Certain construction documents may need to be notarized, depending on the type of document and the state where the project is located. As far as lien waivers, the vast majority of states don’t require notarization. However, Texas is one of those states that require notarized lien waivers.
Introduction to notarization
Notarization of a signature is a way to guarantee certain aspects of the document in question. The notary public’s stamp means they have verified the identity of the signor, acknowledge that they understand what the document means, and provides a way to validate the document in case things go awry. For the most part, documents that need to be filed with the court or recorder’s office, such as affidavits, wills, and power of attorney, are typical documents that require notarization.
Do Texas lien waivers require notarization?
The answer is yes. Undoubtedly, unequivocally and unabashedly, YES. There are only 3 states that require claimants to notarize lien waivers, and the Lone Star State is one of them. According to Texas Property Code §53.281(b)(2), “a waiver and release is effective… only if; the waiver and release is signed by the claimant or the claimant’s authorized agent and notarized.
This requirement was instituted in 2013 when Texas decided to revamp its lien waiver statutes completely. This was in direct response to a Texas 14th Division Court of Appeals decision that overturned a $20M judgment in favor of Zachry Construction. This case was focused on lien waiver validity and scope. Given the extent of damages involved, the Texas legislature instituted statutory lien waiver forms and notarization requirements.
*Note: For projects starting on or after January 1, 2022, lien waivers in Texas will no longer require notarization.
Texas rules for mechanics liens and notices are subject to major changes in 2022.
The information on this page has already been updated to reflect the new rules.
For a deep dive on Texas lien waivers:
Statutory lien waiver forms
Texas happens to be one of 12 states that provide statutory lien waiver forms. In addition, Texas is also only one of 3 states, that require their lien waivers to be notarized. This all seems pretty straightforward. However, reading the statute as-presented may cause some confusion. Texas construction professionals need to use the statutory form, but there is no notary block. Add it! These statutes are meant to operate together, and although there should be some caution when making modifications to a statutory lien waiver, failure to add the notary block will surely invalidate the waiver.
Exception to notarization requirements
Regardless of how strict lien waivers are regulated by Texas law, there are, as everything in law, exceptions. One is explicitly stated in §53.282(a)(3); which provides an exception for lien waivers contained in “a written original contract or subcontract for the construction, remodel or repair of a single-family house, townhouse, or duplex” and “made before labor or materials are provided under the original contract.“
This means that not only do lien waivers not need to be notarized under these circumstances, but the original contract will be enforceable as a waiver of lien rights.
A quick note on out-of-state notarizations
As a side note to those out-of-state construction companies working in Texas. The notary public doesn’t necessarily need to be a Texas notary. Out of state notaries can still stamp your lien waiver, but this must be done in the state where the notary is commissioned in; otherwise, the notarization could be deemed invalid. Thus, making the lien waiver itself, invalid.
As mentioned earlier, the state of Texas is very strict concerning lien waivers; not only do they require the use of statutory forms, but also require that the waiver be notarized. Prudent contractors should keep this in mind the next time they work on a Texas construction project. Failure to have a lien waiver notarized could result in invalidation, and potentially delay payments.