Specially Fabricated Material Liens

One of the requirements for filing a lien is to have either physically installed material or physically made improvements to real property. Typically, when a job is cancelled, the resulting harm to the contractor, subcontractor, or fabricator is limited to lost profits from the missed opportunity to provide work. This is because no work has been performed on the real property yet, no wages have been paid to employees, and no supplies have been installed on the property.

Sometimes, however, the resulting harm can be much greater. For example, consider the situation where you order materials which must be specially fabricated for a project, the supplier produces the materials, and the project is subsequently cancelled? In such a situation, you can file a lien to recover the costs of the specially fabricated materials.

Under Texas law, a “specially fabricated material” is defined as a material fabricated for use as a component of the construction or repair so as to be reasonably unsuitable for use elsewhere.

As an example, let’s consider granite countertops. Once a slab of granite is cut to the required dimensions for a specific project, perhaps with a cut out for a sink, those pieces are usually unsuitable for use on another job.

In Texas, this scenario is addressed by Tex Prop. Code Section 53.021 (2) (b), which states that a “person who specially fabricates material has a lien even if the material is not delivered.” Further, the lien secures payment for “the specially fabricated material, even if the material has not been delivered or incorporated into the construction or repair, less its fair salvage value.” Tex. Prop. CodeSection 53.023 (2).

So, the caveat is that you are supposed to lower your damages by the fair salvage value of the product.

Now, of course, Texas can’t make it easy and have the same rule for all types of projects. There are more hoops if this is for a residential construction project. In such instances, an extra notice must be provided, and if you fail to provide the notice, you will only be able to file a lien for any items actually provided to the project. I’ll paraphrase it, but you can see the full details here: Tex. Prop. Code Section53.253.

• Notice must be given to the owner, or reputed owner, not later than the 15th day of the second month after the month in which you receive and accept the order for the material.
• The notice must contain a statement that the order has been received and accepted, and the price of the order must be included.
• The notice must be sent by registered or certified mail.

Filing a specially fabricated material lien is complicated. Are you following all of the proper procedures to protect your lien rights?

Liening Homesteaded Properties in Texas

In previous blogs, I have discussed the differences between commercial and residential liens and about how homesteaded residential properties differ from non-homesteaded residential properties in the in-ability to foreclose on a valid lien.   What I have never really covered is how liens placed on homesteaded properties in Texas have different requirements than liens placed on non-homesteaded properties.  Since Texas is a state that really believes in a person’s rights to preserve their homestead, there are some additional requirements that often trap unwary contractors.

While this might not apply to contractors who only build “new” construction, it definitely applies to any contractor who performs work on what we commonly refer to as “residential” construction.  Typically this would be the situation where someone is already living in a home or considers it their “homestead” or primary residence.  There are several trades that often perform work on properties which are homesteaded:  roofers, A/C, pool builders and even some landscape companies (for larger projects such as retaining walls, fences).

To provide you an example that recently came to light in my own life.  I had some retaining wall work performed for my house and the company only required one party (my husband or I) to sign the contract.  Now of course, if there were any problems they could have always sued my husband for breach of contract but because they didn’t follow the requirements set out under the Texas Property Code to secure a lien for a homestead property they never had the ability to secure a valid lien on our property.

Section 53.254 of Texas Property Code sets forth the requirements for liens on homestead properties.  Below are some snippits detailing the “extra” steps:

“(a) To fix a lien on a homestead, the person who is to furnish material or perform labor and the owner must execute a written contract setting forth the terms of the agreement.”

“(b)  The contract must be executed before the material is furnished or the labor is performed.”

“(c)  If the owner is married, the contract must be signed by both spouses.”

“(e)  The contract must be filed with the county clerk of the county in which the homestead is located.  The county clerk shall record the contract in records kept for that purpose.”

Part C is the section I alluded to earlier with our contract for a retaining wall, since I didn’t sign the contract.  This puts the onus on you to specifically find out if they are married and insist that their spouse sign the contract also.  Parts A & B aren’t probably an issue for most cases since you always want a signed contract before you start working, but it does mean a “verbal” contract (also due to part C&E) would not be allowed. Part E is interesting because there is no time frame required in the Code.  Most of the time, if this provision has become an issue, we have filed the contract at that time or with the lien.  It is also an option to file the contract as an attachment to the lien.

