Request for Release of Lien - Individual
Note: This summary is not intended to be anall inclusive discussion of Texas Law of Mechanic's liens, but does containbasic and other provisions.
Definitions as used herein.
"Labor" means labor used in the direct prosecutionof the work.
"Material" means all or part of:
(A) the material, machinery, fixtures, or tools incorporatedinto the work, consumed in the direct prosecution of the work, orordered and delivered for incorporation or consumption;
(B) rent at a reasonable rate and actual running repairs at a reasonablecost for construction equipment used or reasonably required anddelivered for use in the direct prosecution of the work at the site ofthe construction or repair; or
(C) power, water, fuel, and lubricants consumed or ordered anddelivered for consumption in the direct prosecution of the work.
"Mechanic's lien" means the lien provided by Texas Laws, Chapter53.
"Original contract" means an agreement to which an owneris a party either directly or by implication of law.
"Original contractor" means a person contracting with anowner either directly or through the owner's agent.
"Residence" means a single-family house, duplex, triplex,or quadruplex or a unit in a multiunit structure used for residential purposesthat 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.
"Residential construction contract" means a contract betweenan owner and a contractor in which the contractor agrees to constructor repair the owner's residence, including improvements appurtenant tothe residence.
"Residential construction project" means a project for theconstruction or repair of a new or existing residence, includingimprovements appurtenant to the residence, as provided by a residentialconstruction contract.
"Retainage" means an amount representing part of a contractpayment that is not required to be paid to the claimant withinthe month following the month in which labor is performed, material isfurnished, or specially fabricated material is delivered. Theterm does not include retainage under Subchapter E.
"Specially fabricated material" means material fabricatedfor use as a component of the construction or repair so as to bereasonably unsuitable for use elsewhere.
"Subcontractor" means a person who has furnished labor ormaterials to fulfill an obligation to an original contractor or toa subcontractor to perform all or part of the work required by an originalcontract.
"Work" means any part of construction or repair performedunder an original contract.
"Completion" of an original contract means the actual completionof the work, including any extras or change orders reasonablyrequired or contemplated under the original contract, other than warrantywork or replacement or repair of the work performed under thecontract. § 53.001.
Number of Contractors: There may beone or more contractors for a constrution project. 53.002.
Notice Requirements: Any notice or otherwritten communication may be delivered in person to the party entitledto the notice or to that party's agent, regardless of the mannerprescribed by law. If notice is sent by registered or certified mail,deposit or mailing of the notice in the United States mail in the form requiredconstitutes compliance with the notice requirement. This subsection doesnot apply if the law requires receipt of the notice by the person to whomit is directed. If a written notice is received by the person entitledto receive it, the method by which the notice was delivered is immaterial. 53.003.
Persons Entitled to Lien:
A person has a lien if the person labors, specially fabricatesmaterial, or furnishes labor or materials for construction or repair inthis state of:
(A) a house, building, or improvement;
(B) a levee or embankment to be erected for the reclamation ofoverflow land along a river or creek; or
(C) a railroad;
and the person labors, specially fabricates the material, or furnishesthe labor or materials under or by virtue of a contract with theowner or the owner's agent, trustee, receiver, contractor, or subcontractor.
A person who specially fabricates material has a lien even if the materialis not delivered.
An architect, engineer, or surveyor who prepares a plan or platunder or by virtue of a written contract with the owner or theowner's agent, trustee, or receiver in connection with the actual or proposeddesign, construction, or repair of improvements on real propertyor the location of the boundaries of real property has a lien on the property.
A person who provides labor, plant material, or other supplies forthe installation of landscaping for a house, building, or improvement,including the construction of a retention pond, retaining wall, berm, irrigationsystem, fountain, or other similar installation, under or by virtue ofa written contract with the owner or the owner's agent, trustee, or receiverhas a lien on the property. 53.021.
Property to Which Lien Extends: The lien extendsto the house, building, fixtures, or improvements, the land reclaimed fromoverflow, or the railroad and all of its properties, and to each lot ofland necessarily connected or reclaimed. The lien does not extendto abutting sidewalks, streets, and utilities that are public property.A lien against land in a city, town, or village extends to each lot onwhich the house, building, or improvement is situated or on which the laborwas performed. A lien against land not in a city, town, or villageextends to not more than 50 acres on which the house, building, or improvementis situated or on which the labor was performed. 53.022.
Payment Secured by Lien: The lien securespayment for:
(1) the labor done or material furnished for the constructionor repair;
(2) the specially fabricated material, even if the material hasnot 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. 53.023.
