A Lien Was Filed on My Property. How to Remove an Invalid Lien in Texas

First question: is the lien actually invalid?

Many liens that owners call bogus are valid liens for a disputed debt. A lien is invalid for removal purposes when the claimant failed a procedural step the statute requires, not merely because the owner believes the work was poor or the amount is too high. Those are defenses to the underlying claim and get decided in the main case, not on a summary motion.

So the first step is a checklist against Property Code chapter 53. Compare the month the claimant last worked against the affidavit's filing date. Ask for copies of every notice the claimant says it sent and the certified mail receipts. Read the affidavit against the required contents in § 53.054. If the property is a homestead, look for a written, recorded contract signed before the work began. The deadlines themselves are collected in Texas mechanic's lien deadlines.

The summary motion under § 53.160

Texas Property Code § 53.160 lets a party who objects to the validity or enforceability of a lien file a verified motion to remove it, in a suit to foreclose the lien or in a suit for declaratory relief about it. The motion must state the legal and factual basis and may attach affidavits. Removal is available only on the grounds the statute lists:

1. The notice of claim was not timely furnished to the owner or original contractor as §§ 53.056 or 53.057 require.
2. The affidavit did not comply with the contents rule in § 53.054 or was not filed as § 53.052 requires, which includes filing late.
3. Notice of the filed affidavit was not furnished under § 53.055.
4. The retainage deadlines passed and the owner paid out the retainage and other funds owed before the claimant perfected the lien and before the owner received notice of the claim.
5. All funds subject to the notices were deposited in the court's registry and the owner has no further liability.
6. On a homestead, no contract was executed or filed as § 53.254 requires, or the affidavit or notice lacked the required homestead language.
7. The claimant signed a valid and enforceable waiver or release of the lien or claim.

The claimant does not have to file a written response. The hearing cannot be held until 30 days after the claimant has answered or appeared in the case, the claimant must be notified at least 30 days before the hearing, and the claimant may take expedited discovery on the listed issues (§ 53.160(c)). At the hearing the claimant bears the burden of proving the notices and affidavit were furnished as required; the movant bears the burden on the other grounds (§ 53.160(d)). The court must rule promptly and either deny the motion or enter an order removing the lien. Neither side may take an interlocutory appeal (§ 53.160(e)).

Example

Suppose a Richardson office owner discovers a lien affidavit from a flooring subcontractor it never hired. The owner's general contractor paid the subcontractor nothing, but the subcontractor's last work was in February and the affidavit was recorded on July 20. On a non-residential project the affidavit was due by June 15, the 15th day of the fourth month after February. The owner files a verified motion citing ground two, attaches the general contractor's daily logs showing February as the last month of work, gives 30 days' notice, and asks the court to remove the lien and award fees. The subcontractor's claim against the general contractor survives; its claim against the land does not.

What happens after the removal order?

The claimant gets one more chance. Within 30 days after the order, the claimant may stay the removal by posting a bond or cash deposit in the amount the court set, which must be a reasonable estimate of the owner's likely fees and costs and may not exceed the lien amount (§ 53.161). If no bond is posted in time, the owner records a certified copy of the order with the clerk's certificate that no bond was filed, and the lien is removed and extinguished as to creditors and later purchasers for value (§§ 53.157(6), 53.161). Removal of the lien does not erase any debt the owner may still owe the claimant on the contract.

I need clear title this week. What are my options?

Bond around it. Any person may file with the county clerk a bond to indemnify against the lien, signed by a corporate surety licensed in Texas (§ 53.171). The bond must be for twice the lien amount, or, if the liens exceed $40,000, the greater of 1.5 times the liens or the liens plus $40,000 (§ 53.172). Once the bond and the statutory notice are recorded, the lien is discharged from the property and the claimant's recourse is the bond. Title companies and lenders accept this routinely, and it lets a sale or refinance close while the dispute continues.

Two faster, cheaper paths exist when the lien has a problem that is not worth litigating: a release negotiated for a reduced payment, recorded under § 53.152, or a demand on the claimant pointing out the defect and requesting a voluntary release before fees start to run. Both work best when the owner's letter cites the specific statutory failure.

Who pays the attorney's fees?

In a proceeding to foreclose a lien or to declare a lien invalid or unenforceable, the court shall award costs and reasonable attorney's fees as are equitable and just (§ 53.156). That cuts both ways: an owner who attacks a valid lien can end up paying the claimant's fees, and a claimant who defends a defective lien risks paying the owner's. For a lien arising from a residential construction contract, the court is not required to order the homeowner to pay the claimant's fees.

When is a lien fraudulent, and what does that add?

A lien is fraudulent, not merely invalid, when the filer knew the document was a fraudulent lien, intended it to be given legal effect, and intended to cause the owner physical, financial or emotional injury (Tex. Civ. Prac. & Rem. Code § 12.002(a)). The remedy is substantial: the greater of $10,000 or actual damages, plus court costs, reasonable attorney's fees, and exemplary damages in an amount the court determines (§ 12.002(b)).

Chapter 12 is not a tool for every contested lien. A person who claims a lien under Property Code chapter 53 is not liable under § 12.002 unless the person acted with intent to defraud (§ 12.002(c)). A contractor who filed a day late, or overstated an honest claim, has an invalid lien, not a fraudulent one. Liens for amounts the filer knew were not owed, liens filed by someone with no contract on the project, and liens used to pressure an owner in an unrelated dispute are the cases where chapter 12 fits. The claim is brought in the main lawsuit alongside the motion to remove.

Mistakes owners make

• Paying the claimant to go away without checking whether the general contractor already received that money, which converts a lien problem into a double payment.
• Filing the motion without verifying it or without giving the full 30 days' notice, which forfeits the hearing date.
• Arguing the quality of the work at the summary hearing; the court may only consider the listed grounds.
• Ignoring the lien until closing, when the bond becomes the only option and its premium is an added cost.
• Threatening a chapter 12 claim in writing against a claimant whose lien is late but honest, which can backfire on fees.

For what a valid lien does and what the owner owes when the paperwork was right, read how mechanic's liens work in Texas. Tina Wysk represents owners and claimants in lien removal and lien enforcement proceedings as part of her construction litigation practice in Dallas.