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What are my legal options to remove the lien on my property in case there is one?

I was filed with an Affidavit for Mechanics Lien by a subcontractor for the construction of my deck. The work is finished and I paid the contractor in full. I do have written proof of the payment. Apperantly the contractor did not pay the subcontractor.

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Oct 31, 2019

If an Affidavit of Mechanics Lien has been filed, that would mean that the lien has actually already been placed on the property title. Owners must receive a copy of the lien claim, so that may explain why you've received the affidavit. Granted, sometimes a claimant might provide notice of a lien filing before the lien claim is actually filed. In either case, the following information should be helpful. Before getting too far along, here's a great resource: A Mechanics Lien Was Filed on My Property – What Do I Do Now?

Challenging a Texas mechanics lien

Let's look at the different ways an owner might be able to get a mechanics lien released from their property title.

Disputing the validity of the filed lien claim and convincing the claimant to release their lien

Convincing a mechanics lien claimant to release their lien on their own accord is the fastest way to have a lien removed from the property title. Sometimes, when it's clear that the lien is flawed and that the owner will fight the filing tooth and nail, a claimant may opt to release their lien and attempt recovery by some other method. And, based on the above description in your question, there may be a sound enough basis for challenging the filed lien. For one, § 53-084 of the Texas Property Code limits the owner's liability when payments are made to the GC. Unless an owner has received monthly notice, the owner won't be responsible for more than the required retainage amount (generally, 10% of the overall contract price). So, if an owner hasn't received any monthly notice on the job and if a lien claimant has filed a lien for more than what's allowed, then the owner may be able to dispute the lien's validity.

Convincing the general contractor to resolve the issue

Further, when a GC has been paid in full, that contractor is then required to defend the property owner against lien claims from subs and suppliers under § 53-153 of the Texas Property Code. So, an owner may be able to push their contractor to resolve a payment dispute by reminding their contractor that the mechanics lien filing is their problem, too.

Challenging the filed lien in court

Yet another option is to challenge the lien filing via legal action. If there are issues with a lien claim - like an overstated claim, a failure to send required notices, etc. - then an owner may be able to have the mechanics lien removed from their title. Granted, it's a good idea (and maybe even required) to utilize the services of a Texas attorney before filing an action to dispute a lien filing.

Bonding off the lien, then sorting out the dispute once the title is clear

Finally, yet another option may be to bond off the filed lien. This will only provide some short-term relief, however. When a lien is bonded off, that lien is discharged from the property - but the claim doesn't just disappear. Instead, the surety bond that's been secured will take the place of the project property. And, a claimant can proceed with a lien enforcement suit against the bond, similarly to how they might if the lien remained against the property.

Bottom line

Mechanics lien filings can have drastic implications for a property owner. While the above information should be helpful, it's typically a good idea to consult with a local construction or real estate attorney when a lien has been filed on your property. They'll be able to advise on how best to move forward under your specific circumstances.

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