We are the supplier and provided material for improvements or additions to a home. We haven't been paid yet. One of our sales team contacted the home builder to get payment or a lien would be filed and was told that a lien cannot be filed against a homesteaded property, quoting Texas article ??? I did some research on the internet and found several articles stating that a judgement lien couldn't be filed, but that exemptions did not pertain to mechanics liens. PB only files mechanics liens. Can you please confirm this and provide specific Texas article #'s so that I can go back and inform the home builder we do have the right to lien.
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 the unpaid invoice(s) and photos of your work on site (if you can secure them). Make sure that your letter is professional and business like as it may be evidence later.
If need be, you can consider filing suit yourself in small claims court if the claim amount is less than $20,000, using your letter as evidence. Otherwise, you will have to file suit in county or district court using an attorney.
Good luck.
Hello,
They are wrong. A lien can be filed against a homestead, however there are so many hoops to jump through that it becomes insanity to enforce if you're lower than the original contractor. You have to make sure there are specific things in the contract that you, as a material supplier, have no control over.
What you should do instead is send the notice of intent to lien with the requisite language to trap funds, then sue everyone up the chain. If the owner does not withhold the funds then you have some recourse against the owner and potentially, the property. And a judgment lien can be filed against the homestead but, if it is a homestead, it cannot be foreclosed (usually. There are some exceptions).
E. Aaron Cartwright III
214.799.0776
Info@EACLawyer.com