Limitation on Subcontractor's Lien: The amountof a lien claimed by a subcontractor may not exceed:
(1) an amount equal to the proportion of the total subcontractprice that the sum of the labor performed, materials furnished, materials specially fabricated, reasonable overhead costs incurred,and proportionate profit margin bears to the total subcontract price; minus
(2) the sum of previous payments received by the claimant on thesubcontract. 53.024.
Limitation on Ordinary Retainage Lien: A lienfor retainage is valid only for the amount specified to be retained inthe contract, including any amendments to the contract, betweenthe claimant and the original contractor or between the claimant and asubcontractor. 53.025.
Inception of Mechanic's Lien - Affidavit of Commencement: Except as provided below for special lien claimants, the time of inceptionof a mechanic's lien is the commencement of construction of improvementsor delivery of materials to the land on which the improvements are to belocated and on which the materials are to be used. The construction ormaterials must be visible from inspection of the land on which the improvementsare being made.
An owner and original contractor may jointly file an affidavitof commencement with the county clerk of the county in which the land islocated not later than the 30th day after the date of actual commencementof construction of the improvements or delivery of materials to the land. See Form TX-09-09 or TX-09A-09.Such an affidavit filed in compliance with law is prima facie evidenceof the date of the commencement of the improvement described in the affidavit.The time of inception of a mechanic's lien arising from work describedin an affidavit of commencement is the date of commencement of the workstated in the affidavit.
The time of inception of a lien that is created by an architect,engineer, or surveyor who prepares a plan or plat under or by virtue ofa 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 ofthe boundaries of real property, or a person who provides labor, plantmaterial, or other supplies for the installation of landscaping for a house,building, or improvement, including the construction of a retentionpond, retaining wall, berm, irrigation system, fountain, or other similarinstallation, under or by virtue of a written contract with the owner orthe owner's agent, trustee, or receiver, is the date of recording of anaffidavit of lien. The priority of a lien claimed by a person entitledto such liens with respect to other mechanic's liens is determined bythe date of recording. Such liens are not valid or enforceable againsta grantee or purchaser who acquires an interest in the real property beforethe time of inception of the lien. 53.124.
Affidavit Required For Payment: Any personwho furnishes labor or materials for the construction of improvements onreal property shall, if requested and as a condition of paymentfor such labor or materials, provide to the requesting party, or the party'sagent, an affidavit stating that the person has paid each of the person'ssubcontractors, laborers, or materialmen in full for all labor and materialsprovided to the person for the construction. In the event, however, thatthe person has not paid each of the person's subcontractors, laborers,or materialmen in full, the person shall state in the affidavit the amountowed and the name and, if known, the address and telephone number of eachsubcontractor, laborer, or materialman to whom the payment is owed. SeeForm TX-02-09, TX-02A-09, TX-02B-09 or TX-02C-09.
The seller of any real property shall, upon request by the purchaseror the purchaser's agent prior to closing of the purchase of the real property,provide to the purchaser or the purchaser's agent, a written affidavitstating that the seller has paid each of the seller's contractors, laborers,or materialmen in full for all labor and materials provided to the sellerthrough the date specified in the affidavit for any construction of improvementson the real property and that the seller is not indebted to any person,firm, or corporation by reason of any such construction through the datespecified in the affidavit. In the event that the seller has not paid each of the seller's contractors, laborers,or materialmen in full for labor and material provided through the datespecified in the affidavit, the seller shall state in the affidavit theamount owed and the name and, if known, the address and telephone numberof each contractor, laborer, or materialman to whom the payment is owed.
The affidavit may include:
(1) a waiver or release of lien rights by the affiant thatis conditioned on the receipt of actual payment or collection of fundswhen payment is made by check or draft;
(2) a warranty or representation that certain bills or classes ofbills will be paid by the affiant from funds paid in reliance on the affidavit;and
(3) an indemnification by the affiant for any loss or expense resultingfrom false or incorrect information in the affidavit.
A person, including a seller, commits an offense if the person intentionally,knowingly, or recklessly makes a false or misleading statement in an affidavitunder this section. An offense under this section is a misdemeanor. A personadjudged guilty of an offense under this section shall be punished by afine not to exceed $4,000 or confinement in jail for a term not to exceedone year or both a fine and confinement. A person may not receive communitysupervision for the offense.
A person signing an affidavit under this section is personally liablefor any loss or damage resulting from any false or incorrect informationin the affidavit. § 53.085.
Procedure to Claim Lien - Filing of Affidavit: Except as otherwise provided, the person claiming the lien must file anaffidavit with the county clerk of the county in which the property islocated or into which the railroad extends not later than the 15th dayof the fourth calendar month after the day on which the indebtedness accrues. A person claiming a lien arising from a residential construction projectmust file an affidavit with the county clerk of the county in which theproperty is located not later than the 15th day of the third calendar monthafter the day on which the indebtedness accrues. 53.052. See Forms TX-01-09,TX-01A-09, TX-01B-09, TX-01C-09 and TX-01D-09.