I always try to remind people that Mechanic’s Liens aren’t a sure fire way to get the money that is owed to them but they are probably one of the strongest tools that the state allows for contractors & laborers to collect it.  So with the added complexity a homestead adds to the ability to secure the lien rights and the inability to foreclose on the lien, I believe contractors need to have their eyes wide open when having large contracts on homesteaded properties.

Defending Against A Fraudulent Lien

In order to have a fraudulent lien, you must meet four elements:

  1. Knowledge that the document/record is fraudulent;
  2. Intent that the fraudulent document be given the same legal effect as a valid document;
  3. Intent to cause financial injury, physical injury or mental anguish; and
  4. Intent to defraud. This was added to §12.002 in 2009, but this has yet to be exercised by the courts as it relates to mechanic’s liens.

Case Law
There are three cases in Texas that address fraudulent mechanic’s liens. The first one is Centurion Planning Corp. v. Seabrook Venture II, 176 S.W.3d 498 (Tex.App.- Houston [1 Dist.], 2004).Centurion’s President, Knickerbocker, filed a mechanic’s lien against Seabrook, even though there was no written contract, only an oral agreement. The Court of Appeals (Houston) found the lien to be fraudulent because Centurion did not have a licensed engineer and because an architect, engineer, or surveyor had a right to file lien only if there was a written contract. The Court relied on the first element mentioned above, that Seabrook had knowledge that the document was fraudulent. In Section 53.021 of the Texas Property Code, persons entitled to a lien only include those who execute a written contract with the owner. Here, there was no written contract, and because ignorance of the law is no excuse, the lien was deemed fraudulent.

The second case, Taylor Electrical Services, Inc. v. Armstrong Electrical Supply Co., 167 S.W.3d 522 (Tex.App.-Fort Worth, 2005), involved work done for the same owner on two different churches. Taylor alleged that Armstrong failed to deliver materials in a timely manner, causing Taylor to be behind schedule on the projects. As a consequence, Taylor withheld $6,110.00 from Armstrong as liquidated damages. Armstrong did not cash one of Taylor’s checks for partial payment on the account but instead filed a mechanic’s lien on both properties for the full outstanding balance. Nevertheless, Armstrong cashed said check after filing the liens. The court found that there was enough evidence to believe that Armstrong had the check in its possession and did not credit Taylor’s account prior to filing the lien; therefore, the lien was fraudulently filed.

The Taylor case addresses elements one and three of a fraudulent lien: knowledge that the document is fraudulent, and intent to cause financial injury. Because Armstrong possessed the check several weeks prior to filing the liens and did not credit Taylor’s account, it is reasonable to assume that Armstrong knew that the amount stated on the liens did not reflect the correct balance. As for the element of intent, Taylor had, on several occasions, stressed to Armstrong the importance of timely delivery and informed them of the potential financial losses Taylor faced if they were not on schedule; nevertheless, Armstrong sent a letter to Taylor before filing the liens that stated “[w]e do not wish you any harm in your business,” which, in the court’s opinion, was sufficient to meet the intent element because it acknowledged that by filing the lien, the business would be harmed.

In the third case, Walker & Associates Surveying, Inc. v. Roberts, 306 S.W.3d 839 (Tex.App.-Texarkana, 2010), the owner, Roberts, hired Walker & Associates Surveying, Inc. (“WAS”) and Dennis Walker (“Walker”) d/b/a Walker and Associates Construction (“WAC”) to extend a horse training racetrack. WAC had a written contract with Roberts, whereas WAS only performed a field survey for which there was no separate written contract. A dispute arose relating to the amount of clay that needed to be installed, and Walker eventually abandoned the project. WAS filed a mechanic’s lien, citing that it “performed labor and furnished material to improve [Roberts’] real property” and was owed money.

