How do I exercise a texas conditional lien waiver

4 months ago

I have a customer that is out of state and wants a roof installed on a home. He wants to make payment using a credit card. 50% upfront and 50% before we start second phase. I would like to use a Texas Conditional lien waiver for progress and for payment before the job is complete. I noticed the Texas Construction Association forms of statue indicate for a check payment and its not editable. How do I use the Texas lien waiver process to collect payment if they are using a credit card for payment?

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Project Role: Owner
Project Type: Residential
Senior Legal Associate Levelset
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The lien laws of the state where work is being performed will apply. So, if the project is located in Texas, then Texas’ lien laws will control – meaning, the Texas statutory mechanics lien waivers must be used. But, if the project is being performed outside of Texas, then the project state’s lien laws will control.

Because most states don’t have any statutory lien waiver requirements, that means a non-Texas project could likely use whatever lien waivers the parties want. If you want to search for another state’s waiver requirements, here’s an interactive map that will bring you to the correct state’s waiver rules: Map of Lien Waiver Rules & Requirements.

Can Texas lien waiver forms be altered to accommodate cash or credit card payments?

The answer here is almost undoubtedly “yes!” Payments are very commonly made by check, but cash and credit are also common. So, if Texas waivers are required, they can be altered to account for that.

To be sure, § 53.284(a) of the Texas Property Code states that “A waiver and release given by a claimant or potential claimant is unenforceable unless it substantially complies with the applicable form…

So, the waiver doesn’t have to appear exactly as it does in the statute – but, it should be as close as possible in order to be considered valid. Making very minimal changes to the form that purely serve to identify how payment is being made, other than a check, should be fine.

Additional Texas mechanics lien waiver resources

Here are some additional resources on Texas mechanics lien rights that should be helpful.

– Texas Lien Waivers Guide and FAQs
– Texas Lien Waiver Forms & Guide – All You Need to Know

Disclaimer: The information presented here is not legal advice and should not be construed as such. Rather, this content is provided for informational purposes. Do not act on this information as if it is advice. Further, this post does not create any attorney-client relationship. If you do need legal advice, seek the help of a local attorney.
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