Bill Text: TX HB1456 | 2011-2012 | 82nd Legislature | Engrossed
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Bill Title: Relating to the waiver and release of a mechanic's, contractor's, or materialman's lien or payment bond claim and to the creation of a mechanic's, contractor's, or materialman's lien for certain landscaping.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2011-06-17 - Effective on 1/1/12 [HB1456 Detail]
Download: Texas-2011-HB1456-Engrossed.html
Bill Title: Relating to the waiver and release of a mechanic's, contractor's, or materialman's lien or payment bond claim and to the creation of a mechanic's, contractor's, or materialman's lien for certain landscaping.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2011-06-17 - Effective on 1/1/12 [HB1456 Detail]
Download: Texas-2011-HB1456-Engrossed.html
By: Orr | H.B. No. 1456 |
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relating to the waiver and release of a mechanic's, contractor's, or | ||
materialman's lien or payment bond claim and to the creation of a | ||
mechanic's, contractor's, or materialman's lien for certain | ||
landscaping. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 53.021(d), Property Code, is amended to | ||
read as follows: | ||
(d) A person who provides labor, plant material, or other | ||
supplies for the installation of landscaping for a house, building, | ||
or improvement, including the construction of a retention pond, | ||
retaining wall, berm, irrigation system, fountain, or other similar | ||
installation, under or by virtue of a written contract with the | ||
owner or the owner's agent, contractor, subcontractor, trustee, or | ||
receiver has a lien on the property. | ||
SECTION 2. Section 53.085(c), Property Code, is amended to | ||
read as follows: | ||
(c) The affidavit may include: | ||
(1) a waiver or release of lien rights or payment bond | ||
claims by the affiant that is conditioned on the receipt of actual | ||
payment or collection of funds when payment is made by check or | ||
draft, as provided by Subchapter L; | ||
(2) a warranty or representation that certain bills or | ||
classes of bills will be paid by the affiant from funds paid in | ||
reliance on the affidavit; and | ||
(3) an indemnification by the affiant for any loss or | ||
expense resulting from false or incorrect information in the | ||
affidavit. | ||
SECTION 3. Chapter 53, Property Code, is amended by adding | ||
Subchapter L to read as follows: | ||
SUBCHAPTER L. WAIVER AND RELEASE OF LIEN OR PAYMENT BOND CLAIM | ||
Sec. 53.281. WAIVER AND RELEASE OF LIEN OR PAYMENT BOND | ||
CLAIM. (a) Any waiver and release of a lien or payment bond claim | ||
under this chapter is unenforceable unless a waiver and release is | ||
executed and delivered in accordance with this subchapter. | ||
(b) A waiver and release is effective to release the owner, | ||
the owner's property, the contractor, and the surety on a payment | ||
bond from claims and liens only if: | ||
(1) the waiver and release substantially complies with | ||
one of the forms prescribed by Section 53.284; | ||
(2) the waiver and release is signed by the claimant or | ||
the claimant's authorized agent and notarized; and | ||
(3) in the case of a conditional release, evidence of | ||
payment to the claimant exists. | ||
Sec. 53.282. CONDITIONS FOR WAIVER, RELEASE, OR IMPAIRMENT | ||
OF LIEN OR PAYMENT BOND CLAIM. (a) A statement purporting to | ||
waive, release, or otherwise adversely affect a lien or payment | ||
bond claim is not enforceable and does not create an estoppel or | ||
impairment of a lien or payment bond claim unless: | ||
(1) the statement is in writing and substantially | ||
complies with a form prescribed by Section 53.284; | ||
(2) the claimant has actually received payment in good | ||
and sufficient funds in full for the lien or payment bond claim; or | ||
(3) the statement is: | ||
(A) in a written original contract or subcontract | ||
for the construction, remodel, or repair of a single-family house, | ||
townhouse, or duplex or for land development related to a | ||
single-family house, townhouse, or duplex; and | ||
(B) made before labor or materials are provided | ||
under the original contract or subcontract. | ||
(b) The filing of a lien rendered unenforceable by a lien | ||
waiver under Subsection (a)(3) does not violate Section 12.002, | ||
Civil Practice and Remedies Code, unless: | ||
(1) an owner or original contractor sends a written | ||
explanation of the basis for nonpayment, evidence of the | ||
contractual waiver of lien rights, and a notice of request for | ||