Roberts filed a motion for summary judgment on the basis that the lien was fraudulent, attaching Walker’s deposition testimony wherein he admitted that his affidavit was incorrect because the claimant was wrong, the amount due was wrong, and they had no authority to charge the additional finance charges and late fees that were included in the amount. Walker responded that he had intended to claim the debts of WAC, not WAS. The trial court granted the motion for summary judgment, but the court of appeals reversed the decision. The appellate court addressed all three elements of fraudulent lien filing in this case. As to the first element, the court found that summary judgment was not proper: “[w]e see a distinction in an affidavit that is factually inaccurate in some respect and one that is attempting to perpetrate a fraud. While this lien may be invalid and unenforceable as filed, we believe there is a fact issue on whether it is fraudulent.” The appellate court also disagreed with the trial court on the second element, intent of legal effect, as intent should not be “inferred” from “common knowledge”. On the final element, Walker had testified that it was routine business practice for his office to file a lien immediately upon completion of a project. Therefore, the court decided that Walker may not have intended to cause financial harm to Roberts.

Developing Law
The fourth and newest element to the statute, intent to defraud, is meant to exonerate those who are accused of filing a fraudulent lien due to typographical or clerical error. However, it is important to note that while an initial filing might not be accompanied by intent to defraud, there is a continual possibility that a lien claimant can develop this guilt and violate the statute. Therefore, if someone points out potential issues with your lien, it would be good practice to investigate such claims and make adjustments accordingly before proceeding any further. Just the same, it would be a good idea to inform a lien claimant of any errors in a lien filing and request that the lien be removed before asserting a fraudulent lien claim.

Other Factors
In addition to the mere filing of a fraudulent lien, the statute also penalizes the making, using, or presenting of a fraudulent lien. In addition to this scope of activities, the scope of potential guilty parties is also broad. The statute extends liability beyond the company on whose behalf the lien is filed to also include individuals who sign the lien and presumably any individual who assists in making, using, or presenting the fraudulent lien (provided the requisite intent is found).

  • Individual liability – there is individual liability for anyone who violates the fraudulent lien statute, even if they violate it on behalf of a business entity. Clearly the individual who signs the fraudulent lien affidavit has personal liability; however, it is safe to assume that those who participated with the requisite intent other than the signatory could be implicated.
  • Vicarious liability – If an individual acting on behalf of a company files a fraudulent lien, the company may also be implicated.
  • Standing – owners or debtors have the right to bring a fraudulent lien claim, though because they have the duty to defend the owner’s property from a lien, general contractors, too, may bring a claim. Tex. Prop. Code §53.153.
  • Burden – the burden of proof for a fraudulent lien falls on the party claiming a fraudulent lien.

According to Section 12.002(b) of the Texas Civil Practices & Remedies Code Annotated, when a person presents a fraudulent lien, the injured parties are entitled to the following:

  • The greater of:
    • $10,000.00; or
    • The actual damages caused by the violation;
  • Court costs;
  • Reasonable attorney’s fees; and
  • Exemplary damages in an amount determined by the court.
  • Exemplary damages can be defined as any damages awarded as a penalty or punishment rather than for compensation.

Judicial Review of Liens
Texas Government Code sections 51.901 through 51.903 provide an expedited process for reviewing a potentially invalid lien or claim. Essentially, a person challenging a lien or claim may file a motion for judicial review, which may be performed ex parte and without notice to the other side. The procedure does not give a ruling on the claims of the parties, but instead only reviews the ministerial act. However, the court can sanction a party for an inappropriate filing of the motion.

If a party’s lien is found to be invalid per the above process, there are criminal sanctions if the offending party does not promptly remove the lien. See Texas Penal Code 32.49. The offense is a Class A misdemeanor, which in Texas is a fine of up to $4,000.00, and incarceration for a period up to one year, or both.

How to Bond Around a Mechanic’s Lien

I received an email the other day asking if there was a standard form for bonding around a mechanic’s lien, so I thought it would be a good topic to write out how you actually go about bonding around a lien.  I think the first step is looking at all the options that are available to you.  This really isn’t in the scope of this article since every situation is different, but if you decide that this is the best way to proceed then the next step would be to find an insurance provider for the bond.

