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