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KLAW, Arbitrator
Category: Real Estate Law
Satisfied Customers: 2837
Experience:  I have over 20 years of experience in commercial real estate law, finance, consumer credit, landlord tenant, and business law.
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Needing help filing a Invalid Mechanic Lien Affidavit

Customer Question

Needing help filing a Invalid Mechanic Lien Affidavit for Texas
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  KLAW replied 2 years ago.

Hello and welcome to Just Answer. No attorney-client relationship or privilege is formed by speaking to an expert on this site, the answers are for general information. By continuing, you confirm that you understand and agree to these terms.

There are two ways under Texas law whereby an interested party may petition the court by a motion to have a Texas mechanics lien declared invalid or unenforceable. The first is under Section 53-160 of the Texas Property Code, which states the “grounds for objecting to the validity or enforceability of the…lien…are limited to the following 7 circumstances. So you must make sure you fit in one of the grounds. Also note that the court requires that you post a bond to file this motion.

The 7 specific situations are as follows:

  1. If a Notice of Claim was not delivered to the owner or original contractor as required in the lien filing process;
  2. If the lien claim affidavit did not comply with the requirements;
  3. If the notice of the lien’s filing was not delivered to the owner or original contractor as required in the lien filing process;
  4. If retainage is claimed in the lien, the retainage period for claims expired, and the owner took all require precautions;
  5. The owner deposits all sums in controversy into the registry of the court and has no additional liability to the claimant (i.e. likely, the claimant and contractor would continue to argue over who is due the money);
  6. If the lien was against homestead property and the appropriate procedures and forms were not used; or
  7. The claimant had executed a valid and enforceable lien waiver for the claim.

The second way is if the foreclosure action on the lien is not timely filed, then§53-157(2) provides that the lien claim may be discharged. Specifically, §53-157(2) provides as follows:

A mechanic’s lien or affidavit claiming a mechanic’s lien filed under Section 53.052 may be discharged of record by:

(2) failing to institute suit to foreclose the lien in the county in which the property is located within the period prescribed by Section 53.158, 53.175, or 53.208;

Keep in mind that a mechanics lien may be discharged if the claim is not timely foreclosed upon. However, the statute is completely silent on who can cause the claim to be discharged, and how the discharged can practically be carried out. You cannot just show up at the recorder’s office with an affidavit and release document for recording, because the clerk will not be capable of determining if the lien claim was truly expired, as the foreclosure lien period requires a detailed factual determination. You would have to file a motion in the court to have the lien declared expired and ordered released.

This is not a simple motion and you would need to hire a local attorney.

I hope this helps with your question.

Customer: replied 2 years ago.
Thanks for your quick response. Are you saying that you don't offer that service to prepare a motion to file declaring the lien expired and order released?
Expert:  KLAW replied 2 years ago.

No, I'm sorry were just for general legal advise and guidance, you would have to hire a local attorney to handle the filing of the motion.