Contents of Affidavit: The affidavitmust be signed by the person claiming the lien or by another person onthe claimant's behalf and must contain substantially:
(1) a sworn statement of the amount ofthe claim;
(2) the name and last known address ofthe owner or reputed owner;
(3) a general statement of the kind ofwork done and materials furnished by the claimant and, for a claimant otherthan an original contractor, a statement of each month in which the workwas done and materials furnished for which payment is requested;
(4) the name and last known address ofthe person by whom the claimant was employed or to whom the claimant furnishedthe materials or labor;
(5) the name and last known address ofthe original contractor;
(6) a description, legally sufficient foridentification, of the property sought to be charged with the lien;
(7) the claimant's name, mailing address,and, if different, physical address; and
(8) for a claimant other than an originalcontractor, a statement identifying the date each notice of the claim wassent to the owner and the method by which the notice was sent.
The claimant may attach to the affidavit a copy of any applicablewritten agreement or contract and a copy of each notice sent to the owner.
The affidavit is not required to set forth individual items of workdone or material furnished or specially fabricated. The affidavit may useany abbreviations or symbols customary in the trade. 53.054. See FormsTX-01-09, TX-01A-09, TX-01B-09, TX-01C-09 and TX-01D-09.
Notice of Filed Affidavit: A person whofiles an affidavit must send a copy of the affidavit by registered or certifiedmail to the owner or reputed owner at the owner's last known business orresidence address not later than the fifth day after the date the affidavitis filed with the county clerk.
If the person is not an original contractor, the person must alsosend a copy of the affidavit to the original contractor at the originalcontractor's last known business or residence address within the same period.53.055.
Accrual of Indebtedness: Indebtedness accrueson a contract under which a plan or plat is prepared, labor was performed,materials furnished, or specially fabricated materials are to be furnishedin accordance with the provisions below.
Indebtedness to an original contractor accrues:
(1) on the last day of the month in whicha written declaration by the original contractor or the owner is receivedby the other party to the original contract stating that the original contracthas been terminated; or
(2) on the last day of the month in whichthe original contract has been completed, finally settled, or abandoned.
Indebtedness to a subcontractor, or to any person not covered above,who has furnished labor or material to an original contractor or to anothersubcontractor accrues on the last day of the last month in which the laborwas performed or the material furnished.
Indebtedness for specially fabricated material accrues:
(1) on the last day of the last month inwhich materials were delivered;
(2) on the last day of the last month inwhich delivery of the last of the material would normally have been requiredat the job site; or
(3) on the last day of the month of anymaterial breach or termination of the original contract by the owner orcontractor or of the subcontract under which the specially fabricated materialwas furnished.
A claim for retainage accrues on the last day of the month in whichall work called for by the contract between the owner and the originalcontractor has been completed, finally settled, or abandoned. 53.053.
Derivative Claimant: Notice to Owner or Original Contractor: Except as provided by below dealing with residential construction contracts,a claimant other than an original contractor must give the notice prescribedby this section for the lien to be valid.
If the lien claim arises from a debt incurred by a subcontractor,the claimant must give to the original contractor written notice of theunpaid balance. The claimant must give the notice not later than the 15thday of the second month following each month in which all or part of theclaimant's labor was performed or material delivered. The claimant mustgive the same notice to the owner or reputed owner and the original contractornot later than the 15th day of the third month following each month inwhich all or part of the claimant's labor was performed or material orspecially fabricated material was delivered.
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 copyto the original contractor, in accordance with the paragraph above.
To authorize the owner to withhold funds, the notice to the ownermust state that if the claim remains unpaid, the owner may be personallyliable and the owner's property may be subjected to a lien unless:
(1) the owner withholds payments from thecontractor for payment of the claim; or
(2) the claim is otherwise paid or settled.
The notice must be sent by registered or certified mail and mustbe addressed to the owner or reputed owner or the original contractor,as applicable, at his last known business or residence address.
A copy of the statement or billing in the usual and customary formis sufficient as notice under this section. § 53.056. See Form TX-08-09or TX-08A-09.
Derivative Claimant: Notice for Contractual Retainage Claim:
(a) A claimant may give notice under this section instead of or in additionto notice under Section 53.056 or 53.252 if the claimant is to labor, furnishlabor or materials, or specially fabricate materials under an agreementwith an original contractor or a subcontractor providing for retainage.
(b) The claimant must give the owner orreputed owner notice of the retainage agreement not later than the 15thday of the second month following the delivery of materials or the performanceof labor by the claimant that first occurs after the claimant has agreedto the contractual retainage. If the agreement is with a subcontractor,the claimant must also give notice within that time to the original contractor.
