Often times in residential projects both general contractors and subcontractors find themselves in situations where they believe it is best for them to file a lien. Unfortunately, many of these liens are invalid due to the fact that the builder is unaware that the property is the owner’s homestead.
The fact that the property is considered homestead property does not automatically invalidate the builder’s lien. However, the builder’s ignorance to the homestead status makes it very unlikely that the builder complied with Sec. 53.254. of the Texas Property Code. Failure to comply with this section of the code invalidates the lien on a homestead.
The critical requirements of the section are enumerated in the statute and include required notices. However, one of the most common ways that builders fail to comply with the statute is that they fail to get a signature from both the husband and the wife in situations where the owners are married. Many builders believe that one spouse’s commitment to the work binds both spouses and the property. This is simply not the case. To affix a lien to the property it must be compliant with the code and this means that it must be signed by both spouses.
Given the importance of this step, it is probably best that a builder that regularly handles residential projects, incorporate a signature space on its contract for both spouses and ensure that both are signed before commencing any work
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