Hi, I have American Home Shield and in December of last year they sent a contractor to fix my pool equipment. The contractor says they did not get a payment of $645 and send me an invoice and a letter, today 05/25/2021. The letter says "Affidavit for Mechanicals and Materials men Lien Notice this is not a lien this is only an affidavit to claiming a lien" then it cites my address and my name. The invoice is dated Dec. 8th 2020 and due on Dec. 23, 2020 I did contact AHS and they just said they will call me tomorrow. I do have homestead in my house and I live in Rowlett, Texas. What action should I do? Should I get an attorney? Thanks!
I assume that the pool 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. You should write a letter by certified mail to the lien claimant to demand 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.
The pool contractor would be pretty silly to maintain a lien in the face of a $10,000 statutory damages Fraudulent Lien Act claim.
Retain a construction attorney to evaluate your legal position and to provide advice.
Good luck.
Based on what you write, it appears that the contractor did file a mechanic's lien. What you describe is how a mechanic's lien is referenced. Thus the notary acknowledgment for filing in your county's property records. Otherwise, a notary acknowledgment would not be needed.
You should write the certified letter to demand that if the contractor has filed a lien that the contractor release it. When I am involved, I prepare a Release of Lien keyed to the contractor's lien so that it is convenient for the contractor to sign it. If the contractor does sign the Release of Lien, it sure saves on attorney's fees.
Retain a construction attorney to evaluate your legal situation and to provide advice.
Texas Property Code section 53.254 discusses how a mechanic's lien on a homestead should be configured. Section 53.254 states in pertinent part:
Sec. 53.254. HOMESTEAD. (a) To fix a lien on a homestead, the person who is to furnish material or perform labor and the owner must execute a written contract setting forth the terms of the agreement.
(b) The contract must be executed before the material is furnished or the labor is performed.
(c) If the owner is married, the contract must be signed by both spouses.
(d) If the contract is made by an original contractor, the contract inures to the benefit of all persons who labor or furnish material for the original contractor.
(e) The contract must be filed with the county clerk of the county in which the homestead is located. The county clerk shall record the contract in records kept for that purpose.
(f) An affidavit for lien filed under this subchapter that relates to a homestead must contain the following notice conspicuously printed, stamped, or typed in a size equal to at least 10-point boldface or the computer equivalent, at the top of the page:
"NOTICE: THIS IS NOT A LIEN. THIS IS ONLY AN AFFIDAVIT CLAIMING A LIEN."
You can review this section as well as the rest of Chapter 53 at the following link:
https://statutes.capitol.texas.gov/Docs/PR/htm/PR.53.htm
Good luck.
Incidentally, for the lien to fully encumber your property, the contractor would have to file suit to have a court confirm the validity of the lien. That is why the verbiage about the document not being an actual lien, but an affidavit claiming a lien. A title company will pick up the filing and flag it as a cloud on your title.