(c) The notice must contain:
(1) the sum to be retained;
(2) the due date or dates, if known; and
(3) a general indication of the natureof the agreement.
(d) The notice must be sent by registeredor certified mail to the last known business or residence address of theowner or reputed owner or the original contractor, as applicable.
(e) If a claimant gives notice under thissection and Section 53.055 or, if the claim relates to a residential constructionproject, under this section and Section 53.252, the claimant is not requiredto give any other notice as to the retainage. § 53.057.
Authority to Withhold Funds for Benefit of Claimants: Ifan owner receives notice under Section 53.056, 53.057, 53.058, 53.252,or 53.253, the owner may withhold from payments to the original contractoran amount necessary to pay the claim for which he receives notice.
If notice is sent in a form that substantially complies with Section53.056 or 53.252, the owner may withhold the funds immediately on receiptof the notice.
If notice is sent under Section 53.057, the owner may withhold fundsimmediately on receipt of a copy of the claimant's affidavit prepared inaccordance with Sections 53.052 through 53.055.
If notice is sent under Section 53.058, the owner may withhold fundsimmediately on receipt of the notices sent under Subsection (e) of thatsection. If notice is sent as provided by Section 53.253(b), the ownermay withhold funds immediately on receipt of the notice sent as requiredby Section 53.252. § 53.081.
Time for Which Funds are Withheld: Unlesspayment is made under Section 53.083 or the claim is otherwise settled,discharged, indemnified under Subchapter H or I, or determinedto be invalid by a final judgment of a court, the owner shall retain thefunds withheld until:
(1) the time for filing the affidavit ofmechanic's lien has passed; or
(2) if a lien affidavit has been filed,until the lien claim has been satisfied or released. § 53.082.
Payment to Claimant on Demand: The claimantmay make written demand for payment of the claim to an owner authorizedto withhold funds under this subchapter. The demand must give notice tothe owner that all or part of the claim has accrued under Section 53.053or is past due according to the agreement between the parties.
The claimant must send a copy of the demand to the original contractor.The original contractor may give the owner written notice that the contractorintends to dispute the claim. The original contractor must give the noticenot later than the 30th day after the day he receives the copy of the demand. If the originalcontractor does not give the owner timely notice, he is considered to haveassented to the demand and the owner shall pay the claim.
The claimant's demand may accompany the original notice of nonpaymentor of a past-due claim and may be stamped or written in legible form onthe face of the notice.
Unless the lien has been secured, the demand may not be made afterexpiration of the time within which the claimant may secure the lien forthe claim. § 53.083. See Form TX-014-09 or TX-014A-09.
Owner's Liability: Except for the amountrequired to be retained under Subchapter E, the owner is not liable forany amount paid to the original contractor before the owner is authorizedto withhold funds under this subchapter.
If the owner has received the notices required by Subchapter C orK, if the lien has been secured, and if the claim has been reduced to finaljudgment, the owner is liable and the owner's property is subject to aclaim for any money paid to the original contractor after the owner was authorized to withholdfunds under this subchapter. The owner is liable for that amount in additionto any amount for which he is liable under Subchapter E. § 53.084.
Required Retainage: During the progressof work under an original contract for which a mechanic's lien may be claimedand for 30 days after the work is completed, the owner shall retain:
(1) 10 percent of the contract price of the work to theowner; or
(2) 10 percent of the value of the work, measured by the proportionthat the work done bears to the work to be done, using the contract priceor, if there is no contract price, using the reasonable value of the completedwork.
In this section, "owner" includes the owner's agent, trustee, or receiver. §53.101.
Payment Secured by Retainage: The retainedfunds secure the payment of artisans and mechanics who perform labor orservice and the payment of other persons who furnish material, materialand labor, or specially fabricated material for any contractor, subcontractor,agent, or receiver in the performance of the work. § 53.102.
Lien on Retained Funds: A claimant hasa lien on the retained funds if the claimant:
(1) sends the notices required by this chapter in the time and mannerrequired; and
(2) files an affidavit claiming a lien not later than the 30thday after the work is completed. § 53.103.
Preferences:Individual artisans and mechanicsare entitled to a preference to the retained funds and shall share proportionatelyto the extent of their claims for wages and fringe benefits earned.
After payment of artisans and mechanics who are entitled to a preferenceunder the paragraph above, other participating claimants share proportionatelyin the balance of the retained funds. § 53.104.
Owner's Liability for Failure to Retain: Ifthe owner fails or refuses to comply with this subchapter, the claimantscomplying with this chapter have a lien, at least to the extent of the amount that should have been retained fromthe original contract under which they are claiming, against the house,building, structure, fixture, or improvement and all of its propertiesand against the lot or lots of land necessarily connected.
