Subchapter I;
or
(6) recording a certified copy of the order removing
the lien under Section 53.160, provided that [and a certificate
from the clerk of the court that states that] no bond or deposit as
described by Section 53.161 was filed by the claimant within 30 days
after the date the order was entered.
SECTION 25. Section 53.158, Property Code, is amended to
read as follows:
Sec. 53.158. PERIOD FOR BRINGING SUIT TO FORECLOSE LIEN.
(a) Except as provided by Subsection (b), suit must be brought to
foreclose the lien within [two] one years after the last day a
claimant may file the lien affidavit under Section 53.052 [or
within one year after completion, termination, or abandonment of
the work under the original contract under which the lien is
claimed, whichever is later].
(b) The limitations period established under Subsection (a)
may be extended to not later than the second anniversary of the date
the claimant filed the lien affidavit under Section 53.052 if,
before the expiration of the limitations period established under
Subsection (a), the claimant enters into a written agreement with
the then-current record owner of the property to extend the
limitations period. The agreement shall be recorded with the clerk
of the same county where the lien was recorded and shall be deemed
to be notice of such extension to any subsequent purchaser. [For a
claim arising from a residential construction project, suit must be
brought to foreclose the lien within one year after the last day a
claimant may file a lien affidavit under Section 53.052 or within
one year after completion, termination, or abandonment of the work
under the original contract under which the lien is claimed,
whichever is later.]
(c) Notwithstanding Section 16.069, Civil Practice and
Remedies Code, or any other law, if suit is pursued solely to
discharge a lien because limitations have expired to bring a lien
foreclosure suit, the lien claimant's rights to pursue a suit to
foreclose a lien are not revived.
SECTION 26. Section 53.160(b)(1) and (c), Property Code,
are amended to read as follows:
(b) The grounds for objecting to the validity or
enforceability of the claim or lien for purposes of the motion are
limited to the following:
(1) notice of claim was not timely furnished to the
owner or original contractor as required by Section 53.056 or [,
53.057 , 53.058, 53.252, or 53.253];
(2) an affidavit claiming a lien failed to comply with
Section 53.054 or was not filed as required by Section 53.052;
(3) notice of the filed affidavit was not furnished to
the owner or original contractor as required by Section 53.055;
(4) the deadlines for perfecting a lien claim for
retainage under this chapter have expired and the owner complied
with the requirements of Section 53.101 and paid the retainage and
all other funds owed to the original contractor before:
(A) the claimant perfected the lien claim; and
(B) the owner received a notice of the claim as
required by this chapter;
(5) all funds subject to the notice of a claim to the
owner and a notice regarding the retainage have been deposited in
the registry of the court and the owner has no additional liability
to the claimant;
(6) when the lien affidavit was filed on homestead
property:
(A) no contract was executed or filed as required
by Section 53.254;
(B) the affidavit claiming a lien failed to
contain the notice as required by Section 53.254; or
(C) the notice of the claim failed to include the
statement required by Section 53.254; and
(7) the claimant executed a valid and enforceable
waiver or release of the claim or lien claimed in the affidavit.
(c) The claimant is not required to file a response. The
claimant and any other party that has appeared in the proceeding
must be notified by at least [21]30 days before the date of the
hearing on the motion. A motion may not be heard before the [21st]
30th day after the date the claimant answers or appears in the
proceeding. The claimant will be allowed expedited discovery
regarding information relevant to the issues listed in subsection
(b).
SECTION 27. Section 53.173(c), Property Code, is amended to
read as follows:
(c) The notice must be served on each obligee by mailing a
copy of the notice and the bond to the obligee by certified [United
States mail, return receipt requested,] addressed to the claimant
at the address stated in the lien affidavit for the obligee.
SECTION 28. Section 53.205(a), Property Code, is amended to
read as follows:
(a) The bond protects all persons with a claim that is:
(1) perfected in the manner prescribed for fixing a
lien under Subchapter C [or, if the claim relates to a residential
construction project, under Subchapter K;] or
(2) perfected in the manner prescribed by Section
53.206.
