How to File a Mechanics Lien in Texas

On June 15, 2021, Gov. Greg Abbott signed into law House Bill 2237, introducing major changes to Chapter 53 of the Texas Property Code ¹. These changes, which took effect on January 1, 2022, reflect new rules and regulations surrounding the filing of a Texas mechanics lien and all steps that come with it, including notice requirements and deadlines.

Filing a mechanics lien in Texas may initially seem intimidating. The rules change depending on what role you play in a construction project, and there are also specific regulations that you may not encounter when working in other states.

The mechanics lien is the most powerful tool you have in ensuring payments. Securing your lien rights mean you have a claim on the property in case payment issues arise. Without your lien rights, it’s possible to lose your money without any legal repercussions on the client that failed to pay. With the mechanics lien, you are in the best position to recoup on what you put in a construction project.

To secure your lien rights in TX, sending preliminary notices–also called pre-liens, notice of intent to lien, and monthly preliminary notices–is crucial. Read our article on how to file a preliminary notices in Texas to get more information on the steps you need to take to ensure you don’t lose your right to file a mechanics lien in Texas.

Whether you’re a contractor, a subcontractor, or a material supplier, this guide should help you understand everything you need to know about filing a mechanics lien in Texas.

Who can file a mechanics lien in Texas?

Wondering if you’re eligible to file a Texas mechanics lien? If you’re one of the following, you have the right to secure payments via your lien rights.

Mechanics liens in Texas secure payment for construction participants who have:

• furnished labor or materials to a construction project or repair;
• fabricated special materials for a project, even if the materials have not been delivered or incorporated into the project yet; and
• prepared a plan for the project as an engineer, architect, or surveyor.
• design professionals such as engineers and architects now have lien rights regardless of who they contract with.²

The qualifications mentioned above may seem too broad, and that’s because they are. The statutory rules on which parties are entitled to file a mechanics lien are fairly general, and there are also a few key things that you must note:

Do landscapers have the right to file a mechanics lien in Texas?

Yes, they do. According to Sec. 53.021(d) of the Texas Property Code, a person who provides labor, material, or other supplies “for the installation of landscaping for a house, building, or improvement” are entitled to a lien.

Do parties who perform demolition services have a right to file a mechanics lien?

Yes, as stated in Sec. 53.021(e) of the Property Code. Parties who furnish labor or materials for the demolition or a real property may file a mechanics lien.

Do all architects, engineers, and surveyors automatically have lien rights?

Yes. Before, design professionals such as architects and engineers only have lien rights if they have a direct contract with the property owner. However, effective January 1, 2022, design professionals have lien rights regardless of who they enter a contract with.³

Submitting pre-lien notices

Pre-lien notices are very important in securing your right to file a mechanics lien. Failing to file the required notices will render your mechanics lien null and void. Sometimes pre-lien notices can also help you get paid without having to go through the mechanics lien process. Property owners and general contractors in large-scale projects may lose track of which parties still need payment, and sending them a notice can catch their attention and get them to pay you right away.

It is highly recommended that you pay keen attention to the deadlines and requirements that are related not just to the actual mechanics, but most especially to the notices that you have to serve before you file a lien claim. It is worth noting that deadlines that fall on a weekend or a legal holiday are now automatically extended to include the next day that is not a weekend or a legal holiday. Of course, it is still best practice to fulfill the deadlines sooner than the deadline.

For prime contractors

Prime contractors are not required to submit pre-lien notices in Texas, but it’s still a good idea to do so.

Previously, fabricators of special materials have to serve a notice on the property owner by the 15th day of the second month after supplying the materials. But starting 2022, they also no longer have to serve the second month notice.⁴

For subcontractors and material suppliers in direct contact with the prime contractor

If you are a first-tier subcontractor or material supplier that is working on a non-residential project, you are required to submit a written notice to the property owner and to the general contractor. The notice must be handed no later than the 15th day of the third month after all or part of the labor or materials was furnished.

If, say, that you worked on a project in January, you are required to submit a notice to the owner and the general contractor no later than April 15th.