The claimants share the lien proportionately in accordance withthe preference provided by Section 53.104. § 53.105.
Affidavit of Completion: An owner may filewith the county clerk of the county in which the property is located anaffidavit 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 thereal property on which the improvements are located;
(4) a description of the improvements furnished under the originalcontract;
(5) a statement that the improvements under the original contracthave been completed and the date of completion; and
(6) a conspicuous statement that a claimant may not have a lienon retained funds unless the claimant files the affidavit claiming a liennot later than the 30th day after the date of completion.
A copy of the affidavit must be sent by certified or registeredmail to the original contractor not later than the date the affidavit isfiled and to each claimant who sends a notice of lien liability to theowner under Section 53.056, 53.057, 53.058, 53.252, or 53.253 not later than the date the affidavit is filedor the 10th day after the date the owner receives the notice of lienliability, whichever is later.
A copy of the affidavit must also be sent to each person who furnisheslabor or materials for the property and who furnishes the owner with awritten request for the copy. The owner must furnish the copy to the personnot later than the date the affidavit is filed or the 10th day after the date the requestis received, whichever is later.
Except as provided by this subsection, an affidavit filed underthis section on or before the 10th day after the date of completion ofthe improvements is prima facie evidence of the date the work under theoriginal contract is completed for purposes of this subchapter. If theaffidavit is filed after the 10th day after the date of completion, thedate of completion for purposes of this subchapter is the date the affidavitis filed. This subsection does not apply to a person to whom the affidavit was not sent as required by this section.§ 53.106. SeeForm TX-04-09 or TX-04A-09.
Preference Over Other Creditors: All subcontractors,laborers, and materialmen who have a mechanic's lien have preference overother creditors of the original contractor. § 53.121.
Equality of Mechanic's Liens: Exceptas provided by Subchapter E and Section 53.124(e), perfected mechanic'sliens are on equal footing without reference to the date of filing theaffidavit claiming the lien.
If the proceeds of a foreclosure sale of property are insufficientto discharge all mechanic's liens against the property, the proceeds shall be paid pro rata on the perfected mechanic's lienson which suit is brought.
This chapter does not affect the contract between the owner andthe original contractor as to the amount, manner, or time of payment ofthe contract price. § 53.122.
Priority of Mechanic's Lien Over Other Liens: Exceptas provided by this section, a mechanic's lien attaches to the house, building,improvements, or railroad property in preference to any prior lien, encumbrance, or mortgage on theland on which it is located, and the person enforcing the lien may havethe house, building, improvement, or any piece of the railroad propertysold separately.
The mechanic's lien does not affect any lien, encumbrance, or mortgageon the land or improvement at the time of the inception of the mechanic'slien, and the holder of the lien, encumbrance, or mortgage need not bemade a party to a suit to foreclose the mechanic's lien. § 53.123.
Enforcement of Remedies Against Money Due Original Contractoror Subcontractor: A creditor of an original contractormay not collect, enforce a security interest against, garnish, or levyexecution on the money due the original contractor or the contractor'ssurety from the owner, and a creditor of a subcontractor may not collect,enforce a security interest against, garnish, or levy execution on themoney due the subcontractor, to the prejudice of the subcontractors, mechanics,laborers, materialmen, or their sureties.
A surety issuing a payment bond or performance bond in connectionwith the improvements has a priority claim over other creditors of itsprincipal to contract funds to the extent of any loss it suffers or incurs.That priority does not excuse the surety from paying any obligations thatit may have under its payment bonds. § 53.151.
Release of Claim or Lien: When a debt forlabor or materials is satisfied or paid by collected funds, the personwho furnished the labor or materials shall, not later than the 10th dayafter the date of receipt of a written request, furnish to the requestingperson a release of the indebtedness and any lien claimed, to the extentof the indebtedness paid. An owner, the original contractor, or any personmaking the payment may request the release.
A release of lien must be in a form that would permit it to be filedof record. § 53.152. See Form TX-05-09 or TX-05A-09
Defense of Actions:If an affidavit claiminga mechanic's lien is filed by a person other than the original contractor,the original contractor shall defend at his own expense a suit brought on the claim.
If the suit results in judgment on the lien against the owner orthe owner's property, the owner is entitled to deduct the amount of thejudgment and costs from any amount due the original contractor. If theowner has settled with the original contractor in full, the owner is entitled to recover from the originalcontractor any amount paid for which the original contractor was originallyliable. § 53.153.
Foreclosure: A mechanic's lien may be foreclosedonly on judgment of a court of competent jurisdiction foreclosing the lienand ordering the sale of the property subject to the lien. § 53.154.