SECTION 29. Section 53.206, Property Code, is amended to
read as follows:
Sec. 53.206. PERFECTION OF CLAIM. (a) To perfect a claim
against a bond in a manner other than that prescribed by Subchapter
C [or K] for fixing a lien, a person must [:
(1)] give notice under Sections 53.056 and 53.057 to
the original contractor and surety on the bond, except as otherwise
provided in subsection (b). [all applicable notices under the
appropriate subchapter; and
(2) give to the surety on the bond, instead of the
owner, all notices under the appropriate subchapter required to be
given to the owner.]
(b) To perfect a claim for retainage under this section, a
[person] claimant is not required to [:
(1)] give notice to the surety under Section 53.057 if
[, unless] the claimant has a direct contractual relationship with
the original contractor [ and the agreed retainage is in excess of
10 percent of the contract.;
(2) give notice to the surety under Section 53.058(b)
or, if the claim relates to a residential construction project,
under Section 53.253(c); or
(3) file any affidavit with the county clerk.]
(c) A claimant that provides the notices described herein
need not file an affidavit claiming a mechanic's lien in order to
perfect its claim under the bond. [For the claim to be valid, a
person must give notice in the time and manner required by this
section, but the content of the notices need only provide fair
notice of the amount and the nature of the claim asserted.]
(d) A person satisfies the requirements of this section
relating to providing notice to the surety if the person mails the
notice by certified or registered mail to the surety:
(1) at the address stated on the bond or on an
attachment to the bond;
(2) at the address on file with the Texas Department of
Insurance; or
(3) at any other address allowed by law.
SECTION 30. Section 53.207(a), Property Code, is amended to
read as follows:
(a) If the owner receives any of the notices or a lien is
fixed under this chapter [Subchapter C or K], the owner shall mail
to the surety on the bond a copy of all notices received.
SECTION 31. Section 53.208(a), Property Code, is amended to
read as follows:
(a) A claimant may sue the principal and surety on the bond
either jointly or severally, if [his] the claim remains unpaid for
60 days after the claimant perfects the claim.
SECTION 32. Section 53.232, Property Code, is amended to
read as follows:
Sec. 53.232. TO WHOM NOTICE GIVEN; MANNER. The lien
claimant must send written notice of his claim by [registered or]
certified mail to:
(1) the officials of the state, county, town, or
municipality whose duty it is to pay the contractor; and
(2) the contractor at the contractor's last known
business or residence address.
SECTION 33. Section 53.238, Property Code, is amended to
read as follows:
Sec. 53.238. NOTICE OF BOND. The official with whom the
bond is filed shall send an exact copy of the bond by [registered
mail or] certified mail, return receipt requested, to all
claimants.
SECTION 34. The heading to Section 53.254, Property Code,
is amended to read as follows:
Sec. 53.254. CONTRACTUAL REQUIREMENTS TO LIEN A HOMESTEAD.
SECTION 35. Section 53.254(g), Property Code, is amended to
read as follows:
(g) For the lien on a homestead to be valid, the notice
required to be given to the owner under Subchapter C [Section
53.252] must include or have attached the following statement:
"If a subcontractor or supplier who furnishes materials or
performs labor for construction of improvements on your property is
not paid, your property may be subject to a lien for the unpaid
amount if:
(1) after receiving notice of the unpaid claim from
the claimant, you fail to withhold payment to your contractor that
is sufficient to cover the unpaid claim until the dispute is
resolved; or
(2) during construction and for 30 days after
completion of your contractor's work [construction], you fail to
[retain] reserve 10 percent of the contract price or 10 percent of
the value of the work performed by your contractor.
"If you have complied with the law regarding the reservation
of 10 percent of the contract price or value [retainage] and you
have withheld payment to the contractor sufficient to cover any
written notice of claim and have paid that amount, if any, to the
claimant, any lien claim filed on your property by a subcontractor
or supplier, other than a person who contracted directly with you,
will not be a valid lien on your property. In addition, except for
the required 10 percent [retainage] reservation, you are not liable
to a subcontractor or supplier for any amount paid to your
contractor before you received written notice of the claim."
