Filing a mechanics lien in Texas may initially seem intimidating. The rules change depending on what role you play in a construction project, and there are also specific regulations that you may not encounter when working in other states.
The mechanics lien is the most powerful tool you have in ensuring payments. Securing your lien rights mean you have a claim on the property in case payment issues arise. Without your lien rights, it’s possible to lose your money without any legal repercussions on the client that failed to pay. With the mechanics lien, you are in the best position to recoup on what you put in a construction project.
To secure your lien rights in TX, sending preliminary notices–also called pre-leins, notice of intent to lien, and monthly preliminary notices–is crucial. Read our article on how to file a preliminary notices in Texas to get more information on the steps you need to take to ensure you don’t lose your right to file a mechanics lien in Texas.
Whether you’re a contractor, a subcontractor, or a material supplier, this guide should help you understand everything you need to know about filing a mechanics lien in Texas.
- Who can file a mechanics lien in Texas?
- Submitting pre-lien notices
- How do I file a mechanics lien?
- Enforcing the mechanics lien in Texas
- What are the common mistakes when filing a Texas mechanics lien?
Who can file a mechanics lien in Texas?
Wondering if you’re eligible to file a Texas mechanics lien? If you’re one of the following, you have the right to secure payments via your lien rights.
Mechanics liens in Texas secure payment for construction participants who have:
- furnished labor or materials to a construction project or repair;
- fabricated special materials for a project, even if the materials have not been delivered or incorporated into the project yet; and
- prepared a plan for the project as an engineer, architect, or surveyor.
The qualifications mentioned above may seem too broad, and that’s because they are. The statutory rules on which parties are entitled to file a mechanics lien are fairly general, and there are also a few key things that you must note:
Do landscapers have the right to file a mechanics lien in Texas?
Yes, they do. According to Sec. 53.021(d) of the Texas Property Code, a person who provides labor, material, or other supplies “for the installation of landscaping for a house, building, or improvement” are entitled to a lien.
Do parties who perform demolition services have a right to file a mechanics lien?
Yes, as stated in Sec. 53.021(e) of the Property Code. Parties who furnish labor or materials for the demolition or a real property may file a mechanics lien.
Do all architects, engineers, and surveyors automatically have lien rights?
Not necessarily. They must first have designed or provided a “plan or plat under or by virtue of a written contract with the owner or the owner’s agent, trustee, or receiver in connection with the actual or proposed design, construction, or repair of improvements on real property…” (from Sec. 53.021(c)).
Submitting pre-lien notices
Pre-lien notices are very important in securing your right to file a mechanics lien. Failing to file the required notices will render your mechanics lien null and void. Sometimes pre-lien notices can also help you get paid without having to go through the mechanics lien process. Property owners and general contractors in large-scale projects may lose track of which parties still need payment, and sending them a notice can catch their attention and get them to pay you right away.
It is highly recommended that you pay keen attention to the deadlines and requirements that are related not just to the actual mechanics, but most especially to the notices that you have to serve before you file a lien claim.
For Prime Contractors
Prime contractors are not required to submit pre-lien notices in Texas, but it’s still a good idea to do so.
An exception to the non-requirement may occur if a contractor is hired to provide specially fabricated materials to a project. These fabricated materials may be something that is applicable only to the project in question and is reasonably unsuitable for use in any other construction.
In this case, the contractor will have to submit a notice to the owner to protect their lien rights. The notice must be handed to the owner before the 15th day of the second month following the month in which the contractor receives and accepts the order. If, say, that the order was received in January, the notice must be handed to the owner by March 15th.
The notice must also include (1) a statement that the order has been received and accepted, and (2) the price of the material to be fabricated. Note that the material does not have to be delivered and incorporated into the project before this notice can be sent.
Also note that the notice “must be sent by registered or certified mail to the last known business or residence address of the owner or the reputed owner or the original contractor, as applicable” (from Sec. 53.253(e)).
For Subcontractors and Material Suppliers in Direct Contact with the Prime Contractor
If you are a first-tier subcontractor or material supplier that is working on a non-residential project, you are required to submit a written notice to the property owner and to the general contractor. The notice must be handed no later than the 15th day of the third month after all or part of the labor or materials was furnished.
If, say, that you worked on a project in January, you are required to submit a notice to the owner and the general contractor no later than April 15th.
If you are working on a residential project, this deadline is reduced by a month. You will be required to submit the notice no later than the 15th day of the second month following the month in which you provided all or part of the labor or materials. So if you worked in January, the deadline for the notice is on March 15th.
For Subcontractors and Material Suppliers NOT in Direct Contact with the Prime Contractor
If you’re a subcontractor or a material supplier further down the contracting chain and are not in direct contract with the prime contractor, the pre-lien notice requirements are a bit different.
· You must submit a notice to the general contractor no later than the 15th day after the second month following each month in which you furnished labor or materials to the project.
· You must also submit another notice to the property owner AND the general contractor no later than the 15th day after the third month following each month in which you furnished labor or materials to the project.
So you essentially have to submit two notices, first to the general contractor, and second to the general contractor and the property owner. Keep in mind that these notice requirements apply for each month that you are working on the project, so it is in your best interest to stay on top of the deadlines for filing these notices.
Texas Monthly Pre-lien Notice Deadlines
Special Case: Homestead
If you are working on a homestead property, there are special rules in Texas with which you have to comply. To protect your lien rights when working on a homestead, you must have a written contract with the property owner that outlines the agreement.
The written contract must fulfill the following requirements, according to Sec. 53.254 of the Property Code:
· The contract must be executed before the material is furnished or the labor is performed.
· If the owner is married, the contract must be signed by both spouses.
· If the contract is made by an original contractor, the contract inures to the benefit of all persons who labor or furnish materials for the original contractor.