If you are working on a residential project, this deadline is reduced by a month. You will be required to submit the notice no later than the 15th day of the second month following the month in which you provided all or part of the labor or materials. So if you worked in January, the deadline for the notice is on March 15th.

For subcontractors and material suppliers NOT in direct contact with the prime contractor

If you’re a subcontractor or a material supplier further down the contracting chain and are not in direct contract with the prime contractor, the pre-lien notice requirements are a bit different.

·   Beginning 2022, you are no longer required to serve the prime contractor a notice on the 15th day of the second month after furnishing labor or materials. ⁵. However, it is still best practice to serve such a notice.

·   You must submit a notice to the property owner AND the general contractor no later than the 15th day after the third month following each month in which you furnished labor or materials to the project.

So essentially, you only have to submit the third month notice but submitting a second monthly notice is still the prudent thing to do to ensure and encourage timely payments. Keep in mind that it is in your best interest to stay on top of the deadlines for filing notices.

Texas monthly pre-lien notice deadlines

Special case: homestead

If you are working on a homestead property, there are special rules in Texas with which you have to comply. To protect your lien rights when working on a homestead, you must have a written contract with the property owner that outlines the agreement.

The written contract must fulfill the following requirements, according to Sec. 53.254 of the Property Code:

·   The contract must be executed before the material is furnished or the labor is performed.

·   If the owner is married, the contract must be signed by both spouses.

·   If the contract is made by an original contractor, the contract inures to the benefit of all persons who labor or furnish materials for the original contractor.

·   The contract must be filed with the county clerk of the county in which the homestead is located.  The county clerk shall record the contract in records kept for that purpose.

Can you file a mechanics lien without a preliminary notice in Texas?

Generally speaking, most construction participants are not allowed to file a Texas mechanics lien unless they serve the monthly preliminary notices on time. Subcontractors and material suppliers must serve these monthly notices in order to preserve their lien rights.

General contractors are exempted from the preliminary notice requirement, which means that they are generally allowed to file a mechanics lien without first serving a preliminary notice.

However, keep in mind that general contractors working on residential projects must serve the property owner with a disclosure statement and a list of subcontractors and suppliers. Unless this requirement is waived by the property owner, general contractors for residential projects must fulfill this requirement prior to filing a valid mechanics lien.

How do I file a mechanics lien?

Two Basic Steps in Filing a Mechanics Lien in Texas

1. Record an Affidavit of Lien

2. Serve the affidavit on the appropriate parties

1. Record the Affidavit of Lien

If you have filed all the necessary pre-lien notices and you still have not received your payment, it’s now time for you to record the mechanics lien, or more commonly known as the Affidavit of Lien in Texas.

What must be included in my Texas Affidavit of Lien?

Some of the important information that must be included in the Affidavit of Lien include:

• A sworn statement of the claim
• The name and address of the claimant (you)
• The amount of debt
• The name and address of the property owner
• The name and address of the general contractor and/or the party who hired you
• A general declaration of the materials furnished or labor performed
• A description of the location of the property to be charged with lien

Note that when calculating the amount that you plan to claim on a mechanics lien, you must NOT include miscellaneous amounts such as lien filing costs, attorney fees, accrued interests, and other values that are not directly related to the price of your services. However, you may be able to recover these amounts if you end up winning a foreclosure lawsuit in case you decide to enforce your mechanics lien.

Also note that when writing the property description, you must ensure that such a description is sufficient to identify the property location. A basic description would be a property street address with a lot and block number, although it is still best practice to include a complete legal property description to avoid potential confusion.

Are there any additional documents that I should attach to my Affidavit of Lien?

Yes. Texas requires you to include a list of the pre-lien notices that you served on the job, if applicable. Most parties other than the general contractor are required to serve preliminary notices, so you must keep track of these notices if you want to record a valid mechanics lien.

The list of the pre-lien notices must include the date when the notices were sent as well as the methods by which the notices were served.

