The mechanic’s and materialman’s lien statute in the Texas Property Code (Chapter 53) serves the dual purpose of requiring a property owner to take reasonable steps to ensure that his contractors are paying their subcontractors and affording subcontractors – who often do not have a contract with the owner – protection for the work that they perform. The mechanic’s lien statute is a powerful tool, but it contains strict deadlines and requirements that must be followed; otherwise, a subcontractor can be deprived of protection. Below is a summary of the requisites for filing a mechanic’s lien in Texas.
First, it is worth identifying who is covered by the statute. The statute is broadly worded to apply to, among other things, any person who labors, specially fabricates material, or furnishes labor or materials for construction or repair in the state of a house, building, or improvement. TEX. PROP. CODE § 53.021(a).
The deadline for a claimant to file a mechanic’s lien affidavit in the State of Texas is the fifteenth (15th) day of the fourth (4th) calendar month following the day the claimant’s indebtedness “accrues.” TEX. PROP. CODE § 53.052(a). The mechanic’s lien affidavit must be filed with the county clerk of the county in which the real property is located. TEX. PROP. CODE § 53.052(a).
The lien affidavit must be signed by the person claiming the lien or by another person on the claimant’s behalf and must contain substantially: (1) a sworn statement of the amount of the claim; (2) the name and last known address of the owner or reputed owner; (3) a general statement of the kind of work done and materials furnished by the claimant and, for a claimant other than an original contractor (i.e. a subcontractor), a statement of each month in which the work was done and materials furnished for which payment is requested; (4) the name and last known address of the person by whom the claimant was employed or to whom the claimant furnished the materials or labor; (5) the name and last known address of the original contractor; (6) a description, legally sufficient for identification, of the property sought to be charged with the lien; (7) the claimant’s name, mailing address, and, if different, physical address; and (8) for a claimant other than an original contractor (i.e. a subcontractor), a statement identifying the date each notice of the claim was sent to the owner and the method by which the notice was sent. TEX. PROP. CODE § 53.054(a).
The claimant must send a copy of the mechanic’s lien affidavit by registered or certified mail to the owner, at the owner’s last known business or residence address, not later than the fifth (5th) day after the date the lien affidavit is filed with the county clerk. TEX. PROP. CODE § 53.055(a). If the claimant is not an original contractor (i.e. a subcontractor), the claimant must also send a copy of the mechanic’s lien affidavit to the original contractor at its last known business or residence address, within the same time period. TEX. PROP. CODE § 53.055(b).
The “accrual” date varies depending on whether the claimant is an original contractor or a subcontractor. The debt to an original contractor accrues either on the last day of the month in which a written declaration by the original contractor or the owner is received by the other party stating that the contract has been terminated, or on the last day of the month in which the original contract has been completed, finally settled, or abandoned. TEX. PROP. CODE § 53.053(b). Indebtedness to a subcontractor accrues on the last day of the last month in which the labor was performed or the material furnished. TEX. PROP. CODE § 53.053(c).
Prior to filing the lien affidavit, a derivative claimant (i.e. a subcontractor) must also send timely notice of its unpaid claim to the original contractor not later than the fifteenth (15th) day of the second (2nd) month following each month in which all or part of the claimant’s labor was performed or its material delivered. TEX. PROP. CODE § 53.056(b). In addition, the derivative claimant must also send timely notice of its unpaid claim to both the original contractor and the owner of the property not later than the fifteenth (15th) day of the third (3rd) month following each month in which all or part of the labor was performed or material delivered. TEX. PROP. CODE § 53.056(b). The notices must be sent by registered or certified mail and must be addressed to the owner or reputed owner or the original contractor, as applicable, at his last known business or residence address. TEX. PROP. CODE § 53.056(e).
If a claimant has properly filed his claim, he then has two years (one for a residential construction project) to file suit to foreclose his lien. TEX. PROP. CODE § 53.158.
So what can a property owner do if a claimant unlawfully files a mechanic’s lien on his property? The property owner is not without recourse; he has the option of filing a summary motion to remove the invalid or unenforceable lien, which the courts are supposed to determine promptly. TEX. PROP. CODE § 53.160. And, if the property owner is successful, he can seek to recover his attorney’s fees from the claimant who filed the invalid or unenforceable lien. TEX. PROP. CODE § 53.156.
© Eric C. Wood, 2016
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