Allen, TX asked in Real Estate Law and Contracts for Texas

Q: How do I fight an affidavit of lien by the AC contractor?

hi I got an AC contractor to replace the compressor of my house AC after it failed. They came and replaced the compressor. But the new compressor they put on failed in 3 days. They sent me a $5240 invoice, which I refused to pay. Now they send an affidavit of Lien on the house. How do I fight it?

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2 Lawyer Answers
John Michael Frick
John Michael Frick
  • Frisco, TX
  • Licensed in Texas

A: 1. Send a written request for warranty service on the new compressor to both the AC contractor and manufacturer.

2. Give the AC contractor and manufacturer a reasonable time to complete the warranty repairs. If your warrant specifies how long they have to make the repairs, use that amount of time. Otherwise, I recommend giving them 30 days to complete the repair.

3. If they fail to fix the compressor within a reasonable time, hire another AC contractor to make the repairs. Keep any defective parts as evidence.

4. Deduct the new AC contractor's repair cost from the invoice you owe to the original AC contractor. Send a letter to the original contractor with a copy of that invoice notifying it that you have deducted the repair cost you paid to the new AC contractor from what you owe, and include a check for the balance owed with a release of lien for the original AC contractor to sign.

5. If the original AC contractor signs the release, record it in the deed records.

6. If the original AC contractor does not sign the release, file a motion under the Texas Property Code to have the lien removed and offer into evidence each of the foregoing letters.

Teri A. Walter
Teri A. Walter
  • Houston, TX
  • Licensed in Texas

A: I certainly agree that you should notify the contractor about the problems, and request warranty service.

As to the lien, in order for the contractor to get a valid lien against homestead property, there must be a written contract, signed by both spouses. If there is not (and many contractors are careless about this), then the lien is invalid.

If there is an invalid lien against your property, you have three options:

1. Do nothing - the lien will become dormant and unenforceable in a year. If the contractor files suit to enforce the lien before then, you can respond with a counterclaim for their breach of the contract, and for removal of the lien.

2. If you need to sell or refinance the property, you'll probably want to bond around the lien. This means posting a bond to cover the lien; the bond replaces the property as security for the debt.

3. The most expensive option is to file suit to remove the lien, but this can be done at any time before the lien goes dormant.

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