Furthermore, you may also attach a copy of the contract that you executed with the owner or the hiring party. While this attachment is not required, it will help boost your mechanics lien claim and prove that your lien is grounded on a written agreement with the hiring party.

In addition, you may also include copies of the invoices related to the unpaid amount. Doing so will also strengthen your mechanics lien claim. Remember that when filing a mechanics lien, it is better to provide more context to your claim than to include too little information.

Note that when adding attachments or “exhibits” to your Affidavit of Lien, it is very important to keep them organized. Be sure to label them accordingly in letters (e.g. “Exhibit A – Contract”).

Because filing a mechanics lien is priced per page, adding lots of attachments may increase your filing fees. You can format your attachments so one sheet of paper includes multiple pages of a contract, for example. Before you do this, call the county clerk’s office ahead to ask if they will accept a multi-page format for your attachments.

Are there any formatting requirements for preparing the Affidavit of Lien?

The formatting requirements for a Texas mechanics lien depend on each county. Some counties require a 1” margin at the top for the first page with a 4” margin for the bottom of the last page, while other counties require a 2” margin at the top of the first page with 0.5” margins on all other sides.

It is always best practice to call and conduct your research on the specific requirements of the county where the property is located. Counties often reject mechanics liens simply for not following the appropriate formatting requirements.

The Affidavit of Lien must also be recorded in the county clerk office and it must clearly state the names of the claimant, the original contractor, and the property owner. Note that failure of the county clerk to record a filed affidavit WILL NOT invalidate a mechanics lien.

There are different deadlines for filing the Affidavit of Lien, depending on your role in the project and the type of project you are working on.

Deadline for filing an Affidavit of Lien for prime contractors

Non-residential projects:

Prime contractors are required to file the lien no later than the 15th day of the fourth month after the day when debts starts to accumulate. According to Sec. 53.053 of the Texas Property Code, debt to the prime contractor starts to accumulate on:

(1)  the last day of the month in which a written declaration by the original contractor or the owner is received by the other party to the original contract stating that the original contract has been terminated;  or

(2)  the last day of the month in which the original contract has been completed, finally settled, or abandoned.

Residential projects:

If you’re working on a residential project, the rules above also apply but the deadline is a little earlier: the lien must be filed no later than the 15th day of the third month after the day when the debt starts to accrue.

Deadline for filing an Affidavit of Lien for subcontractors and material suppliers

Subcontractors and material suppliers must file the lien no later than the 15th day of the fourth month after the last month in which labor or materials were furnished.

The deadline for residential projects is also shortened by a month, so the lien must be recorded no later than the 15th day of the third month after debt accrues, which also corresponds to the last month in which labor or materials were furnished.

The same deadlines above also apply for claimants who have furnished specially fabricated materials to a project. The third and fourth calendar month is counted from the month when the debt starts to accumulate, which according to Sec 53.053 can be:

(1)  on the last day of the last month in which materials were delivered;

(2)  on the last day of the last month in which delivery of the last of the material would normally have been required on the job site;  or

(3)  on the last day of the month of any material breach or termination of the original contract by the owner or contractor or of the subcontract under which the specially fabricated material was furnished.

Deadlines for filing an Affidavit of Lien (TX Mechanics Lien)

How much does it cost to file a mechanics lien in Texas?

Generally, filing a mechanics lien in Texas costs $26.00 for the first page and an additional $4.00 for every additional page. There are also additional costs related to certifying additional copies of the mechanics lien, which can be as low as $5.00 plus $1.00 for extra pages.

Note, however, that the mechanics lien filing costs in Texas vary per county. To know how much exactly you need to pay for recording your mechanics lien, it is best practice to call the office of the recording clerk in the county where the property is located.

Be aware that you must record your Texas mechanics lien with the recording clerk of the country where the project is located, and not where your business is based. This is very important to note since most lien claimants make the mistake of recording their mechanics lien in the wrong county clerk’s office.

2. Serve the lien on the appropriate parties

After the affidavit of lien has been filed, the claimant has to serve the affidavit and let the relevant parties know that a lien claim has been recorded.

