We are a Paul Davis Restoration Franchise in the Austin area and are not familiar as t how to pursue filing a lien on a customer who we did reconstruction work and owes us 20K for the work and now find out that he is selling or has a pending sale on his residence in Hays County TX. What can we do, is it too late to file a lien prior to his selling the residence, what can you assist us with on this matter.?
If you contracted directly with the owner, you have two types of liens available to you, but there's a catch. Homestead protections against liens in Texas are extremely onerous and in my experience the requirements for filing same are almost never met. However, that does not mean you do not have a legal claim against the homeowner regardless of whether he sells the home. This is about all I can tell you based on the facts provided, but if you'd like to discuss this claim further, don't hesitate to contact my officer directly.
Very best,
Ben House
ben@houseperron.com
281-762-1377
If the property is the owner's homestead (meaning that the owner owns the property and lives there) then your contract with the owner would have to satisfy the requirements of Texas Property Code sections 53.254, et seq., which requires specified homestead lien warnings, signing by husband and wife, and recordation in the county property records.
You really should retain a construction attorney to review and evaluate your legal position based on the contract and pertinent documents. The right to be entitled to file a mechanic's lien is set out in Texas Property Code Chapter 53, and you really need to make sure that if you file a lien, you have properly and appropriately done so.
Filing an invalid lien could subject you to liability under the Texas Fraudulent Lien Act, and you could be liable for statutory damages of $10,000, or actual damages, whichever is greater, plus attorney's fees. Facing such a claim would add insult to injury.
You should consider preparing a letter to mail by certified mail, return receipt requested, to your customer to set out the facts and to demand the relief that you want. Attach support for your claim such as the unpaid invoice and photos of completed work. Make sure that your letter is professional and business like as it may be evidence later.
If the customer fails or refuses to pay your invoice, you may consider filing suit in small claims court (as long as your claim is less than $20,000), or in county or district court, using your letter as evidence.
If you do file suit, you can also file a notice of lis pendens which will place a cloud on the property's title and may help force the seller to agree to the title company's escrowing sufficient funds to pay you.
Good luck.
Hello,
If it is a homestead, as the others have said above, you will have an issue with liens. However, you still have your causes of action against whomever hired you in County or District Court.
E. Aaron Cartwright III
214.789.1354
Aaron@EACLawyer.com