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We have received a partial payment against a lien. Can the lien amount be adjusted or does the original stay in place.

TexasMechanics Lien

We are intending to turn over an unconditional waiver for the amount received but are unsure what to do with the recorded lien. Do we release and then file another for the outstanding amount. Someone in our office mistakenly indicated that we would remove the lien if a partial payment was received. The remain outstanding amounts are equal to contract provide retention.

7 replies

Oct 3, 2018

That's a good question, and it's one we get pretty often on the Construction Legal Center. First, while a few states do provide for the amendment of a mechanics lien, the Texas Property Code does not specifically state whether a mechanics lien may be amended. If a claimant is still within their deadline to file a mechanics lien, attempting to amend the filed lien may be an option. Another option could be to issue a partial lien waiver for the amount that was paid - such a waiver could partially waive lien rights while leaving the remaining balance unaffected. This would not work to release the filed lien, but if push came to shove, it'd be a sign of good faith to the property owner/contractor. Plus, if it came down to a lien enforcement action, that'd serve as proof that some amounts claimed under the lien have been paid. Finally, releasing a filed lien and then refiling with an updated amount is a potentially risky option, and if the deadline to file a lien has already passed, it's probably not a very good idea. Regardless of the deadline, though, it's still not a particularly good option. Nothing in the Texas Property Code indicates that a lien must be fully (or even partially) released when partial payment of a lien has been made. When a lien has been partially paid, the best option for a Texas claimant may be to sit tight and notify the party making payment that, if a lien enforcement action is required, the claimant will only seek payment for amounts that remain unpaid at that time. Considering a lien is a claimant's best leverage to compel payment, taking any action that may negatively affect the viability of a lien claim is usually not a great idea. Finally, this article should be helpful: I Received Partial Payment — What Should I Do With My Mechanics Lien?

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