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When is a Property Considered a Residential Project in a Mechanics Lien?

December 8, 2010 By Leave a Comment

Over the last couple months I had a few posts  over the ways that you can remove a mechanic’s lien if needed.  This time I would like to go a bit more in-depth about how different types of residential properties effect how a mechanic’s lien may be enforced.

I do think there is a distinction between homestead and non-homestead residential.  Not in terms of what is required, meaning the notice letters and mechanic’s liens or their deadlines, but in whether or not you can truly foreclose on your lien.  As you might know, Texas protects our homesteads!  You could have a ten million dollar homestead but they are not going to make you sell it and give the equity to your creditors.  As a result, a lien claimant is not going to be able to foreclose on a residential property that is homesteaded.  However, I have seen many situations where people were building homes with the intent to live in them as their homestead at some point but were currently residing in another home which already had the homestead exemption.  It has been my position that you can’t homestead 2 properties; therefore, the residence that was currently being built had not become homesteaded yet.

In order for a property to be considered “residential” pursuant to the Texas Property Code, it must be:  (A)  owned by one or more adult persons;  and (B)  used or intended to be used as a dwelling by one of the owners.  If the residential home was actually owned by a corporation (as an investment, flips, etc.), otherwise, it would not qualify as a residential project because it is not owned by one or more adult persons.  One example I see a lot of is a spec home.  While a spec home could obviously be considered a residential development vs. a commercial development, does it really meet the Texas Property Code requirements of a residential project? I don’t believe so: the owner of the property is most likely the company building it and is intending on selling the property, not having an owner of the company living in it.

I know you are all saying, well, this is interesting and all but what difference does it make to me how the Property Code distinguishes the different construction projects????  Well, let me tell you, if you want to properly perfect your mechanic’s liens, you must know what type of project it is pursuant to the Code.  Residential projects have very specific time lines and requirements for their liens and notice letters.  If you miss-characterize a property, chances are you are not properly perfecting your lien.

Filed Under: Construction Law, Mechanics Lien

Alternative to a Mechanic’s Lien – UCC Filing

December 7, 2010 By Leave a Comment

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

Filed Under: Construction Law Tagged With: , , ,

Some Good News for the North Texas Construction Industry

November 17, 2010 By Leave a Comment

Ran across these stories today:

Commercial real estate outlook improving

Commercial property lending coming back to life

A few highlights from the articles:

- North Texas commercial real estate experts expect further recovery next year and say they hope the market will be mostly righted by 2012.

- Petersen predicted “moderate economic growth next year” for the Dallas-Fort Worth area

- “The commercial mortgage-backed securities market has roared back to life,” he said. “And some community banks have also stepped up.”

- commercial property and apartment lending was up by almost a third in the most recent quarter, and the biggest jump–more than 100 percent–was for industrial buildings, according to the Mortgage Bankers Association.

- “If you are a developer, by the end of 2011 you need to think about building.”

- With retail construction at a virtual standstill, merchants are slowly filling up empty space – even sites that might have once been passed over. “We are filling up centers today that we couldn’t fill up in better times,”


Beyond the Dallas Morning News stories the ABC is showing the south’s BCI (Back Log Indicator) as increasing by .79 months year on year (from 5.76 to 6.55 months).  You can see the full report here.   Of course, they take the point of view that it’s falling from the July number, but I think the last few quarters are artificially inflated by all the stimulus  projects.

Filed Under: Construction Tagged With: , ,

Another Reason You Should Have Your Change Orders Documented

November 11, 2010 By Leave a Comment

Change Order
image via: photobucket

Filed Under: General Tagged With: ,

How to Remove a Mechanic’s Lien – Part 2

September 8, 2010 By Leave a Comment

Last month we started talking about how to remove a mechanic’s lien if it fell into either the category of a valid lien or an invalid/fraudulent lien. This month I would like to cover a third category of liens which are liens that were once considered to be valid but are now past the Texas Property Code’s foreclosure time-frame.

Generally, this situation occurs when an Owner, builder or General Contractor had financial problems and multiple subcontractors have filed liens on the property. Most of these situations involve an Owner / General Contractor or Builder being substantially the same person, i.e. they are owned by the same person or entity but might have different corporate names. In situations where the financial conditions were so dire that multiple liens were placed on property, the property often is foreclosed on by the financial lender. At the foreclosure sale, the Lender will attempt to auction the property and generally opens the bidding at the current value of the existing loan on the property plus interest, penalties and attorney’s fees. At the foreclosure sale, the purchaser takes the property subject to any liens which are not considered “inferior” to the Lender (which by the way is the subject of heated debate). The second alternative is that no one successfully bids at the Foreclosure Sale, the Lender purchases its own loan and then the Lender later sells the property to a subsequent purchaser.

If you purchase the property at a foreclosure sale, you will definitely end up having to figure out how to obtain “clear title” to the property. If you purchase it from the Lender directly and not through a foreclosure sale, you could possibly have trouble obtaining a loan to purchase the property thus requiring you or the lender to obtain “clear title” to the property.

These situation can be messy and not for the faint of heart. The best way I have seen to clean all these up is to notify all of the lien holders that the home was purchased at the foreclosure sale by the Lender or a new owner. The bank / owner would want to demand that the lien holder release its lien. If the bank / owner has some cash and some room to play with it is always good to offer some sort of settlement (for instance .10-.25 cents on the dollar) for a sworn affidavit releasing the lien. The bank / owner would need to threaten the lien holder that failure to come to an agreement or remove the lien would necessitate the filing of a lawsuit against them for improper cloud of title. The only way this would truly work would be if the statute of limitations had run and the lien holder was truly not able to foreclose their lien out. This can get complicated because industrious attorneys can always try to find ways to say that their lien was not truly “inferior.” If it was another lien holder that foreclosed the lien instead of the bank, the question of whether or not the other lien holders’ liens were “inferior” to the foreclosing lien holder can get even more complicated.

Generally, you should know that the limitations are as follows:

• Non-Residential – 2 years after last day claimant could have filed lien affidavit or 1 year after completion / abandonment / termination of original contract, whichever comes last.

• Residential – 1 year after last day claimant could have filed lien affidavit or 1 year after completion / abandonment / termination of original contract, whichever comes last.

• Bond on Lien – 1 year from notice of the bond filed.

In conclusion, buying foreclosed properties, whether they be lender or other lien holder foreclosures, can be a messy and complicated process. There are generally methods of trying to obtain clear title. However, they can only be successful if your purchase truly wiped out their lien pursuant to the Texas Property Code and subsequent case law. Additionally, these methods can be time consuming and costly. If there are liens on the property you purchased, you are probably going to have a hard time getting a title policy on the property without having the liens removed or released. The only way to do this would be to (1) come to an agreement for the release by the lien holder; or (2) obtain an order from a Court declaring the liens to be invalid and entering an order removing them from the county deed records. For instance, if there are 25 mechanic’s liens, you might be able to find 15 of them and convince them to release their liens. However, that still leaves the other 10 lien claimants that you will eventually have to sue to try and obtain an Order removing them from the property.

Remember, it is best not to go into these transactions blind. Have a title report pulled prior to purchasing the property and consult with your banking, title and legal advisors to make sure that you would be able to obtain clear title on the property if you in fact purchased it.

Filed Under: Construction Law Tagged With: , , ,
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