release of the lien to the claimant at the claimant's address stated | ||
in the lien affidavit; and | ||
(2) the lien claimant does not release the filed lien | ||
affidavit on or before the 14th day after the date the owner or the | ||
original contractor sends the items required by Subdivision (1). | ||
(c) Subsection (a)(3) does not apply to a person who | ||
supplies only material, and not labor, for the construction, | ||
remodel, or repair of a single-family house, townhouse, or duplex | ||
or for land development related to a single-family house, | ||
townhouse, or duplex. | ||
Sec. 53.283. UNCONDITIONAL WAIVER AND RELEASE: PAYMENT | ||
REQUIRED. A person may not require a claimant or potential claimant | ||
to execute an unconditional waiver and release for a progress | ||
payment or final payment amount unless the claimant or potential | ||
claimant received payment in that amount in good and sufficient | ||
funds. | ||
Sec. 53.284. FORMS FOR WAIVER AND RELEASE OF LIEN OR PAYMENT | ||
BOND CLAIM. (a) A waiver and release given by a claimant or | ||
potential claimant is unenforceable unless it substantially | ||
complies with the applicable form described by Subsections (b)-(e). | ||
(b) If a claimant or potential claimant is required to | ||
execute a waiver and release in exchange for or to induce the | ||
payment of a progress payment and is not paid in exchange for the | ||
waiver and release or if a single payee check or joint payee check | ||
is given in exchange for the waiver and release, the waiver and | ||
release must read: | ||
"CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT | ||
"Project ___________________ | ||
"Job No. ___________________ | ||
"On receipt by the signer of this document of a check from | ||
________________ (maker of check) in the sum of $__________ payable | ||
to _____________________ (payee or payees of check) and when the | ||
check has been properly endorsed and has been paid by the bank on | ||
which it is drawn, this document becomes effective to release any | ||
mechanic's lien right, any right arising from a payment bond that | ||
complies with a state or federal statute, any common law payment | ||
bond right, any claim for payment, and any rights under any similar | ||
ordinance, rule, or statute related to claim or payment rights for | ||
persons in the signer's position that the signer has on the | ||
property of ________________ (owner) located at | ||
______________________ (location) to the following extent: | ||
______________________ (job description). | ||
"This release covers a progress payment for all labor, | ||
services, equipment, or materials furnished to the property or to | ||
__________________ (person with whom signer contracted) as | ||
indicated in the attached statement(s) or progress payment | ||
request(s), except for unpaid retention, pending modifications and | ||
changes, or other items furnished. | ||
"Before any recipient of this document relies on this | ||
document, the recipient should verify evidence of payment to the | ||
signer. | ||
"The signer warrants that the signer has already paid or will | ||
use the funds received from this progress payment to promptly pay in | ||
full all of the signer's laborers, subcontractors, materialmen, and | ||
suppliers for all work, materials, equipment, or services provided | ||
for or to the above referenced project in regard to the attached | ||
statement(s) or progress payment request(s). | ||
"Date ____________________________ | ||
"_________________________________ (Company name) | ||
"By ______________________________ (Signature) | ||
"_________________________________ (Title)" | ||
(c) If a claimant or potential claimant is required to | ||
execute an unconditional waiver and release to prove the receipt of | ||
good and sufficient funds for a progress payment and the claimant or | ||
potential claimant asserts in the waiver and release that the | ||
claimant or potential claimant has been paid the progress payment, | ||
the waiver and release must: | ||
(1) contain a notice at the top of the document, | ||
printed in bold type at least as large as the largest type used in | ||
the document, but not smaller than 10-point type, that reads: | ||
"NOTICE: | ||
"This document waives rights unconditionally and states that | ||
you have been paid for giving up those rights. It is prohibited for | ||
a person to require you to sign this document if you have not been | ||
paid the payment amount set forth below. If you have not been paid, | ||
use a conditional release form."; and | ||