Transfer of Property Sold: If the house,building, improvement, or any piece of railroad property is sold separately,the officer making the sale shall place the purchaser in possession. Thepurchaser is entitled to a reasonable time after the date of purchase withinwhich to remove the purchased property. § 53.155.
Costs and Attorney's Fees: In any proceedingto foreclose a lien or to enforce a claim against a bond issued under SubchapterH, I, or J1 or in any proceeding to declare that any lien or claim is invalidor unenforceable in whole or in part, the court may award costs and reasonableattorney's fees as are equitable and just. § 53.156.
Discharge of Lien: A mechanic's lien oraffidavit claiming a mechanic's lien filed under Section 53.052 may bedischarged of record by:
(1) recording a lien release signed by the claimant underSection 53.152;
(2) failing to institute suit to foreclose the lien in the countyin which the property is located within the period prescribed by Section53.158, 53.175, or 53.208;
(3) recording the original or certified copy of a final judgmentor 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 underSection 53.160 and a certificate from the clerk of the court that statesthat no bond or deposit as described by Section 53.161 was filed by theclaimant within 30 days after the date the order was entered. § 53.157.
Period for Bringing Suit to Foreclose Lien: Exceptas provided by Subsection (b), suit must be brought to foreclose the lienwithin two years after the last day a claimant may file the lien affidavit under Section 53.052 or withinone year after completion, termination, or abandonment of the work underthe original contract under which the lien is claimed, whichever is later.
For a claim arising from a residential construction project, suitmust be brought to foreclose the lien within one year after the last daya claimant may file a lien affidavit under Section 53.052 or within oneyear after completion, termination, or abandonment of the work under the original contract under whichthe lien is claimed, whichever is later. § 53.158.
Obligation to Furnish Information: An owner,on written request, shall furnish the following information within a reasonabletime, but not later than the 10th day after the date the request is received, to any person furnishinglabor or materials for the project:
(1) a description of the real property being improved legallysufficient to identify it;
(2) whether there is a surety bond and if so, the name and lastknown address of the surety and a copy of the bond; and
(3) whether there are any prior recorded liens or security interestson the real property being improved and if so, the name and address ofthe person having the lien or security interest. See TX-03-09 or TX-03A-09.
An original contractor, on written request by a person who furnishedwork under the original contract, shall furnish to the person the followinginformation within a reasonable time, but not later than the 10th day afterthe date the request is received:
(1) the name and last known address of the person to whomthe original contractor furnished labor or materials for the constructionproject; and
(2) whether the original contractor has furnished or has been furnisheda payment bond for any of the work on the construction project and if so,the name and last known address of the surety and a copy of the bond. SeeTX-03B-09 or TX-03C-09.
A subcontractor, on written request by an owner of the property beingimproved, the original contractor, a surety on a bond covering the originalcontract, or any person furnishing work under the subcontract, shall furnishto the person the following information within a reasonable time, but notlater than the 10th day after the date the request is received:
(1) the name and last known address of each person fromwhom the subcontractor purchased labor or materials for the constructionproject, other than those materials that were furnished to the projectfrom the subcontractor's inventory;
(2) the name and last known address of each person to whom the subcontractorfurnished labor or materials for the construction project; and
(3) whether the subcontractor has furnished or has been furnisheda payment bond for any of the work on the construction project and if so,the name and last known address of the surety and a copy of the bond. SeeTX-03D-09 or TX-03E-09.
Not later than the 30th day after the date a written request is receivedfrom the owner, the contractor under whom a claim of lien or under whoma bond is made, or a surety on a bond on which a claim is made, a claimantfor a lien or under a bond shall furnish to the requesting person a copy of any applicablewritten agreement, purchase order, or contract and any billing, statement,or payment request of the claimant reflecting the amount claimed and thework performed by the claimant for which the claim is made. If requested,the claimant shall provide the estimated amount due for each calendar monthin which the claimant has performed labor or furnished materials.
If a person from whom information is requested does not have a directcontractual relationship on the project with the person requesting theinformation, the person from whom information is requested, other thana claimant requested to furnish information under Subsection (d), may require payment of the actualcosts, not to exceed $25, in furnishing the requested information.
A person, other than a claimant requested to furnish informationunder Subsection (d), who fails to furnish information as required by thissection is liable to the requesting person for that person's reasonableand necessary costs incurred in procuring the requested information. § 53.159.
SPECIAL PROVISIONS FOR RESIDENTIAL CONSTRUCTION PROJECTS
Procedures for Residential Construction Projects: A person must comply with this subchapter in addition to the otherapplicable provisions of this chapter to perfect a lien that arises froma claim resulting from a residential construction project. § 53.251.