SECTION 36. Section 53.255(b), Property Code, is amended to
read as follows:
(b) The disclosure statement must read substantially
similar to the following:
"KNOW YOUR RIGHTS AND RESPONSIBILITIES UNDER THE LAW. You
are about to enter into a transaction to build a new home or remodel
existing residential property. Texas law requires your contractor
to provide you with this brief overview of some of your rights,
responsibilities, and risks in this transaction.
"CONVEYANCE TO CONTRACTOR NOT REQUIRED. Your contractor may
not require you to convey your real property to your contractor as a
condition to the agreement for the construction of improvements on
your property.
"KNOW YOUR CONTRACTOR. Before you enter into your agreement
for the construction of improvements to your real property, make
sure that you have investigated your contractor. Obtain and verify
references from other people who have used the contractor for the
type and size of construction project on your property.
"GET IT IN WRITING. Make sure that you have a written
agreement with your contractor that includes: (1) a description of
the work the contractor is to perform; (2) the required or estimated
time for completion of the work; (3) the cost of the work or how the
cost will be determined; and (4) the procedure and method of
payment, including provisions for statutory [retainager]
reservation of funds and conditions for final payment. If your
contractor made a promise, warranty, or representation to you
concerning the work the contractor is to perform, make sure that
promise, warranty, or representation is specified in the written
agreement. An oral promise that is not included in the written
agreement may not be enforceable under Texas law.
"READ BEFORE YOU SIGN. Do not sign any document before you
have read and understood it. NEVER SIGN A DOCUMENT THAT INCLUDES AN
UNTRUE STATEMENT. Take your time in reviewing documents. If you
borrow money from a lender to pay for the improvements, you are
entitled to have the loan closing documents furnished to you for
review at least one business day before the closing. Do not waive
this requirement unless a bona fide emergency or another good cause
exists, and make sure you understand the documents before you sign
them. If you fail to comply with the terms of the documents, you
could lose your property. You are entitled to have your own
attorney review any documents. If you have any question about the
meaning of a document, consult an attorney.
"GET A LIST OF SUBCONTRACTORS AND SUPPLIERS. Before
construction commences, your contractor is required to provide you
with a list of the subcontractors and suppliers the contractor
intends to use on your project. Your contractor is required to
supply updated information on any subcontractors and suppliers
added after the list is provided. Your contractor is not required
to supply this information if you sign a written waiver of your
rights to receive this information.
"MONITOR THE WORK. Lenders and governmental authorities may
inspect the work in progress from time to time for their own
purposes. These inspections are not intended as quality control
inspections. Quality control is a matter for you and your
contractor. To ensure that your home is being constructed in
accordance with your wishes and specifications, you should inspect
the work yourself or have your own independent inspector review the
work in progress.
"MONITOR PAYMENTS. If you use a lender, your lender is
required to provide you with a periodic statement showing the money
disbursed by the lender from the proceeds of your loan. Each time
your contractor requests payment from you or your lender for work
performed, your contractor is also required to furnish you with a
disbursement statement that lists the name and address of each
subcontractor or supplier that the contractor intends to pay from
the requested funds. Review these statements and make sure that the
money is being properly disbursed.
"CLAIMS BY SUBCONTRACTORS AND SUPPLIERS. Under Texas law, if
a subcontractor or supplier who furnishes labor or materials for
the construction of improvements on your property is not paid, you
may become liable and your property may be subject to a lien for the
unpaid amount, even if you have not contracted directly with the
subcontractor or supplier. To avoid liability, you should take the
following actions:
(1) If you receive a written notice from a
subcontractor or supplier, you should withhold payment from your
contractor for the amount of the claim stated in the notice until
the dispute between your contractor and the subcontractor or
supplier is resolved. If your lender is disbursing money directly
to your contractor, you should immediately provide a copy of the
notice to your lender and instruct the lender to withhold payment in
the amount of the claim stated in the notice. If you continue to pay
the contractor after receiving the written notice without
withholding the amount of the claim, you may be liable and your
property may be subject to a lien for the amount you failed to
withhold.
