I hired a guy to fix a few things around my house prior to listing it for sale. He pressure washed half of my house but charged me full price for it. I had to go behind him and finish it myself. He also didn't do a good job on a couple of other items and the price was adjusted by his wife accordingly, except for the pressure washing. I deducted $75 off the total for not fully pressure washing my house, but sent him a check for everything else on the list. This was a small job. They charged me $1,610 and I wrote the check for $1,535. They have not deposited my check and it's been over a week. I emailed them asking if they received the check and they have not responded. Can they just lie and say they never received my check and file a mechanics lien for the entire amount? I live in Texas if that helps.
Hello,
Of course he can lie. Nothing stops him from lying or filing a fraudulent lien but cashing that check is far more efficient than fighting you for $75 in court where, at minimum, he's faced with a $150 filing fee.
Send them a text message or email saying "If I don't have a response in 3 days, I am going to cancel the check and you can come pick up cash or I can send you a cashier's check." That should get a response.
And if you need to, cancel the check and send them a cashier's check (via Certified Mail) that says "Full and final settlement" in the notes section.
E. Aaron Cartwright III
214.789.1354
Aaron@EACLawyer.com
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. If the worker threatens to file a mechanic's lien, you should respond by writing a letter by certified mail to the claimant to demand that no lien be filed (or if one was filed 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.
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.
If you have to reissue the check, write "full and final payment" in the notation area on the front of the check and at the top in the endorsement area on the back of the check.
Good luck.
If the contractor provided a quote, and you permitted the contractor to go to work, then arguably the quote sets the basis of an oral agreement for the contractor to do the work.
The county clerk simply records mechanic's liens that are in proper form, without regard to the propriety of the lien claim.
If the contractor files a mechanic's lien, consider sending the certified letter I mentioned above.
Good luck.
If the contractor files an invalid lien, first write the certified letter to the contractor discussed above.
If a lien was filed, the lien likely would be flagged by the title company retained for the buyer (assuming there is lender financing), and that could cause a problem for the closing of the sale. The title company may be willing to escrow a portion of the sales proceeds to cover the lien. Or, you can file a bond to indemnify against lien to remove the lien from your property.
You may consider retaining a construction attorney to help fight the lien. It may be a lot cheaper to pay the extra money that the contractor is demanding or to negotiate a split of the amount in dispute, and avoid having to retain an attorney to fight the lien.
Good luck.
You are welcome.
Hello again,
No, he would not be able to get away with it. You have the ability to hurt him in court. There are some large fines and penalties for issues such as this.
Original Contractors, the contractors that you hire directly, do not have to provide notice. Subcontractors do.
There are some processes, such as the ones Mr. Erikson described, that provide better defenses against the wayward contractor.
A lien is a cloud on title so it will interfere with the sale of the house but you can obtain a mechanic's lien release bond. If you have a good relationship with your title company, there may be a chance of escrow but they have to trust you quite a bit.
E. Aaron Cartwright III
214.789.1354
Aaron@EACLawyer.com