Menu
Home>Levelset Community>Legal Help>Is a mechanical lien the correct approach to address this issue?

Is a mechanical lien the correct approach to address this issue?

Texas

I have a written contract with a private property owner to paint a70% of the house, remodel a master bath (tile work), reinstall toilets and such in all bathrooms and do electrical work throughout the house. Customer has paid for paint work and partially for plumbing work but has decided not to pay for the work of the electrician. The electrical work was bid based on hanging lamps and such but also replacing all switches and electrical plugs in the house. Things got complicated when the customer insisted on experimenting with the light tones of every recessed ceiling light. In addition, all dimmers installed had to be adjusted to meet her concept of how they should work. This work was a variation of the original bid which called for a $10 charge per switch and $20 for installation of LED recessed can lights. The electrician has submitted 6-page list of all the work performed. Since there is a Change Orders & Variations clause in the contract, we submitted a charge for 90 hours of labor for all the work performed (this is a very large house). The client refuses to pay bill claiming that there was no contract variation. Q: is a mechanical lien the way to go here or is there a different approach?

3 replies

Jan 11, 2021

Hello,

A mechanic's lien is available for every bit of work done and not paid for. Without seeing the rest of the paperwork like the contract and the change orders, a notice of intent to lien would be my next step. But, again, I have not seen the rest of the paperwork.

E. Aaron Cartwright III
214.789.1354
Aaron@EACLawyer.com

0 people found this helpful
Helpful
Jan 12, 2021

In my opinion, it is unlikely that you can file a M&M lien or constitutional lien because the requirements to properly perfect a lien on a homestead (which I assume this is) are very high and few contractors actually meet these requirements. Assuming that is true (please correct me if I am wrong), then I would not file a lien of any type. Filing a lien when you do not meet the requirements to do so gives the homeowner an argument to claim that you are the bad actor and filed a "fraudulent lien." Rather, you have a claim for breach of contract and what is called quantum meruit. Quantum meruit is a extra-contractual claim for when work performed is not covered by the contract. So, if as you describe, the client claims the work was outside of the contract, but they received the benefit of the work, then you are entitled to be paid for the value of the work. This is different from what you would have charged for the work as that would include overhead and profit. Based on what you have described, this is a lesson in why a contractor should NEVER do any work that is not clearly stated or included in the contract without a written change order or contract addendum signed BEFORE the work is performed that describes the work and states a price. 

 

Hope this helps. 

0 people found this helpful
Helpful
Jan 12, 2021
Yes
0 people found this helpful
Helpful