Bill Text: TX HB1860 | 2011-2012 | 82nd Legislature | Comm Sub

Texas House Bill 1860 (Prior Session Legislation)

Bill Title: Relating to waiver of priority for removables in certain mechanic's, contractor's, or materialman's lien claims.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2011-04-19 - Committee report sent to Calendars [HB1860 Detail]

Download: Texas-2011-HB1860-Comm_Sub.html

	82R20756 NC-F

	By: Deshotel	H.B. No. 1860

	Substitute the following for H.B. No. 1860:

	By: Quintanilla	C.S.H.B. No. 1860



	A BILL TO BE ENTITLED
	AN ACT
	relating to waiver of priority for removables in certain
	mechanic's, contractor's, or materialman's lien claims.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1. Section 53.001, Property Code, is amended by
	adding Subdivision (7-a) to read as follows:
	(7-a) "Removable" means material furnished that can be
	removed without material injury to the land, a preexisting
	improvement, or the material.
	SECTION 2. Subchapter F, Chapter 53, Property Code, is
	amended by adding Section 53.1231 to read as follows:
	Sec. 53.1231. WAIVER OF PRIORITY FOR REMOVABLES IN A LIEN
	CLAIM. (a) This section applies only to:
	(1) a property owner who acquired title to the
	property:
	(A) by foreclosing the person's lien on the
	property; or
	(B) by purchasing the property:
	(i) at a foreclosure sale; or
	(ii) from a person who foreclosed the
	person's lien on the property; or
	(2) a title company seeking to insure title for the
	sale of property by a person who acquired title to the property by
	foreclosing the person's lien on the property to a third-party
	buyer.
	(b) A property owner or title company to whom this section
	applies may send a written notice to a lien claimant who has filed
	an affidavit claiming a mechanic's lien on the property requesting
	the lien claimant to:
	(1) confirm in writing whether the lien claim includes
	a claim for a removable; and
	(2) provide invoices or other supporting documents for
	any material for which the lien claimant claims a priority
	mechanic's lien for a removable under Section 53.123(a).
	(c) The notice must be sent by personal delivery or
	certified mail, return receipt requested, to the lien claimant's
	address in the claimant's lien affidavit. If the claimant's address
	is not provided in the lien affidavit, notice must be sent to the
	lien claimant's last known address as determined through reasonable
	efforts by the person sending the notice.
	(d) The notice must contain:
	(1) the requestor's name, the company name, if
	applicable, and the domestic mailing address to which the lien
	claimant may send a response; and
	(2) the following statement conspicuously printed at
	the top of the page in boldface type that is at least 10-point and
	not smaller than the largest type used in the notice document:
	NOTICE: "YOU MUST PROVIDE TO THE PERSON NAMED BELOW NOT LATER
	THAN THE 30TH DAY AFTER THE DATE OF RECEIPT OF THIS NOTICE A WRITTEN
	CONFIRMATION OF YOUR CLAIM OF A PRIORITY MECHANIC'S LIEN FOR A
	REMOVABLE UNDER SECTION 53.123(a) OF THE TEXAS PROPERTY CODE,
	INCLUDING ANY INVOICE OR OTHER SUPPORTING DOCUMENT FOR THE
	REMOVABLE. FAILURE TO RESPOND TIMELY WILL RESULT IN THE WAIVER OF
	THE PRIORITY OF YOUR LIEN FOR THE REMOVABLE."
	(e) A property owner or title company may not send more than
	one notice under this section to a lien claimant claiming a
	mechanic's lien on a particular property.
	(f) If a lien claimant fails to provide a written
	confirmation of the mechanic's lien for a removable for which a
	mechanic's lien is claimed, as requested by the notice, on or before
	the 30th day after the date the notice is received by the lien
	claimant or the date delivery of the notice is reasonably
	attempted:
	(1) the preference under Section 53.123(a) of the
	claimant's mechanic's lien for the removable over any prior lien,
	encumbrance, or mortgage on the property is waived; and
	(2) the requestor may file an affidavit with the
	county clerk of the county in which the property is located that
	includes:
	(A) a statement that the notice was sent in
	compliance with this section and the lien claimant failed to
	respond; and
	(B) proof of delivery or, if delivery was
	reasonably attempted and failed, a statement of the means of
	attempted delivery and the reason for the failure of delivery.
	(g) The sufficiency of the invoice or other supporting
	document provided in response to the notice is not grounds for the
	waiver under Subsection (f)(1) of the lien claimant's priority
	under Section 53.123(a).
	(h) An affidavit filed under Subsection (f)(2) is prima
	facie evidence that the lien claimant waived any preference under
	Section 53.123(a) of the claimant's mechanic's lien for a removable
	over any prior lien, encumbrance, or mortgage on the property.
	(i) An invoice or other supporting document provided by a
	lien claimant in response to a notice under this section is
	considered a general statement of the existence and general nature
	of a removable and does not limit:
	(1) the evidence a claimant may present at a trial or
	other proceeding to establish the claimant's mechanic's lien for
	the removable; or
	(2) the specific quantity or nature of the removables
	that may be actually proven at a trial or other proceeding.
	SECTION 3. The change in law made by this Act applies only
	to a lien relating to a contract entered into on or after the
	effective date of this Act. A lien relating to a contract entered
	into before the effective date of this Act is governed by the law
	applicable to the lien immediately before the effective date of
	this Act, and that law is continued in effect for that purpose.
	SECTION 4. This Act takes effect January 1, 2012.