The contractor provided me with a release of lien and a statement of payment in full on November 27th. Unfortunately, I never had the subcontractor's contact information. I pressured the GC to have the subcontractor pick up their scaffolding from the front of my house and the unused building materials in my garage, but the subcontractor stood me up two Fridays in a row. The subcontractor's abandoned scaffolding was used by my next GC until January 26th. I received my first certified letter from the subcontractor on the 27th. His letter was sent the 25th of January, and the intent was to express lack of payment from the contractor for services and materials.
Whether the sub was fired does not affect their ability to assert a lien. The most important factors are whether all the owners of the homestead (both spouses, if you are married) signed a written contract with the general contractor; whether the lien notice was mailed to you within the legal deadline; and what the lien notice says.
I would strongly recommend that you talk to an attorney familiar with construction liens before you pay any more money to your general contractor. You may have legal liability for any funds you pay after you receive notice of a lien claim.
For purposes of discussion, I assume that the construction work was for your house, and that your house is your homestead. For the house to be your homestead, the house has to be titled in your name and you must live there. The contractor that contracted with you is called the "original contractor" under Chapter 53 of the Texas Property Code (which governs the propriety of mechanic's liens). If the property at issue is your homestead, then for a contractor to be entitled to file a valid mechanic's lien against your 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.
If the original contractor did not properly perfect a homestead mechanic's lien contract, then no contractor, subcontractor or supplier can file a valid mechanic's lien against your homestead. You should write a letter by certified mail to the lien claimant to demand that the lien be released, pointing out that the property is your homestead, and that the original contractor has not perfected a homestead mechanic's lien. If the lien claimant 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.
No lien claimant can force you to sell your home without first filing a valid homestead mechanic's lien. So, the determination of whether proper lien filing occurred is important.
If the work at issue was by a subcontractor, the subcontractor would have to provide to you by certified mail notices for you to trap funds. If you did not receive any certified mailings from the subcontractor with funds trapping notices, then the lien would be invalid. For a residential project, the deadline for the funds trapping notice to the owner is the 15th day of the second month after the month of the unpaid work.
Also, the subcontractor would have to mail to you by certified mail notice of lien filing within five days of filing. If you did not receive the certified notice of lien filing, again the lien would be invalid.
If there was a written contract signed by both husband and wife, and if the lien was filed and notices given timely, the subcontractor CAN get a valid lien even if they were fired by the general contractor. Even if the subcontractor files a valid lien, if they don't file suit to enforce the lien within one year, the lien becomes unenforceable.
You may want to talk to a lawyer and determine whether a valid lien can be filed, how to get it removed if it is invalid, and talk to the general contractor about whether they paid the sub.
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