Requirements for Filing a Mechanic's Lien in Texas

In Texas, a vendor that completes construction work for a property owner or a party working directly with the property owner, and that hasn’t been paid, can file a mechanic's lien.

General contractors, subcontractors, and others who supply labor or materials on a project can secure payment from a property owner via this legal document. The process for filing a mechanic's lien is slightly different for Texas homestead properties.

A general contractor, subcontractor, supplier or other vendor that provides labor or materials for the construction or improvement of real property files a mechanic’s lien against that property to secure payment from the property's owner for work they’ve done. The lien allows the vendor to recover payment of money owed.

Texas does not have specific licensing requirements that subcontractors or suppliers need for securing lien rights. However, to be eligible for lien protection, design professionals, such as architects, engineers and surveyors must have a license in order to file a lien claim.

To qualify for lien claim eligibility, Texas lien laws require a vendor to send an invoice before the 15th day of the second month after the completion of their work. They must next send out a pre-lien notice letter.

This is required of those who do not have direct contract with the property owner, such as subcontractors, materials suppliers and anyone without a direct contract with the property owner. The claimant must confirm that the lien notice was sent and how it was sent, for example, by certified mail.

Claimants must send the notice letter one month before filing a pre-lien affidavit. If the notice and the invoice do not lead to payment, they can then file a mechanic’s lien. Texas does not require those who work directly with the property owner to send pre-lien notice letter before a lien filing.

Original contracts do not have to be in writing; however, there are exceptions, particularly for lead contractors on homestead properties. But design professionals like surveyors, architects and engineers must have written contracts.

The deadline for filing a mechanic's lien in Texas depends on a few factors, including the project type and what the claimant’s role was. For original contracts that started on or after January 1, 2022:

• ‌Commercial projects:‌ Lien filing must occur no later than the 15th day of the 4th month after the month when the original contract was abandoned, completed or terminated. All other claimants must file no later than the 15th day of the 4th month after the month they last supplied the project with materials or labor, or no later than 15th day of the 4th month after the month the claimant would have delivered the final specially fabricated materials if delivery did not take place.

• ‌Residential projects:‌ Lien filing must take place no later than the 15th day of the 3rd month after the month when the original contract was abandoned, completed or terminated. All other claimants must file no later than the 15th day of the 3rd month after the month they last supplied the project with materials or labor, or no later than 15th day of the 3rd month after the month the claimant would have delivered the final specially fabricated materials if delivery did not take place.

These rules also apply for original contracts entered into before January 1, 2022, however, if the filing deadline falls on a federal holiday or weekend, it changes to the previous business day.

In Texas, the deadline for a claimant to enforce a mechanic's lien depends on the project type. For commercial projects, they must enforce the lien within two years after the last date in which they could file, or one year after the project termination, completion or abandonment, whichever is later.

For residential projects, they must enforce the lien within one year after the last date in which they could file, or one year after the project termination, completion or abandonment of the project, whichever is later.

A Texas affidavit of lien must contain:

• Sworn statement by claimant as to amount of claim.
• Name and mailing address of property owner.
• Name and mailing address of claimant.
• Short description of labor or materials provided.
• Name and mailing address of hiring party.
• Name and mailing address of general contractor.
• Description of property.
• Signature of claimant or other individual filing on claimant’s behalf.

If the claimant is other than a direct contractor, they must also include a statement for each month they request payment with details of the work they've done and the materials they furnished. They must also provide a statement with the dates on which they sent each notice of the claim to the property owner, including information on how the notices were sent.

In Texas, mechanic’s liens do not need to be notarized. Claimants cannot include any fees unrelated to labor and/or materials, such as attorney fees or collection costs. The court can still award these fees to a lien claimant.

The claimant files the mechanic's lien with the Texas county clerk in the county of the property's location. They provide a copy of the filed affidavit to the property owner or general contractor within five days of filing.

In most cases, filing a lien is enough to secure payment from the party who owes the claimant money. They are usually eager to pay to get the lien cleared, as they don’t want a possible mark on their credit.

Once the outstanding amount has been paid, the last step on behalf of the claimant is to release the lien claim. When the property owner pays the amount of the lien, the claimant must release the lien by the 10th day after the date they received a written request to release it.

Any person paying the lien claimant can request the lien's release. However, a lien release will not prevent future lien filings.

Because mechanic's liens can force homeowners to have to sell their primary residence, Texas law has different requirements for lien claims against homestead properties.

General contractors working on homestead projects in Texas carry the responsibility to ensure rights for project participants, such as subcontractors and suppliers, and for workers in the event they aren't paid. To acquire lien rights, the prime contract (meaning the contract made directly with the property owner) must be in writing and:

• Executed before any materials or labor were provided on the project.
• Contain the signatures of each spouse if the property owner is married.
• Filed in the county clerk’s office in the property’s location.

The contractor must provide the homeowner with a Residential Disclosure Statement, a document that outlines the property owner’s rights during a construction project. It can be provided to the homeowner before they sign the contract or even be included in the contract.

The contractor also must provide a list of subcontractors and suppliers, with their names, addresses and contact information. If the contractor adds a new party to the project, they must give the property owner an updated list containing the additional names within 15 days.

The list should also have the notice language that Texas law requires. This language must be stamped, printed or typed in a size equal to or greater than 10-point boldface font. It should read:

‌"NOTICE: This list of subcontractors and suppliers may not be a final listing. Unless you sign a waiver of your right to receive updated information, the contractor is required by law to supply updated information, as the information becomes available, for each subcontractor or supplier used in the work performed on your residence."‌

If the contractor does not provide the homeowner with the Residential Disclosure Statement or the list of intended suppliers or subcontractors, they still have lien rights, but may face civil penalties.

Suppliers and subcontractors who have not received payment must send a notice every month to the homeowner by the 15th day of the 3rd month following the last day of every month in which they provided a project with materials or labor on the project, if the project began after January 1, 2022. Language in the monthly notices should read:

“If a subcontractor or supplier who furnishes materials or performs labor for construction of improvements on your property is not paid, your property may be subject to a lien for the unpaid amount if :

• After receiving notice of the unpaid claim from the claimant, you fail to withhold payment to your contractor that is sufficient to cover the unpaid claim until the dispute is resolved, or
  
• During construction and for 30 days after completion of your contractor’s work, you fail to reserve 10 percent of the contract price or 10 percent of the value of the work performed by your contractor.

If you have complied with the law regarding the reservation of 10 percent of the contract price or value of work and you have withheld payment to the contractor sufficient to cover any written notice of claim and have paid that amount, if any, to the claimant, any lien claim filed on your property by a subcontractor or supplier, other than a person who contracted directly with you, will not be a valid lien on your property. In addition, except for the required 10 percent reservation, you are not liable to a subcontractor or supplier for any amount paid to your contractor before you received written notice of the claim.”

Finally, the Affidavit of Lien must include this sentence in bold, 10-point font at the top of the page.:

“‌NOTICE: THIS IS NOT A LIEN. THIS IS ONLY AN AFFIDAVIT CLAIMING A LIEN‌”