(2) During construction and for 30 days after final
completion, termination, or abandonment of the contract by the
contractor, you should [withhold] reserve or cause your lender to
[withhold] reserve 10 percent of the amount of payments made for the
work performed by your contractor. [This is sometimes referred to
as 'statutory retainage.'] If you choose not to [withhold] reserve
the 10 percent for at least 30 days after final completion,
termination, or abandonment of the contract by the contractor and
if a valid claim is timely made by a claimant and your contractor
fails to pay the claim, you may be personally liable and your
property may be subject to a lien up to the amount that you failed to
[withhold] reserve.
"If a claim is not paid within a certain time period, the
claimant is required to file a mechanic's lien affidavit in the real
property records in the county where the property is located. A
mechanic's lien affidavit is not a lien on your property, but the
filing of the affidavit could result in a court imposing a lien on
your property if the claimant is successful in litigation to
enforce the lien claim.
"SOME CLAIMS MAY NOT BE VALID. When you receive a written
notice of a claim or when a mechanic's lien affidavit is filed on
your property, you should know your legal rights and
responsibilities regarding the claim. Not all claims are valid. A
notice of a claim by a subcontractor or supplier is required to be
sent, and the mechanic's lien affidavit is required to be filed,
within strict time periods. The notice and the affidavit must
contain certain information. All claimants may not fully comply
with the legal requirements to collect on a claim. If you have paid
the contractor in full before receiving a notice of a claim and have
[fully complied with the law regarding statutory retainage]
withheld the ten percent of the price or value of work, you may not
be liable for that claim. Accordingly, you should consult your
attorney when you receive a written notice of a claim to determine
the true extent of your liability or potential liability for that
claim.
"OBTAIN A LIEN RELEASE AND A BILLS PAID AFFIDAVIT. When you
receive a notice of claim, do not release withheld funds without
obtaining a signed and notarized release of lien and claim from the
claimant. You can also reduce the risk of having a claim filed by a
subcontractor or supplier by requiring as a condition of each
payment made by you or your lender that your contractor furnish you
with an affidavit stating that all bills have been paid. Under
Texas law, on final completion of the work and before final payment,
the contractor is required to furnish you with an affidavit stating
that all bills have been paid. If the contractor discloses any
unpaid bill in the affidavit, you should withhold payment in the
amount of the unpaid bill until you receive a waiver of lien or
release from that subcontractor or supplier.
"OBTAIN TITLE INSURANCE PROTECTION. You may be able to
obtain a title insurance policy to insure that the title to your
property and the existing improvements on your property are free
from liens claimed by subcontractors and suppliers. If your policy
is issued before the improvements are completed and covers the
value of the improvements to be completed, you should obtain, on the
completion of the improvements and as a condition of your final
payment, a 'completion of improvements' policy endorsement. This
endorsement will protect your property from liens claimed by
subcontractors and suppliers that may arise from the date the
original title policy is issued to the date of the endorsement."
(c) The failure of a contractor to comply with this section
does not invalidate a lien under this chapter, a contract lien, or a
deed of trust.
SECTION 37. Section 53.281(b), Property Code, is amended to
read as follows:
(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.
SECTION 38. The following provisions of the Property Code
are repealed:
(1) Section 53.053;
(2) Section 53.058;
(3) Section 53.083;
(4) Section 53.252; and
(5) Section 53.253.
SECTION 39. The changes in law made by this Act apply only
to an original contract entered into on or after the effective date
of this Act. An original contract entered into before the effective
date of this Act is governed by the law as it existed immediately
before the effective date of this Act, and that law is continued in
effect for that purpose.
SECTION 40. This Act takes effect September 1, 2021.