Mechanics Lien
Houston Construction Law Attorney
Ensuring payment for a performed job is critical. A mechanics lien is a powerful tool available to those who perform work or supply labor for a living to ensure you are paid. If you have performed work/supplied materials and have not been paid, you are entitled to a lien on the property where the job took place in the amount that you are owed. However, making sure you are eligible for a mechanics lien is a tricky process.
The notice requirements in Texas for filing and perfecting a mechanic’s lien are notoriously complicated. Understanding whether you comply with the Texas Government Code, Texas Property Code, Texas Constitution, or a combination of the three, depends on your status as a contractor.
Chapter 53 of the Texas Property Code
Understanding Chapter 53 of the Texas Property Code is absolutely necessary because in order to protect your business, you will need to file for a mechanic’s lien. You are entitled to a claim! Chapter 53 of the Texas Property says the following persons qualify to make a claim:
- You labored or provided materials for construction or repair of a house, building, or improvement; and
- You labored or provided materials under a contract.
If you think this is broad, it is because that is true: It is broad. Chapter 53 of the Texas Property Code makes it clear: If you are involved in a construction project in any way and you are working under a contract, you are entitled to a lien. If you are hired as a subcontractor to put shingles on a roof, you are entitled to a lien; if you are hired to provide glass window panes for a skyscraper, you are entitled to a lien; if you are hired to construct a section of highway, your entitled to a lien. However, meeting the qualifications under Chapter 53 of the Texas Property Code does not mean you can automatically acquire a mechanic’s lien. It is important to consult an experienced Houston construction law attorney from Guerra | Days Law Group to understand all the nooks and crannies of Texas construction law.
Notice Requirements
Chapter 53 of the Texas Property Code lists the requirements are for perfecting a mechanic’s lien. However, the requirements depend on your status as a contractor. Under Texas law, only subcontractors and sub-subcontractors are burdened with strict notice requirements as a requisite for perfecting a mechanic’s lien claim. It is crucial you understand what type of claimant you are.
Texas law mandates a written notice be given to the owner and to the original contractor of a project for an unpaid claim by the fifteenth (15th) day of the third (3rd) calendar month following each month. Claims by subcontractors (or sub-subcontractors) can include any uncompensated labor or material delivered. Lastly, the notices must be sent via certified mail requesting a return receipt with fund-trap language included.
What is a Mechanics Lien?
The Notice Requirements in Texas for filing and perfecting a mechanic’s lien are notoriously complicated. Whether you need to be complying with notice statutes, the Texas Property Code, the Texas Constitution, or a combination of all them, depends on your status as a contractor. First, you need to evaluate whether you are entitled to a claim at all. §53.021 of the Texas Property Code spells it out for us. §53.021 states:
Persons Entitled to Lien:
- A person has a lien if:
- The person labors, specifically fabricates material, or furnishes labor or materials for construction or repair in this state of:
- A house, building, or improvement;
- A levee or embankment to be erected for the reclamation of overflow along a river or creek; or
- A railroad; AND
- The person labors specifically fabricates material, or furnishes the material or labor or materials under or by virtue of a contract with the owner or the owner’s agent, trustee, receiver, contractor, or subcontractor.
- A person who specifically fabricates material has a lien even if the material is not delivered.
*§53.021 continues with subsection (c), (d), and (e) however, for the purposes of this post we will focus on subsection (a) and (b).
The statute makes it clear that if you are involved in a construction project, in almost any capacity, AND you are operating under a contract, you are entitled to a lien. Therefore, if you are hired as a subcontractor to put shingles on a roof, your entitled to a lien; if you are hired to provide glass window panes for a skyscraper, your entitled to a lien; if you are hired to construct a section of highway, your entitled to a lien. Please note that the labor expended must have been used in the direct prosecution of the work. Tex. Prop. Code §53.001(3)
As stated above, what your requirements are for perfecting a lien depends on your status as a contractor. Under Texas law, only subcontractors and sub-subcontractors are burdened with strict notice requirements as a requisite for perfecting a mechanic’s lien claim. Therefore, its crucial you understand what type of claimant you’re going to be.
In Texas, there are three types of claimants:
- Original or prime contractor, who has a contract with the owner;
- Subcontractor, who has a contract with the original contract (“first-tier subcontractor”); and
- Sub-subcontractor, who does not have a contract with the original contract but has a contract with a subcontractor (“second-tier subcontractor”).
Texas requires that written notice must be given to the owner of a project of an unpaid claim, with a copy to the original contractor, by the fifteenth day of the third calendar month following each month in which labor was performed or material delivered, and which you, as a sub (or sub-sub), have not been paid. The notices must be sent with a certified mail return receipt requested and include fund trapping language.
Notice Requirements for Subcontractor
| For Work Performed in: | The 3rd Notice Must be Sent by: | Lien Affidavit Must be Filed by: |
|---|---|---|
| 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 |
Notice Requirements for Sub-Subcontractor
| For Work Performed in: | The 2nd Month Notice Must be Sent by: | The 3rd Month Notice Must be Sent by: | Lien Affidavit Must be Filed by: |
|---|---|---|---|
| January | March 15 | April 15 | May 15 |
| February | April 15 | May 15 | June 15 |
| March | May 15 | June 15 | July 15 |
| April | June 15 | July 15 | August 15 |
| May | July 15 | August 15 | September 15 |
| June | August 15 | September 15 | October 15 |
| July | September 15 | October 15 | November 15 |
| August | October 15 | November 15 | December 15 |
| September | November 15 | December 15 | January 15 |
| October | December 15 | January 15 | February 15 |
| November | January 15 | February 15 | March 15 |
| December | February 15 | March 15 | April 15 |
Filing a mechanic’s lien in Texas requires the ability to confidently navigate the myriad requirements of Chapter 53 of the Texas Property Code. If unsure about your qualification or you want to know how to file a mechanic’s lien, contact a qualified Houston construction law attorney at Guerra | Days Law Group. Ensure your compensated for your labor and materials you have worked so hard to provide.