· The contract must be filed with the county clerk of the county in which the homestead is located. The county clerk shall record the contract in records kept for that purpose.
How do I file a mechanics lien?
Two Basic Steps in Filing a Mechanics Lien in Texas
1. Record an Affidavit of Lien
2. Serve the affidavit on the appropriate parties
1. Record the Affidavit of Lien
If you have filed all the necessary pre-lien notices and you still have not received your payment, it’s now time for you to record the mechanics lien, or more commonly known as the Affidavit of Lien in Texas.
Some of the important information that must be included in the Affidavit of Lien include:
- A sworn statement of the claim
- The amount of debt
- The name and address of the property owner
- A general declaration of the materials furnished or labor performed
The Affidavit of Lien must also be recorded in the county clerk office and it must clearly state the names of the claimant, the original contractor, and the property owner. Note that failure of the county clerk to record a filed affidavit WILL NOT invalidate a mechanics lien.
There are different deadlines for filing the Affidavit of Lien, depending on your role in the project and the type of project you are working on.
Deadline for Filing an Affidavit of Lien for Prime Contractors
Prime contractors are required to file the lien no later than the 15th day of the fourth month after the day when debts starts to accumulate. According to Sec. 53.053 of the Texas Property Code, debt to the prime contractor starts to accumulate on:
(1) the last day of the month in which a written declaration by the original contractor or the owner is received by the other party to the original contract stating that the original contract has been terminated; or
(2) the last day of the month in which the original contract has been completed, finally settled, or abandoned.
If you’re working on a residential project, the rules above also apply but the deadline is a little earlier: the lien must be filed no later than the 15th day of the third month after the day when the debt starts to accrue.
Deadline for Filing an Affidavit of Lien for Subcontractors and Material Suppliers
Subcontractors and material suppliers must file the lien no later than the 15th day of the fourth month after the last month in which labor or materials were furnished.
The deadline for residential projects is also shortened by a month, so the lien must be recorded no later than 15th day of the third month after debt accrues, which also corresponds to the last month in which labor or materials were furnished.
The same deadlines above also apply for claimants who have furnished specially fabricated materials to a project. The third and fourth calendar month is counted from the month when the debt starts to accumulate, which according to Sec 53.053 can be:
(1) on the last day of the last month in which materials were delivered;
(2) on the last day of the last month in which delivery of the last of the material would normally have been required on the job site; or
(3) on the last day of the month of any material breach or termination of the original contract by the owner or contractor or of the subcontract under which the specially fabricated material was furnished.
Deadlines for filing an Affidavit of Lien (TX Mechanics Lien)
|Third Calendar Month|
|Fourth Calendar Month|
|January||April 15||May 15|
|February||May 15||June 15|
|March||June 15||July 15|
|April||July 15||August 15|
|May||August 15||September 15|
|June||September 15||October 15|
|July||October 15||November 15|
|August||November 15||December 15|
|September||December 15||January 15|
|October||January 15||February 15|
|November||February 15||March 15|
|December||March 15||April 15|
2. Serve the lien on the appropriate parties
After the affidavit of lien has been filed, the claimant has to serve the affidavit and let the relevant parties know that a lien claim has been recorded.
Prime contractors must serve the affidavit on the property owner within five days after the lien has been filed. Subcontractors and material suppliers must serve the affidavit on the property owner AND the prime contractor also within five days after filing the lien.
The affidavit may be handed directly to the recipients but may also be sent via certified mail with return receipt.
Enforcing the mechanics lien in Texas
If after filing a mechanics lien, the client still hasn’t made arrangements to pay, the lien must be enforced. The reality is that most mechanics liens are resolved without having to enforce because clients choose to pay instead of facing the lawsuit that comes with the enforcement of the mechanics lien. The mechanics lien must be enforced within two years after filing the lien for non-residential projects, and a year for residential projects, or within a year after the completion of work named in the lien, whichever is later.
What are the common mistakes when filing a Texas mechanics lien?
1. Failing to hand the required pre-lien notices
If you are working on a construction project in Texas, especially if you’re a subcontractor or a material supplier, you have to remember to file the necessary pre-lien notices. Failing to submit them will automatically result in having your affidavit of lien declared invalid.
Pre-lien notices are also important as they can sometimes be enough to get you the payment you earned. Sometimes general contractors and property owners only need a nudge to get them to pay up, especially since dealing with mechanics liens may be even more stressful and time consuming for them.
2. Failing to properly sign a written contract when working on homestead properties
Homesteads in Texas require special attention for construction professionals. If you are working on a homestead project, make sure that you understand all the special rules that come with.
A written contract must be signed by you and the owner(s) BEFORE you furnish labor or materials to the project. And if the owner is married, the contract must be signed by BOTH SPOUSES. The contract must also be recorded in the county clerk office in which the property is located. Failing to follow these rules will invalidate your lien claim should payment issues arise.
3. Not meeting the deadline for filing the affidavit of lien
Deadlines for filing an affidavit of lien in Texas may be complicated, which makes it all the more important to keep track of them. Remember that the deadlines always fall on the 15th day of the third or fourth month for residential and non-residential projects, respectively.
You should file your affidavit of lien earlier than the deadline if you could — waiting at the last minute could pose more issues for you. Keeping track of all the paperwork, deadlines, and requirements may be daunting, but doing so is your best chance at getting the payment that you have duly earned.
4. Providing incorrect information in the Affidavit of Lien
In Texas, providing incorrect information in the affidavit can land you a Class A Misdemeanor.
In a recent update to Texas lien law, a person who “intentionally, knowingly, or recklessly” provides false information may be fined up to $4000 or a year in jail, or both.
Additionally, they also may be liable for any damage or loss that results from the incorrect information in the affidavit, whether the wrong information was provided intentionally or not.