Anyone can physically file a lien claim if they have signed and notarized paperwork and pay the applicable filing fee. The real question is whether or not such party is legally entitled to the lien claim. If the lien filing is "fraudulent", then the filing party may face minimum civil penatlies of $10,000.00 in addition to any other damages caused by the lien filing plus attorney's fees. As always, the proper filing of a lien claim is dependant on numerous factual determinations. Also, just because a lien is not filed properly, doesn't necessarily mean that the lien filing was "fraudulent". If a lien is filed against your property, I would suggest contacting a qualified real estate attorney to discuss the facts in more detail so that you know what rights may be available to you as well as the potential costs which may be incurred in exercising those rights. Hopefully, the contractor will not exercise such a drastic action, particularly if he has not performed any work or provided any materials to your property.
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I assume that the roofing work is for your house, and that your house is your homestead. For the house to be your homestead, the house has to be in your name and you must live there. If so, for a contractor to be entitled to file a valid mechanic's lien on the homestead, he would have to comply with Chapter 53 of the Texas Property Code. Among the requirements are a written contract signed by the owners of the homestead (husband and wife), certain homestead warnings, and filing of the contract with the county clerk. Those formalities do not usually happen. Without them, any attempted mechanic's lien filing would be invalid.
Under Texas law, for any mechanic's lien to be valid, there has to be debt that is owed for work on the project. With no work, there can be no valid lien. If the contractor does file a mechanic's lien, the contractor is required to provide you with notice of lien filing within five days of the filing by certified mail. So, if you receive notice of certified mail, make sure that you claim it so that you can determine what the contractor is claiming and for how much.
If the contractor did not properly perfect a homestead mechanic's lien contract, you should write a letter by certified mail to demand that the lien be released, pointing out that the property is your homestead, and why the contractor has not perfected a homestead mechanic's lien. If the contractor does not voluntarily release the lien, he could be liable for a fraudulent lien under Chapter 12 of the Texas Civil Practice & Remedies Code. Chapter 12 can award damages of $10,000 or actual damages whichever is greater, plus attorney's fees.
You can also demand that the lien be released under Section 53.160 of the Texas Property Code, which provides for a summary procedure (no trial necessary) for the removal of an invalid lien on someone's homestead.
I have a lot of mechanic's lien materials (the law, notice forms, deadline charts, etc.) at my web site, The Construction Report. The web address for The Construction Report is:
Since you are in the Dallas area, you may wish to take advantage of my free hour of consultation for new clients. If you make an appointment, please bring copies of your pertinent paperwork.
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