I'm a subcontractor who performed work at an apartment complex and I want to file a lien but the lien process is very clear about any errors, so I want to make sure I file it correctly. Should I file as a residential project or commercial??
You should follow residential lien procedure when you perform work on a project whereby one of the owners of the property ALSO uses it as a residence (Texas Property Code Section 53.001(8-10).). Apartment complexes are generally rental properties that are not considered residences for homestead purpose or otherwise--unless the complex contains condos that are actually owned by individual residing in the unit. As such, work performed on apartment complexes is usually of the "commercial" nature because you are likely working under a contract with the complex owner rather than the actual resident.
The general contractor for the project can provide you with the necessary information to discern whether the property is commercial, residential, or homestead. General contractors MUST provide certain notices to the owner when dealing with residential projects--and you should probably make a written request for such information for every project for which you are a subcontractor. I hope this helps--Good luck.
It is good that you ask. Many claimants make mistakes and lose their lien rights.
Chapter 53 of the Texas Property Code sets out the requirements for mechanic's liens in Texas. Under the definitions section (section 53.001), the following appear concerning residential matters:
(8) "Residence" means a single-family house, duplex, triplex, or quadruplex or a unit in a multiunit structure used for residential purposes that is:
(A) owned by one or more adult persons; and
(B) used or intended to be used as a dwelling by one of the owners.
(9) "Residential construction contract" means a contract between an owner and a contractor in which the contractor agrees to construct or repair the owner's residence, including improvements appurtenant to the residence.
(10) "Residential construction project" means a project for the construction or repair of a new or existing residence, including improvements appurtenant to the residence, as provided by a residential construction contract.
So, you need to provide more information as to the ownership involved, and the number of units in the property.
If the project qualifies as residential, you have to provide the owner with a funds trapping notice under Section 53.252 by the 15th day of the second month after the month of unpaid work. If the property is not residential, and instead is commercial, then the funds trapping notice (under section 53.056) is due by the 15th day of the third month after the month of the unpaid work.
The affidavit claiming mechanic's lien must be filed by the 15th day of the third month after the accrual of the indebtedness. Indebtedness accrues at different times based on the circumstances set out in Section 53.053. If the project is not residential, then the affidavit claiming mechanic's lien must be filed by the 15th day of the fourth month after the accrual of indebtedness. However, to capture the statutory retainage, a mechanic's lien must be filed no later than the 30th day after the project is finally complete.
Texas mechanic's lien laws are not easy. You really need to retain a construction attorney to evaluate your situation and to help you secure and perfect your claim.
As a public service, I have a mechanic’s lien and bond claim web site, The Construction Report (http://www.theconstructionreport.org) which has the full text of the mechanic’s lien laws (Chapter 53 of the Texas Property Code) and bond claim laws (Chapter 2253 of the Texas Government Code – the old McGregor Act), forms for notices and liens, deadline charts for notices and claims, the current and back issues of The Construction Report newsletter, and other materials of interest to construction professionals. If you need a ready reference for the mechanic’s lien or bond claim laws or deadline charts, feel free to consult The Construction Report.
It depends on who you did the work for. If you did it for a Tenant, then the lien would be considered residential. In that instance, your lien claim would only attach to the Tenant's interest in the property, that being a leasehold interest. Once the lease terminates, so does your lien claim. If you performed work for the apartment complex owner, manager, or other agent, then it would be considered a commercial claim. If you are unsure, then I'd suggest with complying with all residential homestead requirements. That way you are covered no matter what the nature of the property is ultimately determined to be. I will say, in my experience, that most lay persons find it difficult to properly file mechanic's liens without the assistance of qualified legal counsel. Therefore, my advice would be to find a qualified real estate attorney to assist you if your claim is significant enough to justify the cost. Good luck.
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