(2) below the notice, read: | ||
"UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT | ||
"Project ___________________ | ||
"Job No. ___________________ | ||
"The signer of this document has been paid and has received a | ||
progress payment in the sum of $___________ for all labor, | ||
services, equipment, or materials furnished to the property or to | ||
_____________________ (person with whom signer contracted) on the | ||
property of _______________________ (owner) located at | ||
______________________ (location) to the following extent: | ||
______________________ (job description). The signer therefore | ||
waives and releases any mechanic's lien right, any right arising | ||
from a payment bond that complies with a state or federal statute, | ||
any common law payment bond right, any claim for payment, and any | ||
rights under any similar ordinance, rule, or statute related to | ||
claim or payment rights for persons in the signer's position that | ||
the signer has on the above referenced project to the following | ||
extent: | ||
"This release covers a progress payment for all labor, | ||
services, equipment, or materials furnished to the property or to | ||
__________________ (person with whom signer contracted) as | ||
indicated in the attached statement(s) or progress payment | ||
request(s), except for unpaid retention, pending modifications and | ||
changes, or other items furnished. | ||
"The signer warrants that the signer has already paid or will | ||
use the funds received from this progress payment to promptly pay in | ||
full all of the signer's laborers, subcontractors, materialmen, and | ||
suppliers for all work, materials, equipment, or services provided | ||
for or to the above referenced project in regard to the attached | ||
statement(s) or progress payment request(s). | ||
"Date ____________________________ | ||
"_________________________________ (Company name) | ||
"By ______________________________ (Signature) | ||
"_________________________________ (Title)" | ||
(d) If a claimant or potential claimant is required to | ||
execute a waiver and release in exchange for or to induce the | ||
payment of a final payment and is not paid in good and sufficient | ||
funds in exchange for the waiver and release or if a single payee | ||
check or joint payee check is given in exchange for the waiver and | ||
release, the waiver and release must read: | ||
"CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT | ||
"Project ___________________ | ||
"Job No. ___________________ | ||
"On receipt by the signer of this document of a check from | ||
________________ (maker of check) in the sum of $____________ | ||
payable to _____________________ (payee or payees of check) and | ||
when the check has been properly endorsed and has been paid by the | ||
bank on which it is drawn, this document becomes effective to | ||
release any mechanic's lien right, any right arising from a payment | ||
bond that complies with a state or federal statute, any common law | ||
payment bond right, any claim for payment, and any rights under any | ||
similar ordinance, rule, or statute related to claim or payment | ||
rights for persons in the signer's position that the signer has on | ||
the property of _____________________ (owner) located at | ||
______________________ (location) to the following extent: | ||
______________________ (job description). | ||
"This release covers the final payment to the signer for all | ||
labor, services, equipment, or materials furnished to the property | ||
or to __________________ (person with whom signer contracted). | ||
"Before any recipient of this document relies on this | ||
document, the recipient should verify evidence of payment to the | ||
signer. | ||
"The signer warrants that the signer has already paid or will | ||
use the funds received from this final payment to promptly pay in | ||
full all of the signer's laborers, subcontractors, materialmen, and | ||
suppliers for all work, materials, equipment, or services provided | ||
for or to the above referenced project up to the date of this waiver | ||
and release. | ||
"Date ____________________________ | ||
"_________________________________ (Company name) | ||
"By ______________________________ (Signature) | ||
"_________________________________ (Title)" | ||
(e) If a claimant or potential claimant is required to | ||
execute an unconditional waiver and release to prove the receipt of | ||
good and sufficient funds for a final payment and the claimant or | ||
potential claimant asserts in the waiver and release that the | ||
