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about Notice of intend to file a lien

Texas

My contractor send us this notice . his work related for cutting plant ,clean pool and change the skimmer. but the work hasn't been preformed. we have pictures and proofs for that. And the contractor confirmed in written he won't do it and refund us money. My question is if he can file a lien on my property?

2 replies

Jan 25, 2021

Hi Stella,

A contractor can always go down to the county office and file a lien. The question becomes whether the lien is valid. Under these circumstances, the lien is probably not valid. The downside is that the legal process required to strike an invalid lien can be costly. Basically you have to sue the contractor and seek a judgment for a fraudulent lien. The good news is that, if you win, you can go after this contractor for your attorney's fees. 

Due to this expensive procedure, I always recomend to my clients that they try to work these disputes out prior to resorting to litigation, but as I read your description, that may not be possible here.

Very best,

Ben House

281-762-1377

ben@houseperron.com

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Jan 25, 2021

I assume that the work was for your house, and that your house is your homestead. For the house to be your homestead, the house has to be titled in your name and you must live there. The contractor that contracted with you is called the "original contractor" under Chapter 53 of the Texas Property Code (which governs the propriety of mechanic's liens). If the property at issue is your homestead, then for a contractor to be entitled to file a valid mechanic's lien against your homestead, he would have to comply with Chapter 53 of the Texas Property Code. Among the requirements are a written contract signed by the owners of the homestead (husband and wife), certain homestead warnings, and filing of the contract with the county clerk. Those formalities do not usually happen. Without them, any attempted mechanic's lien filing would be invalid.

If the original contractor did not properly perfect a homestead mechanic's lien contract, then no contractor, subcontractor or supplier can file a valid mechanic's lien against your homestead. You should write a letter by certified mail to the lien claimant to demand that the lien be released, pointing out that the property is your homestead, and that the original contractor has not perfected a homestead mechanic's lien. If the lien claimant does not voluntarily release the lien, he could be liable for a fraudulent lien under Chapter 12 of the Texas Civil Practice & Remedies Code. Chapter 12 can award damages of $10,000 or actual damages whichever is greater, plus attorney's fees.

If a lien is filed, you can also demand that the lien be released under Section 53.160 of the Texas Property Code, which provides for a summary procedure (no trial necessary) for the removal of an invalid lien on someone's homestead.

Good luck.

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