Derivative Claimant: Notice to Owner or Original Contractor: A claimant other than an original contractor must give the notice prescribedby this section for the lien to be valid. If the property that is the subjectof the lien is a homestead, the notice must also comply with Section 53.254.
The claimant must give to the owner or reputed owner and the originalcontractor written notice of the unpaid balance. The claimant must givethe notice not later than the 15th day of the second month following eachmonth in which all or part of the claimant's labor was performed or material or specially fabricatedmaterial was delivered.
To authorize the owner to withhold funds under Subchapter D, thenotice to the owner must state that if the claim remains unpaid, the ownermay be personally liable and the owner's property may be subjected to alien unless: (1) the owner withholds payments from the contractor for paymentof the claim; or (2) the claim is otherwise paid or settled.
The notice must be sent by registered or certified mail and mustbe addressed to the owner or reputed owner and the original contractor,as applicable, at the person's last known business or residence address.
A copy of the statement or billing in the usual and customary formis sufficient as notice under this section. § 53.252. SeeTX-08-09 or TX-08A-09.
Homestead: To fix a lien on a homestead,the person who is to furnish material or perform labor and the owner mustexecute a written contract setting forth the terms of the agreement.
The contract must be executed before the material is furnished orthe labor is performed.
If the owner is married, the contract must be signed by both spouses.
If the contract is made by an original contractor, the contractinures to the benefit of all persons who labor or furnish material forthe original contractor.
The contract must be filed with the county clerk of the county inwhich the homestead is located. The county clerk shall record the contract inrecords kept for that purpose.
An affidavit for lien filed under this subchapter that relates toa homestead must contain the following notice conspicuously printed, stamped,or typed in a size equal to at least 10-point boldface or the computerequivalent, at the top of the page:
"NOTICE: THIS IS NOT A LIEN. THIS IS ONLYAN AFFIDAVIT CLAIMING A LIEN."
For the lien on a homestead to be valid, the notice required tobe given to the owner under Section 53.252 must include or have attachedthe following statement:
"If a subcontractor or supplier who furnishesmaterials or performs labor for construction of improvements on your propertyis not paid, your property may be subject to a lien for the unpaid amountif:
(1) after receiving notice of the unpaidclaim from the claimant, you fail to withhold payment to your contractorthat is sufficient to cover the unpaid claim until the dispute is resolved;or
(2) during construction and for 30 daysafter completion of construction, you fail to retain 10 percent of thecontract price or 10 percent of the value of the work performed by your contractor.
"If you have complied with the law regardingthe 10 percent retainage and you have withheld payment to the contractorsufficient 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 subcontractoror supplier, other than a person who contracted directly with you, willnot be a valid lien on your property. In addition, except for the required10 percent retainage, you are not liable to a subcontractor or supplierfor any amount paid to your contractor before you received written noticeof the claim." § 53.254. See FORM TX-010-09.
Disclosure Statement Required for Residential Construction Contract: Before a residential construction contract is executed by the owner, theoriginal contractor shall deliver to the owner a disclosure statement describedby this section. The failure of a contractor to comply with this sectiondoes not invalidate a lien under this chapter, a contract lien, or a deedof trust. § 53.255. See Form TX-011-09.
List of Subcontractors and Suppliers: Exceptas provided by Subsection (d), for the construction of improvements undera residential construction contract, the original contractor shall:
(1) furnish to the owner before the commencement of constructiona written list that identifies by name, address, and telephone number eachsubcontractor and supplier the contractor intends to use in the work tobe performed; and
(2) provide the owner with an updated list of subcontractors andsuppliers not later than the 15th day after the date a subcontractor orsupplier is added or deleted.
The list must contain the following notice conspicuously printed, stamped,or typed in a size equal to at least 10-point boldface or the computerequivalent:
"NOTICE: THIS LIST OF SUBCONTRACTORS ANDSUPPLIERS MAY NOT BE A FINAL LISTING. UNLESS YOU SIGN A WAIVER OF YOURRIGHT TO RECEIVE UPDATED INFORMATION, THE CONTRACTOR IS REQUIRED BY LAWTO SUPPLY UPDATED INFORMATION, AS THE INFORMATION BECOMES AVAILABLE, FOR EACH SUBCONTRACTOR OR SUPPLIER USED IN THE WORKPERFORMED ON YOUR RESIDENCE."
The failure of a contractor to comply with this section does notinvalidate a lien under this chapter, a contract lien, or a deed of trust.SeeForms TX-012-09.
An owner may waive the right to receive the list of subcontractorsand suppliers or any updated information required by this section onlyas provided by this subsection. The waiver must be in writing and may beincluded in the residential construction contract. If the waiver is notincluded as a provision of the residential construction contract,the separate waiver statement must be signed by the owner. The waiver mustbe conspicuously printed in at least 10-point bold-faced type and read substantially as required by statute. § 53.256. SeeForms TX-013-09.