We really recommend going with a provider that does this in their normal course of business.  Yes, you may be able to get one of your current insurance agents to get you a bond, but in my experience, the understanding of the process and the time it takes for them to complete the process isn’t worth the trouble.  We know of a couple of local companies that we usually refer clients to, and I imagine most other construction attorneys have someone that they know is experienced with the bond process.

The next step would be to draft the Bond Affidavit.  The State of Texas does not have a bond form, but only has guidelines as to the amount of the bond and what has to be included in the bond.  Specifically, the Texas Property Code Sec. 53.172, Bond Requirements, states:

The bond must

(1)  describe the property on which the liens are claimed;

(2)  refer to each lien claimed in a manner sufficient to identify it;

(3)  be in an amount that is double the amount of the liens referred to in the bond, unless the total amount claimed in the liens exceeds $40,000, in which case the bond must be in an amount that is the greater of 1-1/2 times the amount of the liens or the sum of $40,000 and the amount of the liens;

(4)  be payable to the parties claiming the liens;

(5)  be executed by:

(A)  the party filing the bond as principal;  and

(B)  a corporate surety authorized and admitted to do business under the law in this state and licensed by this state to execute the bond as surety, subject to Section 1, Chapter 87, Acts of the 56th Legislature, Regular Session, 1959 (Article 7.19-1, Vernon’s Texas Insurance Code);  and

(6)  be conditioned substantially that the principal and sureties will pay to the named obligees or to their assignees the amount that the named obligees would have been entitled to recover if their claims had been proved to be valid and enforceable liens on the property.

After the bond is drafted and sworn to, it is filed in the county where the property in question is located.

While this process is not necessarily difficult, having a construction attorney and bond company that has repeatedly done this process can save you time and headaches, especially if your contracts require you to indemnify a person or entity by bonding around a lien and time becomes of the essence.  

Alternative to a Mechanic’s Lien – UCC Filing Part 2

I first need to apologize for missing a few months of my reminders. The last few months have been a perfect storm of trials for me and I always put a high priority on making sure I’m as prepared as possible. So, some of the peripheral items do get put on the back burner sometimes.

Last time, I discussed the distinctions between “fixtures” and “non-fixtures” in construction projects and also explained why this distinction is important to a contractor. I also discussed how to perfect a security interest in a non-fixture. In this article, I want to continue this series and discuss ways to perfect your security interests in fixtures and how these UCC filings help you gain priority over other potential claimants (such as banks or other lien holders).

To recap, a “Fixture” means goods that have become so related to a particular real property that an interest in them arises under the real property law of the state in which the real property is situated. In other words, fixtures are, generally, those products which are physically attached to the building. There are numerous examples of this on a construction project – carpet, tile, countertops, and bathtubs.

A party with a security interest in goods which are considered a fixture must perfect this interest by making a “fixture filing.” Such is accomplished by filing a financing statement in the county where a mortgage on the real property would be recorded. In addition to the usual requirements for a financing statement (as were discussed last time – UCC Filing – Part 1), a fixture filing financing statement must contain the legal description of the real property to which the fixture is attached.

Determining priority in relation to these types of filings can be extremely tricky. However, the general rule is that in a contest between a holder of a security interest in a fixture (i.e. you, for example) and a holder of an interest in the real property to which the fixture is attached (i.e. the mortgagor, for example), the first party to file a fixture filing or record its real property interest prevails (which would almost always be the mortgagor).

However, a contractor can prevail over a mortgagor or someone with a prior interest, in the following situations:

1.   The security interest is perfected in any manner authorized by the code PRIOR to affixing the good to the property. In this case, that security interest will prevail over a real property interest if (1) the collateral is a readily removable office or factory machine; (2) the collateral is readily removable equipment that is not primarily used or leased for use in the operation of real property; or (3) the collateral is a readily removable replacement of a domestic appliance that is a consumer good.

2.   A security interest in fixtures, whether or not perfected, has priority over the conflicting interest of an encumbrancer or owner if (1) the encumbrancer or owner has, in an authenticated record, consented to the security interest or disclaimed interest in the goods as fixtures or (2) the debtor has a right to remove the goods against the encumbrancer or owner. This is something that would have to be included within a security agreement contained within your contracts.