Prime contractors must serve the affidavit on the property owner within five days after the lien has been filed. Subcontractors and material suppliers must serve the affidavit on the property owner AND the prime contractor also within five days after filing the lien.

The affidavit may be handed directly to the recipients but may also be sent via certified mail with return receipt.

Enforcing the mechanics lien in Texas

If after filing a mechanics lien, the client still hasn’t made arrangements to pay, the lien must be enforced. The reality is that most mechanics liens are resolved without having to enforce because clients choose to pay instead of facing the lawsuit that comes with the enforcement of the mechanics lien. All mechanics liens, regardless of project type, will expire after 1 year following the last day for when a lien could be filed. The claimant and the owner may reach an agreement for an extension and file such an agreement in the county clerk’s office.

What are the common mistakes when filing a Texas mechanics lien?

1. Failing to hand the required pre-lien notices

If you are working on a construction project in Texas, especially if you’re a subcontractor or a material supplier, you have to remember to file the necessary pre-lien notices. Failing to submit them will automatically result in having your affidavit of lien declared invalid.

Pre-lien notices are also important as they can sometimes be enough to get you the payment you earned. Sometimes general contractors and property owners only need a nudge to get them to pay up, especially since dealing with mechanics liens may be even more stressful and time consuming for them.

2. Failing to properly sign a written contract when working on homestead properties

Homesteads in Texas require special attention for construction professionals. If you are working on a homestead project, make sure that you understand all the special rules that come with.

A written contract must be signed by you and the owner(s) BEFORE you furnish labor or materials to the project. And if the owner is married, the contract must be signed by BOTH SPOUSES. The contract must also be recorded in the county clerk office in which the property is located. Failing to follow these rules will invalidate your lien claim should payment issues arise.

3. Not meeting the deadline for filing the affidavit of lien

Deadlines for filing an affidavit of lien in Texas may be complicated, which makes it all the more important to keep track of them. Remember that the deadlines always fall on the 15th day of the third or fourth month for residential and non-residential projects, respectively.

You should file your affidavit of lien earlier than the deadline if you could — waiting at the last minute could pose more issues for you. Keeping track of all the paperwork, deadlines, and requirements may be daunting, but doing so is your best chance at getting the payment that you have duly earned.

4. Providing incorrect information in the Affidavit of Lien

In Texas, providing incorrect information in the affidavit can land you a Class A Misdemeanor.

In a recent update to Texas lien law, a person who “intentionally, knowingly, or recklessly” provides false information may be fined up to $4000 or a year in jail, or both.

Additionally, they also may be liable for any damage or loss that results from the incorrect information in the affidavit, whether the wrong information was provided intentionally or not.

 Further reading

• Why Are Payment Issues Persistent in the Construction Industry?
• Are Late Payment Penalties a Good Idea in Construction?
• Mechanics Liens for Materials Suppliers: 8 Things to Keep in Mind

1. Property code Chapter 53. Mechanic’s, contractor’s, or materialman’s lien. (n.d.). Texas Constitution and Statutes. https://statutes.capitol.texas.gov/Docs/PR/htm/PR.53.htm
2. Property code Chapter 53. Mechanic’s, contractor’s, or materialman’s lien. (n.d.). Texas Constitution and Statutes. https://statutes.capitol.texas.gov/Docs/PR/htm/PR.53.htm
3. Property code Chapter 53. Mechanic’s, contractor’s, or materialman’s lien. (n.d.). Texas Constitution and Statutes. https://statutes.capitol.texas.gov/Docs/PR/htm/PR.53.htm
4. Property code Chapter 53. Mechanic’s, contractor’s, or materialman’s lien. (n.d.). Texas Constitution and Statutes. https://statutes.capitol.texas.gov/Docs/PR/htm/PR.53.htm
5. Property code Chapter 53. Mechanic’s, contractor’s, or materialman’s lien. (n.d.). Texas Constitution and Statutes. https://statutes.capitol.texas.gov/Docs/PR/htm/PR.53.htm