When you provide labor or furnish materials for a construction project, you expect to get paid for your work or goods. Unfortunately, subcontractors, suppliers, design professionals, and others aren’t always paid on time. In some cases, they don’t get paid at all unless they take steps to secure payment.
A mechanics lien is an incredibly powerful tool that contractors, subcontractors and suppliers in Texas can use to make sure that they get paid. However, there are specific rules that must be followed in order to record a valid lien. If you follow the right process, send out the right notices and timely record an affidavit you will be able to enforce your lien in the event of slow payment or nonpayment.
At Forbes & Forbes, we work hard to help our clients understand the often confusing mechanics lien laws in Texas. We’ll collaborate with you to ensure that your mechanics’ liens are filed, recorded, and served properly so that you can get paid. Read on to learn more about mechanics liens in Texas.
All About Texas Mechanics Liens
A mechanic’s lien is a legal document that reserves a contractor, subcontractor, or supplier’s right to seek compensation if they are not paid for the work or materials that they provided on a construction project. These liens are typically filed by contractors, subcontractors, design professionals, and/or suppliers against the property on which they worked. A mechanic’s lien creates a cloud on title, which means that the property owner will have difficulty financing or selling the land until they pay the money owed to clear the title.
Every state has its own version of mechanics lien laws. In Texas, the laws surrounding mechanics liens are complex and can be difficult to understand. However, with a bit of explanation, contractors, subcontractors, and suppliers can take the necessary steps to obtain a security interest in a property.
In Texas, a mechanics lien can be filed by the original (general) contractor, subcontractors, material suppliers, specialty material fabricators, design professionals, and landscapers who do not receive payment for their work or materials on a construction project. A mechanic’s lien can be filed on any privately-owned property, although there are slightly different rules for filing a mechanics lien against a homestead. Unpaid parties cannot file a mechanics lien against public property in Texas.
There is a specific process for filing a mechanics lien in Texas, described below. Before you can file a lien, however, you must comply with preliminary notice requirements. For subcontractors, suppliers, and others, a preliminary notice must be sent to the owner and the prime contractor:
- For residential projects, by the 15th day of the second month following the month that the work was performed and unpaid; notice must be sent for each month that work was performed and unpaid.
- For non-residential projects, by the 15th day of the third month following the month that the work was performed and unpaid.
Contractors, subcontractors, and suppliers should be sure to keep copies of the notices that they have sent. Under Texas mechanics’ lien laws, proof of notice is required to file a mechanic’s lien against the property owner.
If you are still not paid after sending these preliminary notices, then you can file a mechanic’s lien against the property owner. The deadline to file a Texas mechanic lien varies based on the type of project involved. A lien must be filed by no later than:
- The 15th day of the third month after the month in which the claimant last provided labor or materials for residential projects; or
- The 15th day of the fourth month after the month in which the claimant last provided labor or materials for non-residential projects.
Once a lien has been properly and timely filed and served, it can be enforced. The deadline to enforce a lien is 1 year for all construction contracts entered into on or after 1/1/22. In most cases, filing a lien or sending a notice of intent to enforce the lien is enough to secure payment.
How to File for a Mechanics Lien in Texas
There are three basic steps required to file a mechanic’s lien in Texas. The first step involves filling out an “Affidavit of Lien” form. While each county may have slightly different requirements for an affidavit of lien, they will generally require the following information:
- A sworn statement of the amount of the claim;
- The name and last known address of the owner of the property;
- A general statement of the kind of work done or materials furnished by the claimant and, for a claimant other than an original contractor, a statement of each month in which the work was done or materials were furnished for which payment is requested;
- The name and last known address of the person who employed or contracted with the claimant;
- The name and last known address of the general contractor;
- A description of the property sought to be charged with the lien;
- The claimant’s name and address; and
- For a claimant other than a general contractor, a statement identifying the date each notice of the claim was sent to the owner and the method by which the notice was sent.
An affidavit of lien must be “verified.” This means that the lien must be signed in the presence of a notary either by the person claiming the lien or another person authorized to act on their behalf.
