Results 1 to 6 of 6
  1. #1
    Join Date
    Jan 2015
    Location
    Harris Co, TX
    Posts
    3

    Default How to Dispute a Lien Filed by a Subcontractor

    My question involves a consumer law issue in the State of: TX

    I purchase a home in 2008 and immediately had a pool built. I financed the pool as part of the original mortgage. Towards the end of construction I made a change order to have the pool coating changed. The prime contractor took a check for the whole amount of the change, claiming the subcontractor would not do the work without payment in full. The subcontractor did show up and do the work as expected. Immediately thereafter the prime contractor went out of business.

    I will admit to being a little naive at the time - I did not know about the TX requirements on withholding 10% of the payments and I should have been more suspicious of the contractor's motives requiring payment in full but that is water under the bridge now. I was relatively lucky as I only had to finish off the landscaping and other small stuff despite the builder going out of business!

    Anyway, the work performed by the subcontractor was completed in early November 2008. A few days later (November 15, 2008) I received a letter from the subcontractor by certified mail demanding payment pursuant to 53.083 of the Texas Property Code. We continued to pursue the prime contractor to pay the sub but were unsuccessful. On March 19, 2009 we received a letter from an attorney demanding payment in full and also stating that unless we disputed this they would assume the debt was valid. We responded in writing that we did not think the debt was invalid.

    We never received any more paperwork of any form from any of the parties (prime contractor, subcontractor or their legal firm).

    Now when I search the county property records I see that there is a "Homestead Affidavit Claiming a Lien" on my property. The line below that title states "Affidavit Claiming Mechanics' and Materialmen's Lien". This was filed in December 2008.

    What are my options at this point - I would like to sell the property this year and this is obviously a problem. I thought I'd seen somewhere that a mechanic's lien expires after 2 years and a constitutional lien expires after 4 years. Is there a process to remove them?

    Many thanks for anyone's patience in getting to this point and for any help you can offer!

    UKMatt

  2. #2
    Join Date
    Nov 2013
    Posts
    7,056

    Default Re: Subcontractor Placed (What I Think is an Invalid) Lien on My Property

    Here is the Texas mechanics lien law statute. You should read it to see if the lien was placed in accordance with the law and that all the timeframes were met.

    I hope you have that cancelled check that shows you paid the contractor along with a change order. That in of itself will not get the lien canceled. You will likely need an attorney to resolve it. This happened 7 years ago. Is the subcontractor or any successors still in business.

  3. #3
    Join Date
    Jan 2015
    Location
    Harris Co, TX
    Posts
    3

    Default Re: Subcontractor Placed (What I Think is an Invalid) Lien on My Property

    Thanks budwad for the quick response!

    Quote Quoting budwad
    View Post
    Here is the Texas mechanics lien law statute. You should read it to see if the lien was placed in accordance with the law and that all the timeframes were met.
    I can say for sure that this part of the code was not honored - we never received a copy:
    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.


    Quote Quoting budwad
    View Post
    This happened 7 years ago. Is the subcontractor or any successors still in business.
    Unfortunately the subcontractor in this case is a fairly large company that is definitely still in business.

    Is there no statute of limitations on a lien after which they expire?

    Thanks
    Matt

  4. #4
    Join Date
    Nov 2013
    Posts
    7,056

    Default Re: Subcontractor Placed (What I Think is an Invalid) Lien on My Property

    I believe it is one year for a mechanics lien.

    § 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 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) 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.

    Added by Acts 1989, 71st Leg., ch. 1138, § 23, eff. Sept. 1,
    1989. Amended by Acts 1997, 75th Leg., ch. 526, § 16, eff. Sept.
    1, 1997; Acts 1999, 76th Leg., ch. 889, § 4, eff. Sept. 1, 1999.
    You mean you didn't read the entire statute?

  5. #5
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: How to Dispute a Lien Filed by a Subcontractor

    From what you've told us, the time limit for taking action on the lien has long expired:
    Quote Quoting Texas Property Code, Sec. 53.157. Discharge of Lien.
    A 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 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 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.
    Quote Quoting Texas Property Code, 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 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) 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.
    I suggest asking the registrar if it is possible to have the lien be discharged of record based upon Sec. 53.157 without your having to go to court.

  6. #6
    Join Date
    Jan 2015
    Location
    Harris Co, TX
    Posts
    3

    Default Re: How to Dispute a Lien Filed by a Subcontractor

    Quote Quoting Mr. Knowitall
    View Post
    From what you've told us, the time limit for taking action on the lien has long expired:


    I suggest asking the registrar if it is possible to have the lien be discharged of record based upon Sec. 53.157 without your having to go to court.
    Thanks for the help - last time we approached the office we were given clear direction that they don't make determinations as to what is valid or invalid etc... maybe court is in my future... or maybe I offer the subcontractor a fee to remove the lien...

    UKMatt

    - - - Updated - - -

    Quote Quoting budwad
    View Post
    I believe it is one year for a mechanics lien.

    You mean you didn't read the entire statute?
    I read it enough to know it's hardly homeowner friendly!!!

    UKMatt

    1. Sponsored Links
       

Similar Threads

  1. Contractors and Subcontractors: Subcontractor is Threatening to Impose a Lien if Not Paid Fully for Inadequate Work
    By christinajo1983 in forum Construction, Repair and Renovation
    Replies: 1
    Last Post: 04-18-2014, 05:06 AM
  2. Payment: Subcontractor Unresponsive Regarding Lien Release
    By ChampagneMD in forum Construction, Repair and Renovation
    Replies: 1
    Last Post: 12-09-2013, 02:31 PM
  3. Liens and Encumbrances: Subcontractor Lien on Residence
    By dsmistry in forum Real Estate Ownership and Title
    Replies: 1
    Last Post: 04-25-2011, 07:11 PM
  4. Lien on Property Due to Subcontractor Not Paying Supply House
    By Guzz64 in forum Construction, Repair and Renovation
    Replies: 2
    Last Post: 09-23-2010, 07:15 PM
  5. Business Disputes: Dispute Between Contractor and Subcontractor
    By adtman in forum Business Law
    Replies: 1
    Last Post: 10-10-2009, 06:05 PM
 
 
Sponsored Links

Legal Help, Information and Resources