Provisions Related to Closing of Loan for Construction of Improvements: If the owner is obtaining third-party financing for the constructionof improvements under a residential construction contract, the lender shalldeliver to the owner all documentation relating to the closing of the loannot later than one business day before the date of the closing. If a bona fide emergency or anothergood cause exists and the lender obtains the written consent of the owner,the lender may provide the documentation to the owner or the lender maymodify previously provided documentation on the date of closing.
The lender shall provide to the owner the disclosure statement describedby Section 53.255(b). The disclosure statement must be provided to theowner before the date of closing. If a bona fide emergency or another goodcause exists and the lender obtains the written consent of the owner, thelender may provide the disclosure statement at the closing. The lendershall retain a signed and dated copy of the disclosure statement with theclosing documents.
The failure of a lender to comply with this section does not invalidatea lien under this chapter, a contract lien, or a deed of trust.§ 53.257.SeeForm TX-011-09.
Disbursem*nts of Funds: At the time theoriginal contractor requests payment from the owner or the owner's lenderfor the construction of improvements under a residential construction contract,the original contractor shall provide to the owner a disbursem*nt statement.The statement may include any information agreed to by the owner and theoriginal contractor and must include at least the name and address of eachperson who subcontracted directly with the original contractor and whothe original contractor intends to pay from the requested funds. The originalcontractor shall provide the disbursem*nt statement: (1) in the manner agreed to in writing by the owner and originalcontractor; or (2) if no agreement exists, by depositingthe statement in the United States mail, first class, postage paid, andproperly addressed to the owner or by hand delivering the statement tothe owner before the original contractor receives the requested funds.
If the owner finances the construction of improvements through athird party that advances loan proceeds directly to the original contractor,the lender shall:
(1) obtain from the original contractor the signed disbursem*ntstatement required by Subsection (a) that covers the funds for which theoriginal contractor is requesting payment; and
(2) provide to the owner a statement of funds disbursed by thelender since the last statement was provided to the owner.
The lender shall provide to the owner the lender's disbursem*ntstatement and the disbursem*nt statement the lender obtained from the contractorbefore the lender disburses the funds to the original contractor. The disbursem*ntstatements may be provided in any manner agreed to by the lender and the owner.
The lender is not responsible for the accuracy of the informationcontained in the disbursem*nt statement obtained from the original contractor.
The failure of a lender or an original contractor to comply withthis section does not invalidate a lien under this chapter, a contractlien, or a deed of trust.
A person commits an offense if the person intentionally, knowingly,or recklessly provides false or misleading information in a disbursem*ntstatement required under this section. An offense under this section isa misdemeanor. A person adjudged guilty of an offense under this section shall be punished by afine not to exceed $4,000 or confinement in jail for a term not to exceedone year or both a fine and confinement. A person may not receive communitysupervision for the offense.§ 53.258.See Form TX-016-09
Final Bills - Paid Affidavit Required: Asa condition of final payment under a residential construction contract,the original contractor shall, at the time the final payment is tendered,execute and deliver to the owner, or the owner's agent, an affidavit statingthat the original contractor has paid each person in full for all laborand materials used in the construction of improvements on the real property.If the original contractor has not paid each person in full, the originalcontractor shall state in the affidavit the amount owed and the name and,if known, the address and telephone number of each person to whom a paymentis owed.
The seller of any real property on which a structure of not morethan four units is constructed and that is intended as the principal placeof residence for the purchaser shall, at the closing of the purchase ofthe real property, execute and deliver to the purchaser, or the purchaser'sagent, an affidavit stating that the seller has paid each person in fullfor all labor and materials used in the construction of improvements onthe real property and that the seller is not indebted to any person byreason of any construction. In the event that the seller has not paid eachperson in full, the seller shall state in the affidavit the amount owedand the name and, if known, the address and telephone number of each personto whom a payment is owed.
A person commits an offense if the person intentionally, knowingly,or recklessly makes a false or misleading statement in an affidavit underthis section. An offense under this section is a misdemeanor. A personadjudged guilty of an offense under this section shall be punished by afine not to exceed $4,000 or confinement in jail for a term not to exceedone year or both a fine and confinement. A person may not receive communitysupervision for the offense.
A person signing an affidavit under this section is personally liablefor any loss or damage resulting from any false or incorrect informationin the affidavit. § 53.259.See Form TX-014A-09 or TX-015-09.
Conveyance to Contractor Not Required: Anoriginal contractor may not require an owner of real property to conveythe real property to the original contractor or an entity controlled bythe original contractor as a condition to the performance of the residentialconstruction contract for improvements to the real property.§ 53.260.
