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I need help on who is responsible to pay my company. Should I lien?

We are a scaffold company. We were hired on a project in San Marcos Texas. the subcontractor who hired us disappeared and did not finish his work. During that time the GC/developer/owner began to use the scaffold we supplied and even paid for some of it. A different sub on the job used our scaffold without our knowledge and ended up removing it from the job site. one day it showed back up in a damaged pile in the back corner of the complex, unusable... long story short, we notified the GC that they would need to pay us for this and they we would continue to charge rent until the damaged scaffold was replaced. that has been since July 10th 2018. we have now finished the project as of Jan 05 2019 and picked up all but our damaged scaffold. with the rent and damaged scaffold they owe us $13,597.12 as well as two other invoices that are now past due in the amount of $4,393.75

1 reply

Apr 2, 2019

That's an interesting situation, and I should mention I'm not able to provide legal advice on how you should proceed - however, I am able to provide legal information that should help you decide which route might make the most sense for you. First and foremost, note that parties hired by someone other than the property owner must send certain notices in order to preserve the right to later file a mechanics lien. For more on that, this resource should be valuable: Guide to Texas Monthly Notices. Setting aside the notice issue, it's probably worth breaking this question down into two separate ideas: (1) What options might be available to recover payments owed and unpaid for construction work performed? and (2) What options might be available to recover damages for equipment damaged or broken in the course of use? First - payments owed and unpaid for work performed. Generally, when payments are owed and unpaid for construction work, a mechanics lien is the most powerful remedy available (as long as all notice and deadline requirements are followed, as mentioned above). But, because mechanics liens are so powerful, the mere warning or threat of a lien claim can actually help to recover payment - without the need for actually filing a claim. Plus, a Notice of Intent to Lien can be sent regardless of whether a claimant can or will ultimately file a lien. You can learn more about the document here: What is a Notice of Intent to Lien? You can learn more about Texas lien claims at the following resources: (1) Texas Lien & Notice Overview; and (2) How to File a Texas Mechanics Lien. Outside of the mechanics lien process, there are a number of other potential options for recovering payments owed for construction work. For one, sending a payment demand letter that sets out specific legal threats (such as unjust enrichment) could be effective. When a payment demand letter is sent via attorney, it tends to carry a little extra "umph". Further, options like taking a claim to small claims court or traditional litigation might also be available (note, though, that small claims court actions appear to be limited to $10,000 or less in Texas). Keep in mind, though - when making payment claims, the ability to make certain claims might be limited if there isn't a formal agreement in place between the claimant and the party who allegedly owes them money. Now, let's look to recovering damages for damaged or ruined equipment. Recovery for damage done to property will generally be limited a little more than payment claims. Specifically - tools like mechanics liens aren't available for disputes that don't tie to payment for work performed. However, damages for destruction to property can certainly be alleged in an action in small claims court or via litigation. Considering there are a number of moving parts here, and due to the unique nature of the debts owed, it would be wise to consult a local construction or real estate attorney about how best to proceed, if possible. They'll be able to review your circumstances, including all documentation and communications, and advise on how best to proceed.

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