The Original Contractor’s Basic Guide to Filing a Lien in Texas
By Stephen Venzor, Associate Attorney
Thanks to the Texas lien laws being written so poorly, one of the most frequently asked questions that we receive is, “What must I do to get a valid mechanic’s lien in Texas?” Luckily, once you are able to decipher the language of the statute, the underlying requirements are not that complex.
First, the type of contractual relationship you have with the property owner will determine what preliminary notices are required. If you are providing labor and/or materials under an agreement directly with the property owner, then you are considered an original contractor, which usually means you are a general contractor or a builder.
As the original contractor, you are not required to send any notices to the owner of the property prior to filing your lien. Instead, you can directly proceed with recording the lien affidavit by the deadline prescribed in the statute. It is this deadline that causes a great deal of confusion for original contractors, especially because the deadline changes depending on whether the project is residential or commercial.
For a residential construction project, you must file the lien affidavit no later than the 15th day of the 3rd month after the day the indebtedness accrues. Indebtedness accrues on the last day of the month when the original contract is (a) terminated, (b) completed, (c) finally settled, or (d) abandoned. If the project is a commercial construction project, then you must file the lien affidavit by the 15th day of the 4th month after the day the indebtedness accrues.
Let’s look to an example to clarify when indebtedness accrues and the corresponding deadline to file a lien affidavit: An original contractor working on a residential construction project finishes performing the work required under the contract on January 14, 2019. First, indebtedness is said to have accrued on January 31, 2019. Second, three months after January 31, 2019, is April 2019. And third, the fifteenth day in April is April 15, 2019. Therefore, the lien affidavit in this example is required to be filed no later than April 15, 2019.
The Texas Property Code lists several items of information that must be included in the lien affidavit. Additionally, the lien affidavit must be served upon the owner of the property, by certified mail, no later than the 5th day after the affidavit is filed with the county.
As a side note, aside from this specific procedure to assert a statutory lien, an original contractor might also have a constitutional lien.
Most of the time, filing the lien affidavit will be enough to entice the property owner to pay an original contractor for work already performed. However, if an original contractor still has not been paid, then it has the option of filing a lawsuit to foreclose on the lien. Again, the deadline for filing suit depends on whether the project is residential or commercial, so be sure to seek guidance from an attorney experienced in handling such matters.