We have filed a lien through Levelset, but my attorney has some concerns that certain specifics of the lien may render it invalid. I will list the concerns raised below: - It seems to be the wrong form. The title says it’s a lien on a homestead. If that’s the case, the lien is no good since a lien on a homestead MUST be in writing. I looked the property up on the Llano County appraisal district and I don’t believe it is a homestead..... (Property is in fact NOT a homestead) - The title of the form refers to you as the “original contractor”. I don’t believe you were the original contractor. (this was a remodel) - The title of recorded document says “THIS IS NOT A LIEN”. - The amount of your claim is listed as $45,132.80, which is the correct amount. However, the Exhibit attached is an invoice for only $22,700. I am concerned that makes the affidavit invalid. (Levelset was given two invoices to attach but only one was included in filing) - The description of the services were “construction of improvements”. That would be consistent with the title referring to you as the “original contractor” but I don’t believe it’s accurate. You didn’t construct the improvements, but only modified them. - Who is Claire Canulette? How is she an authorized and disclosed agent? Disclosed to whom? - Again, the expression “installation of improvements” suggests to me that it is referring to original construction. - The notary was in Louisiana. Is that valid for a Texas Lien Affidavit?
Hello!
The statute only requires substantial compliance and your lawyer does not appear to be a Construction lawyer.
-The original contractor is the person who contracts directly with the property owner. Not the person who built the home.
-"THIS IS NOT A LIEN" is required on filed Affidavit's Claiming Lien.
-A mistake in the price is not enough to invalidate a lien when only one of two invoices was attached. You will still need to prove up all amounts in court.
-'Labor and material for improvements to real property' is standard language. All work done to property that adds value, including demolition, is an "improvement to real property".
-When you purchased Levelset's service, you may have authorized her to sign and file the lien.
-No one cares. "Improvements" is all work done on the property.
-As long as the notary can be called to testify that the person who signed is who they say they are, that is sufficient.
You need to find a construction lawyer. The fact that this person does not know what an original contractor is concerns me.
E. Aaron Cartwright III
214.799.0776
Info@EACLawyer.com
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.
If the property may be the owner's homestead, the contract would have to be in writing and be signed by husband and wife, and recorded in the county property records.
If the property is not the owner's homestead, the rules and procedures for filing a valid mechanic's lien are much different.
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.
Good luck.
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