How do you challenge lien claims against your property? Disputes can arise as to the payment for, or performance of services on your home with a contractor. One of the constitutional remedies that a contractor has is to file a lien against your property, claiming you owe them money. If someone has filed a lien on your property without the legal right to do so you will have the right to have that lien removed.
Under Texas Law, there are several methods for removal of the lien claims against property, including Ch. 53 of the Texas Property Code, a suit to quiet title, or a Civil Practice & Remedies Code Ch. 12 motion. See, Texas Property Code §53.160; See also, Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004), Poag v. Flories, 317 S.W.3d 820 (Tex. App.–Fort Worth 2010, pet. denied), XTO Energy Inc. v. Nikolai, 357 S.W.3d 47, 52 (Tex. App.–Fort Worth 2011, pet. denied), Tex. Prop. Code § 22.001; See also, Civ. Prac. & Rem. Code Ch 12
Many of these avenues require either a full legal proceeding, or a finding of actual fraud, which can be a time consuming and expensive process. Tex. Property Code Ch. 53 provides a summary process for having liens removed for a variety of reasons. The most common is that the lien does not comply with the numerous and complicated provisions for obtaining and perfecting a lien.
To obtain a lien against a property, a contractor must perform services on a home, building, or improvement.
A person has a lien if:
- the person labors, specially fabricates material, or furnishes labor or materials for construction or repair in this state of:
- a house, building, or improvement;… and
- the person labors, specially fabricates the material, or furnishes the labor or materials under or by virtue of a contract with the owner or the owner’s agent, trustee, receiver, contractor, or subcontractor.
Tex. Prop. Code § 53.021
However, before the owner of the lien can enforce those lien rights, they must ‘perfect’ the lien, which means taking certain steps to put the rest of the world on notice that they own the lien. To perfect their lien, the contractor, once the owner fails or refuses to pay, must:
- File an affidavit of lien with the County Clerk;
- Do so within the statutory time period;
- Include the amount, identity of the property owner, a statement of the work, and a description of the property that the lien attaches to;
- And send a copy of the affidavit to the property owner.
Tex. Prop. Code §§ 53.052, 53.053, 53.055.
Texas Property Code § 53 is the primary method for dealing with constitutional Materialmen’s and Mechanic’s liens that have been filed improperly. A Summary Motion to Remove a Lien pursuant to Texas Property Code §53.160 must be verified by affidavit, and filed in District Court in the county where the lien claim is filed.
There are many grounds for having a lien declared invalid or unenforceable under § 53.160, including:
- Failure to comply with the statutory procedures described above;
- Failure to comply with addition requirements for homestead property;
- Failure to give proper notice to the owner or original contractor.
The party seeking to have the lien removed may also deposit the amount of the lien claim with the registry of the Court to have the lien removed while the parties argue the merits of the debt. § 53.160(b)(5). The person claiming the lien is entitled to at least 21 days of notice before a § 53 hearing may go in front of a Judge. § 53.160(c). If the Court grants the motion, the Court will order the lien removed. The lien claimant can stay this removal by posting a bond in an amount set by the Judge within 30 days. § 53.161(b-c).
The chance to resolve a lien claim in less than 60 days, on the grounds of bare technicalities in the filing and perfection process makes a § 53.160 Summary Motion the preferred vehicle for seeking the removal of a Materialmen’s & Mechanic’s liens lien claim against real property. When very clear fraud, the loss of a sale of property, or other complicating factors are in play, then another form of relief may be preferred, but for the majority of Constitutional Materialmen’s & Mechanic’s liens, the Texas Property Code § 53 provides the most efficient and effective method of challenging those claims.
If faced with a lien claim, contacting a competent Real Estate attorney is the first thing you should do. The attorneys at Hayes, Berry, White & Vanzant, LLP have decades of experience in Real Estate, and Richard Hayes and Don R. White, Jr. are board certified in Commercial and Residential Real Estate Law. Our attorneys can help you assess your issue, and determine whether a Summary Motion to Remove a Lien under Texas Property Code §53.160 will be the best option for having that lien claim removed. Contact us here for more information.
