Filing a Lien in Texas Image

The Lone Star State is a loner in the mechanic’s lien world, as Texas easily wins the award for having the most confusing and tangled set of lien laws. How do you overcome this, and how do you file a Texas mechanic’s lien?

Don’t be intimidated! The Texas mechanics lien laws get a bad reputation mostly because they are written so poorly, and not because the underlying requirements are that complex.

If you’re unpaid on a construction project — don’t worry — you’re not alone!  Slow payment is a major challenge for contractors in Texas (and everywhere).  And nearly $1 Billion per year goes unpaid to contractors and suppliers on construction jobs. And the mechanic’s lien filing may be just what you need to help with a payment problem.

Mechanic’s lien filings are an extremely powerful tool available to Texas contractors and suppliers to make sure they get paid!

This how-to guide provides a start-to-finish explanation on how to file a Texas mechanic’s lien, and even includes free downloads of important forms. Keeping reading to get all the details right, to get your claim filed, and to get your money fast.

Step 1: Verify you’re eligible to file a Texas mechanics lien

The first step to filing a Texas mechanic’s lien is figuring out whether you actually can!  This is an important step in Texas because the lien laws contain a lot of requirements and pre-requisites. Before we get to the steps of preparing, serving, and filing the claim itself, you should spend a few moments examining whether you are in a position to file a lien.

In Texas, this involves 3 considerations. (1) Is your work covered & protected by the lien laws?; (2) Did you meet all of the notice requirements?; (3) If on a Homestead, does the GC have a properly executed contract?; and (4) Are you within the lien filing deadline?

1. Is your work covered & protected by the lien laws?

Texas Lien Filing groups venn diagram

You can’t file a mechanics lien for washing someone’s car, so what exactly will qualify you to file a lien in Texas?

The answer is pretty broad.

The Texas Property Code outlines three broad categories of project participants who are entitled to file a mechanics lien claim. These are:

  1. Parties who furnish labor and/or materials
  2. Parties who specially fabricate materials
  3. Design professionals (engineers, architects, surveyors) (see What is a Design / Artisan Lien?)

Parties that contribute to a construction or improvement project, and fall into one of the three categories above, can file a Texas mechanics lien.

2.  Did you send all the required Texas construction notices?

Don't overlook your notice requirement illustration

Figuring out how to file a Texas mechanics lien is not that difficult — as you’ll see below, the act of preparing and filing your lien in Texas is pretty straight-forward. However, the Texas monthly notice scheme is a nightmare, and this is where the Texas lien process gets such a bad reputation. While this post is about the lien filing and not the notice scheme, it is mentioned here because the notice scheme is so important to lien rights, and because it’s such a common mistake.

If you’re a subcontractor or supplier in Texas… you likely have some type of preliminary notice requirement!   Those who contract directly with the property owner — such as general contractors — are the only participants who are exempt from most notices. The below graphic quickly outlines the notice requirements for the different project types and project tiers.

Texas notice requirements infographic

Don’t overlook your notice requirement. If you don’t send the proper notices, by the proper deadline, to the right people, you will lose your powerful Texas mechanics lien rights.

Texas notices go by a lot of different, unofficial, names: preliminary notice, monthly notice, three-month notice, two-month notice. Plus, there is a specialized notice requirement for those who provide a Notice of Specially Fabricated Materials Form.


For a deep dive on Texas monthly notices:

 Ultimate Guide to Preparing & Sending Your Texas Monthly Notices


3. If on a “homestead,” did you/the GC get a properly executed contract?

Unfortunately, mechanics liens in Texas only get more complicated when the property to be improved is a “homestead.”

How many of you recognize this famous (on TV) Texas Homestead, the Southfork Ranch, home of the Ewings?

The property is a “homestead” if the property owner lives in the property. Although, there may be some exceptions to this (i.e. people who split time).  Refer to this question on our Expert Center for more detail: How do you know if a Homeowner is Homestead in Texas?

When a homestead is involved, there are additional steps required to qualify for a lien…and these additional requirements must be met prior to performing work on the property.

To file a lien against a Texas homestead:

  1. There must be a written contract between the general contractor and the homeowner;
  2. The contract must be executed & signed before any work begins;
  3. If the owner is married, the contract must be signed by both spouses (even if the property is in the name of only one spouse!); and
  4. The written contract must be filed with the county clerk of the county in which the homestead is located.

4. Are you within the Texas lien filing deadline?

The final question to answer here is whether you still have time to file a mechanics lien in Texas. The time you have to file a Texas lien depends on whether the job was residential, or non-residential. Generally speaking, contractors and suppliers have a nice length of time to get their mechanic’s lien recorded. However, calculating the lien deadline is confusing because of the law’s wording.

Step 2:  Draft your Texas mechanics lien form

Now it’s time for the big show: drafting and preparing your mechanics lien form for filing. On the one hand, this is a fairly simple task. On the other hand, there are many details you’ll need to get right and a few traps. This section will help you get the mechanics lien form you need, get it filled out, and get it ready for filing.

1. Choosing the right Texas mechanics lien form

Don’t make the mistake of using the wrong form when filing your Texas lien. The Texas mechanics lien form is very specific to the state’s rules. You cannot just use a standard “lien form” that you find somewhere on the Internet. It’s important that you get a compliant Texas lien form, and that you get it from some reputable source.

