I hired a contractor to paint and replace chimney cap. Contractor finished work I paid. I get letter from chimney company saying they weren’t paid and I owe them and if I don’t pay they to file a lien! Can they do this and win?
1 reply
Oct 15, 2019
Subcontractors and suppliers need not have a contract directly with the property owner in order to have mechanics lien rights. However, there are more detailed considerations that come into play when determining whether an individual mechanics lien would be valid and enforceable.
Notice requirements
For one, note that specific notices must be sent in order to preserve Texas mechanics lien rights. And, if a subcontractor or supplier is required to send these notices, but fails to do so, they'll generally not be entitled to file a mechanics lien. More on notice requirements here: Texas Preliminary Notice Guide and FAQs.
Texas homestead requirements
Note also that there are specific - and strenuous - requirements that must be followed for lien rights to exist. For lien rights to exist on a homestead project, the original contract (with the prime contractor) must be in writing, it must be executed and signed before work, if the owner married - both spouses must sign, and finally - the contract must be filed with the county clerk. And, if any of these requirements weren't met by the prime contractor, their subs and suppliers may not be entitled to file lien claims.
Contractor responsibility
When a contractor has been paid in full, that contractor is responsible for defending the property owner from any lien claims filed by subcontractors and suppliers on the project under § 53-153 of the Texas Property Code. Further, if the lien dispute continues to a judgment against the owner, the owner is entitled to recover payments they've made to their contractor in order to pay the lien claimant.
So, reminding the contractor that they're responsible for paying the lien claim and defending any potential lawsuits over the claim could convince them to do the right thing and pay their subs and suppliers.
Bottom line
Subs and suppliers can often file mechanics liens against property owners, even when the project's GC has been paid in full. However, there are still a multitude of other mechanics lien requirements and owner protections in place. And, just because a lien is threatened or even filed doesn't mean it will be successful or valid.
Here are some additional resources I think will be helpful here:
(1) I Just Received a Notice of Intent to Lien – What Should I Do Now?(2) A Mechanics Lien Was Filed on My Property – What Do I Do Now?