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I purchased concrete from affordable concrete company and I have invoice from them showing payment made but the affordable concrete company got the concrete from another company called Texcon. Well I paid my connection to affordable concrete company and they did not pay Texcon. Now Texcon is coming after me for $800 bucks and threatening to put a lien on my property. What do I do?

1 reply

Jun 9, 2021

I assume that the concrete 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 (the concrete company) 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.

Also, the concrete supplier would have had to provide you with notice of non-payment by certified mail by the 15th day of the second month after the month in which the concrete was provided to your project. If no notice of non-payment and no request to trap funds, then you owe nothing to the supplier. Also, if you did not pay anything to the concrete company after your received notice of non-payment, you would not be liable to supplier, unless you were required to retain retainage, but did not do so.

Incidentally, no lien claimant can force you to sell your home without first filing a valid homestead mechanic's lien. So, the determination of whether proper lien filing occurred is important.

Retain a construction attorney to evaluate your legal position and to provide advice.

Good luck.

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