There are a few steps contractors
should go through at the very beginning of the lien and bond claim process
before any notices are sent. Why? Before you get started, you need to know the
type of project, property and your status (as general contractor, subcontractor
or sub-subcontractor). These factors
will establish whether you are following the lien claim or bond claim process
and will largely determine the deadlines you must meet and the procedures to be
followed to perfect your claim.
Private Property v. Public Property = Lien Claim v. Bond Claim
Private property is subject to a lien while public property is
not.
Accordingly, if property is owned
privately, contractors should follow mechanic’s and materialman’s lien
procedures.
If property is public, contractors
should follow bond claim procedures.
Private Projects = Lien Claim
Private projects are construction projects on property
owned by individuals or companies, not
owned by governmental entities. Chapter
53 of the Texas Property Code
addresses claims arising out of work on private projects / property.
Private projects may be further
classified as commercial, residential, or homestead.
Commercial Projects
Commercial projects are
construction projects that do not involve residences. Examples would include office buildings,
restaurants, and warehouses.
Residential Projects
A
residence is defined as a “single-family house, duplex, triplex, or quadruplex,
or a unit in a multiunit structure used for residential purposes, that is owned
by one or more adult persons and used, or intended to be used, as a dwelling by
one of the owners.”
A
residential construction project is a project for the construction or repair of a new or existing residence, including improvements appurtenant to the
residence.
Residential Homestead Projects
Generally, homestead property is property that an
individual intends to use as his or her residence. See Texas Property Code § 41.002 and article 16, section 51 of
the Texas Constitution.
Texas Public Projects = Bond Claim
Public property is owned by
governmental entities and public projects are those in which governmental
entities make public works contracts. In
other words, the General Contractor has its contract with a governmental
entity.
Governmental entities include but
are not limited to the following: a governmental or quasi-governmental
authority authorized by state law to make a public work contract, the state, a
county, or a municipality, a department, board, or agency of the state, and a school
district or a subdivision of a school district.
Federal Public Projects = Miller Act
Federal projects are those
projects on US government property or projects on behalf of the US government. The
Miller Act governs claims on federal public work projects
By Sarah F. Berry, Attorney
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