3.   And, if you are not dealing with a construction mortgage but instead are dealing with a conventional mortgage or home equity line of credit (such as in remodel situations), a secured party who makes a fixture filing within 20 days after the fixture was attached to the property (i.e. you) will prevail over a real property interest in the same fixture that was recorded prior to affixation (i.e. the mortgagor).

In layman’s terms, what does this mean to you? Those services which are not the initial construction of a residential or commercial project have a high probability of falling within Exception 3, listed above. If you don’t fit into Exception 3, you can easily fit under Exception 2 and protect your interest in the fixtures you supply if you ensure that your contracts have a security agreement within the terms which is signed and consented to by all owners of the property. If you don’t fall within Exception 3 and do not have your contractual language in order, pursuant to Exception 2, the only thing you can do is see if the goods that you are providing to the Project are goods designated in Nos. 1-3 within Exception 1.

Generally, if you provide goods which can be considered a fixture to a construction project, the real point is that you can usually protect your interest but you have to have a plan, which is set prior to the delivery of the goods, as to how you are going to ensure that the goods you provide fall within one of these exceptions and, thus, have priority over other encumberances to the property.

While this might sound very complicated to a non-lawyer, this is a perfect example of why business owners should meet with their attorney, periodically, to discuss their business, what they are doing, what the business goals are, and how they can legally protect all of their interests. A lawyer can usually help make sure that your corporate formalities, contracts, employment policies, financial interests, etc. are all in order where they protect you. The real trick is seeking the advice before the problems arise!!!

Alternative to a Mechanic’s Lien – UCC Filing

There is a great deal of confusion as to the term “fixtures” in the construction industry and even greater confusion as to what rights a contractor, subcontractor, or supplier has to the fixtures or non-fixtures that are incorporated into a construction project.  Over the next few months, I am going to attempt to explain the difference between a fixture and a non-fixture and provide alternatives to the Texas’ mechanic’s lien process for securing the goods and services provided on a property.

“Fixtures” means goods that have become so related to particular real property that an interest in them arises under the real property law of the state in which the real property is situated.  In other words, Fixtures are generally physically attached to the building.  There are numerous examples of this on a construction project – carpet, tile, countertops, bathtubs, … This should not be confused with the term “removable.”   See http://www.kmdalegal.com/construction-law/foreclosure-of-your-mechanics-lien/

Likewise, “Non-Fixtures” would be those goods which are made a part of a construction project but not permanently affixed as to become an actual part of the property.  For example, furnishings, equipment such as sound systems, tv’s, refrigerators and light fixtures, etc.

You might wonder how this relates to you and how this helps you get paid. I am sure at this point you have either personally been burned or know someone who has been burned by filing a mechanic’s lien on the property only to have your lien “foreclosed out” by the bank leaving your remedies extremely limited.   However, in Texas, there are various filings that you can file with the Secretary of State to secure your interest in the fixture or non-fixture you provide to a property.  This is important to you because, in some situations, you can have priority over a bank that has provided the construction loan for the property thus securing your rights even through a foreclosure.

Now I want to go over how Security Interests in Non-Fixtures works. The Uniform Commercial Code Section (UCC) is the central filing office for certain financing statements and other documents provided for under the Uniform Commercial Code since 1966.  Some of the main documents which are filed are financing statements and certain types of liens.  Securing non-fixtures should be done through the filing of a financing statement with the secretary of state.   The financing statement should state: the name and mailing address of the debtor; the name and mailing address of the secured party; an indication of the collateral covered.   The authenticated security agreement itself may be filed as the financing statement if the parties so desire.  “Authenticated” is defined as signed. The financing statement should be filed as soon as possible but certainly not later than 20 days after the first delivery of goods to the person with whom your contract is with.

I know what you are thinking.  More paperwork?  YES.  With our whole country struggling financially, unfortunately, the primary way to protect yourself is through a paper trail.   The good news is that a financing statement or security agreement are simple forms that you probably can have drawn up one time through an attorney.  This does not have to be complicated but you do have to go through the process of having something customized to your type of business that you can repeatedly use for your various customers and clients.

Next month, I am going to discuss Security Interests in Fixtures and explain how these UCC filings can help you gain priority over other potential claimants