My grandfather had a contractor lien put on his property in 1989, my grand father has been deceased since 2004. We can find the company or contractor/
If you can find the company or contractor, then request that the company or contractor release the lien. You should prepare a release of lien for the company or contractor to make it convenient.
A mechanic's lien becomes unenforceable against residential property after one year. So the lien is at this point invalid.
I assume that the work was for your father's house, and that the house was his homestead. For the house to be his homestead, the house had to be titled in his name and he must have lived there. The contractor that contracted with him 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 was your father's homestead, then for a contractor to be entitled to file a valid mechanic's lien against his 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 the homestead. You should write a letter by certified mail to the lien claimant to demand that the lien be released, pointing out that the statute of limitations for enforcing the lien has lapsed, the property was homestead, and that the original contractor did not perfect 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.
So, it is good that you can find the company or contractor to make the demand.
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.
Retain a construction attorney to evaluate your situation and to provide advice.
Good luck.
Hello,
Can or cannot?
No matter which one, a Summary Motion to Remove Invalid Lien is in order.
If you can find them, send a letter with a release of lien enclosed and ask them to sign. If you cannot find them or they do not answer, you will need to sue in District Court to have the lien removed as it is way past the deadline.
E. Aaron Cartwright III
214.789.1354
Aaron@EACLawyer.com