Because claimants must provide detailed information in order to secure a lien, it is important to keep careful records as a contractor, subcontractor, and/or supplier. These records should include the type of work performed, the number of people who worked on the project, their names, what each person did on the project, and when they performed the work. Remember: you will need to verify your affidavit of lien, so your records should be as thorough as possible.
While not required, you can and should include documentation of your lien with your affidavit of lien. This may include a copy of your written contract, any invoices or work orders for the project, and/or copies of notices that you sent to the owner or general contractor.
The second step is relatively simple: recording the lien with the Texas county clerk in the county where the property is located. To do so, you will need to bring the Affidavit of Lien to the county recorder’s office in the county where the property is located..
The third and final step in the process is to provide a copy of the affidavit, as filed, —- to the property owner and general contractor within 5 days of filing the lien. You can even send a copy of the unrecorded lien to ensure that the notice is served on time.
As you can see, the process of filing for a mechanic’s lien in Texas is pretty easy. The most difficult part is making sure you get all of the necessary information in your notices and filling out an affidavit of lien – but you should have all of the necessary information if you have been diligent about sending the required notices. Just make sure that the lien is properly filed and served on the property owner and GC so that you secure your interest in the property.
What Happens After You File a Texas Mechanic’s Lien?
In most cases, filing a lien is enough to secure payment from a property owner. After all, no one wants a cloud on their title – so they are usually eager to pay contractors and suppliers to get the lien cleared.
However, there may be situations where a lienholder will have to foreclose or enforce their lien. In Texas, you have 1 year to foreclose upon a mechanic’s lien. The deadline to enforce a lien is the later of 1 year from the day of the last project or 1 year from the completion of the work.
Although it is different from suing for breach of contract, foreclosing a lien claim is a legal process that can be expensive and time-consuming. A Texas mechanics lien lawyer can explain the process and whether it makes sense to enforce a lien. In many cases, sending a notice of intent to foreclose is sufficient to get the property owner to pay.
Once the outstanding amount has been paid, the next and final step is to release the lien claim. Generally, if you hold a Texas mechanics lien, you are required to release the lien if you receive payment for the claim and a release is requested.
How Our Law Firm Can Help
Texas’ mechanic lien laws can be confusing. If you are working on a construction project, it is vital that you understand exactly what you need to do to secure payment through a mechanic’s lien. Our law office can work with you to ensure that your rights are protected.
Based in El Paso, Forbes & Forbes have decades of combined experience in Texas construction law. We offer a range of services to contractors, subcontractors, and suppliers, including assistance with filing and enforcing mechanics liens. To learn more, give us a call at 877-585-3827 or fill out our online contact form.
What Can Be Claimed in the Lien Amount?
When filing an affidavit of lien, you will need to provide the lien amount. This may seem straightforward, but there are some things to consider when filling out this part of the affidavit. You can include amounts that are unpaid for the work that you performed or materials that you provided. You can also include amounts that may be in dispute.
However, you cannot include interest, the cost of filing the lien, liquidated damages, or attorneys’ fees. If you decide to enforce the mechanics’ lien, you may be able to collect these items – but they cannot be included in the initial lien amount. Reach out to Forbes & Forbes to talk to a Texas mechanics lien attorney about filing an affidavit of lien.
Is a Lien the Same As a Bond Claim?
No. Texas bonds claim laws protect parties furnishing labor and/or materials on a public project. Because these lands are publicly-owned, a contractor, subcontractor, or supplier cannot file a mechanic’s lien against the property. Instead, there is a separate process through which an unpaid party can seek payment through a bond claim.
Bond claims are distinct from mechanic’s liens in a number of ways. A skilled Texas construction lawyer can help you determine your rights and assist you with the process of filing a bond claim. Contact Forbes & Forbes today to schedule a consultation with a member of our team.
Do I Need a Written Contract to File a Mechanics Lien in Texas?
It depends. For most projects, contractors do not need a contract to file a Texas mechanics lien. However, contractors do need a written contract to file a mechanics lien against a residential homestead property. In addition, architects, engineers, surveyors, and landscapers must have a written contract to file a mechanics lien.
If you have questions about your rights when it comes to mechanics lien in Texas, an experienced construction attorney can help. Contact Forbes & Forbes today to schedule a consultation with a member of our team.