Hello there. We completed a re-roof directly for a home owner in Texas about a year ago, and she refuses to pay us. She claims that she gave our company a cashiers check but has refused to show evidence of this cashiers check. We have not filed a lien. I would like to file a constitutional lien since we've missed our statutory lien deadline. 1. Should I send the owner a Notice of Intent to Lien letter? If so, should this letter indicate that it will be a constitutional lien as opposed to a statutory lien, or does it matter? 2. The owner is a lawyer. Should I be worried about her filing suit against us for filing a lien? What should I be worried that a lawyer might do when faced with a lien? Many thanks for your help. I'm pretty new to lien law. Mark Smith
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 the owner to set out the facts and to demand the relief that you want. Attach your unpaid invoices to the letter, along with a photograph of your completed work. Make sure that your letter is professional and business like as it may be evidence later.
If need be, consider filing suit in small claims court (assuming that your claim is less than $20,000), using your letter as evidence. If your claim is larger than $20,000, retain a construction attorney to evaluate your legal situation and to provide advice.
Good luck.