claimant or potential claimant has been paid the final payment, the | ||
waiver and release must: | ||
(1) contain a notice at the top of the document, | ||
printed in bold type at least as large as the largest type used in | ||
the document, but not smaller than 10-point type, that reads: | ||
"NOTICE: | ||
"This document waives rights unconditionally and states that | ||
you have been paid for giving up those rights. It is prohibited for | ||
a person to require you to sign this document if you have not been | ||
paid the payment amount set forth below. If you have not been paid, | ||
use a conditional release form."; and | ||
(2) below the notice, read: | ||
"UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT | ||
"Project ___________________ | ||
"Job No. ___________________ | ||
"The signer of this document has been paid in full for all | ||
labor, services, equipment, or materials furnished to the property | ||
or to ___________________ (person with whom signer contracted) on | ||
the property of ______________________ (owner) located at | ||
______________________ (location) to the following extent: | ||
______________________ (job description). The signer therefore | ||
waives and releases any mechanic's lien right, any right arising | ||
from a payment bond that complies with a state or federal statute, | ||
any common law payment bond right, any claim for payment, and any | ||
rights under any similar ordinance, rule, or statute related to | ||
claim or payment rights for persons in the signer's position. | ||
"The signer warrants that the signer has already paid or will | ||
use the funds received from this final payment to promptly pay in | ||
full all of the signer's laborers, subcontractors, materialmen, and | ||
suppliers for all work, materials, equipment, or services provided | ||
for or to the above referenced project up to the date of this waiver | ||
and release. | ||
"Date ____________________________ | ||
"_________________________________ (Company name) | ||
"By ______________________________ (Signature) | ||
"_________________________________ (Title)" | ||
Sec. 53.285. ATTEMPTED COMPLIANCE. (a) A waiver or release | ||
shall be construed to comply with this subchapter and is | ||
enforceable in the same manner as a waiver and release under this | ||
subchapter if the waiver or release: | ||
(1) is furnished in attempted compliance with this | ||
subchapter; or | ||
(2) evidences by its terms intent to comply with this | ||
subchapter. | ||
(b) Any provision in any waiver or release furnished in | ||
attempted compliance with this subchapter that expands or restricts | ||
the rights or liabilities provided under this subchapter shall be | ||
disregarded and the provisions of this subchapter shall be read | ||
into that waiver or release. | ||
(c) This section expires August 31, 2012. | ||
Sec. 53.286. PUBLIC POLICY. Notwithstanding any other law | ||
and except as provided by Section 53.282, any contract, agreement, | ||
or understanding purporting to waive the right to file or enforce | ||
any lien or claim created under this chapter is void as against | ||
public policy. | ||
Sec. 53.287. CERTAIN AGREEMENTS EXEMPT. This subchapter | ||
does not apply to a written agreement to subordinate, release, | ||
waive, or satisfy all or part of a lien or bond claim in: | ||
(1) an accord and satisfaction of an identified | ||
dispute; | ||
(2) an agreement concerning an action pending in any | ||
court or arbitration proceeding; or | ||
(3) an agreement that is executed after an affidavit | ||
claiming the lien has been filed or the bond claim has been made. | ||
SECTION 4. Section 53.021(d), Property Code, as amended by | ||
this Act, applies only to a lien claim arising under or by virtue of | ||
a contract entered into on or after the effective date of this Act. | ||
A lien claim arising under or by virtue of a contract entered into | ||
before the effective date of this Act is governed by the law | ||
applicable to the claim immediately before the effective date of | ||
this Act, and that law is continued in effect for that purpose. | ||
SECTION 5. Section 53.085(c), Property Code, as amended by | ||
this Act, and Subchapter L, Chapter 53, Property Code, as added by | ||
this Act, apply only to a contract executed on or after January 1, | ||
2012. A contract executed before January 1, 2012, is covered by the | ||
law applicable to the contract immediately before the effective | ||
date of this Act, and the former law is continued in effect for that | ||
purpose. | ||
SECTION 6. This Act takes effect January 1, 2012. |