In looking for your lien form, note that a Texas mechanics lien is called an “Affidavit of Lien.”  So, this is the form that you’re looking for. Additionally, the document is slightly different for original contractors (those who contract directly with the property owner) and others (i.e. subcontractors and suppliers). You want to choose the right one.


Download a free, customizable Texas Affidavit of Lien for Original Contractors Form 

Download a free, customizable Texas Affidavit of Lien for Subcontractors or Suppliers Form

Levelset’s forms are created and reviewed by construction attorneys and payment experts; thousands of Texas contractors and suppliers have successfully used these forms to get paid.


2. How to fill out your Texas lien form

Required contents of a Texas mechanics lien information graphic

Now that you have the form in-hand, it’s time to fill it out. The Texas mechanics lien statute is clear about what must be present within an affidavit of lien.  It contains a section called “Contents of Affidavit,” spelling out exactly what information must be contained within a lien claim to make it valid.  However, as you’ll see from the discussion below, there are plenty of areas for a mistake, and getting the information correct can be difficult.

a.  It’s an affidavit and it must be verified & signed!

In filling out your Texas lien form let’s start with the last step because it’s instructive about all the other steps. The lien form in Texas is an “affidavit” that must be signed and “verified.”  It’s extremely important that your Texas lien form has a signature block at the bottom!  That you sign it!  And, that the signature block contains language indicating that the information is somehow “verified.”

The statute has this to say about the requirement: “The affidavit must be signed by the person claiming the lien or by another person on the claimant’s behalf.”

b. Lien amount — “Sworn statement of the amount of the claim”

The Texas lien form must indicate the “amount of the claim.”  This is commonly referred to as the “lien amount.”

At first glance, this is a straightforward requirement. You want to list the dollar amount that you are claiming to be due. However, this can be extremely tricky to get right, because there are some amounts you cannot include in your claim.  You want to make sure to include as much as you’re allowed, but no more. There are significant risks in “exaggerating” the amount due to you a mechanics lien claim.

What you can include in your lien amount:

  • Amounts unpaid to you related to the value of the labor and/or materials provided to the job;
  • Amounts that may be in “dispute” between you and others, so long as they are related to the work/materials put into the job.

What amounts you cannot include in your Texas lien:

  • Costs of filing the lien;
  • Interest accrued under the contract;
  • Liquidated damages or other claims for “damages” caused by contractual breaches, or otherwise; or
  • Attorney fees.

While you cannot include these ancillary amounts in your lien claim, you may still be able to collect them through court action. There is a difference between what is owed to you and what you can validly claim in a lien.  Make sure you get this right and don’t over-reach, because over-reaching can cost you significantly and can negatively impact your lien rights as a whole.

Any amount unrelated to the value of the labor and/or materials furnished may not be included in the lien claim. However, legal fees and interest may be awarded to a successful lien claimant by the court.

c. Name & address of the owner or “reputed owner”

Your Texas lien must identify the name and “last known [mailing] address” of the property owner. This is usually quite easy but can have some complicating factors, such as when the job is commissioned by a tenant, the property is sold or transferred during the job, the owner is misrepresented to you, or the property has multiple owners.

The law appears to offer some flexibility here by requiring you to identify the owner or the reputed owner.  However, the term “reputed owner” is not defined, which leaves this open for debate.

d. Name & address of “original contractor” & person that hired you

In addition to identifying the property owner or reputed owner, a Texas lien must also identify two other parties:

  1. The name & last known address of the person who hired you (the claimant) to the job; and
  2. The name and last known address of the “original contractor.”

The “original contractor” refers to the general contractor, which is the person who the property owner hired.  If you were hired by the “original contractor,” or you are the original contractor, this section will be really simple for you.  However, in the case of a sub-subcontractor or a material supplier, two different companies must be identified here.

e.  Describe your work/materials — BY MONTH!

You must describe the work/materials you provided to the job within your Texas lien…and you must provide a list of months in which you furnished labor or materials for which you are claiming payment is owed. The bad news here is that you need to list each month in which labor or materials were furnished, but unpaid, but the good news is that the description of the labor or material can be “general” and doesn’t need to be itemized and detailed. Here is how the statute explains the requirement:

[Must provide] a general statement of the kind of work done and materials furnished…[and] a statement of each month in which the work was done and materials furnished for which payment is requested…

…[However t]he affidavit is not required to set forth individual items of work done or material furnished or specially fabricated. The affidavit may use any abbreviations or symbols customary in the trade.

f.  Property description

A mechanic’s lien is a claim against a specific piece of property. It’s extremely important to identify the property correctly, and as completely as possible.  This is how the lien gets indexed by the county recorder.  If you don’t get this right, not only is your lien potentially invalid, but it could be impotent because no one sees it in the title records!

So, what is required here?  How detailed does the property description need to be?

The Texas statute requires “a description, legally sufficient for identification, of the property, sought to be charged with the lien.”  But, what constitutes such a description is not crystal clear.

The Texas Supreme Court has held that a description of the property is sufficient when the description would “enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others” (Broaddus v. Grout, 1953).  And this rule has been followed pretty generally across the Texas Courts.

But, it’s not easy to apply this rule without a close, legal examination, and even those examinations threaten to be inconsistent.  As such, the best practice is to include the property address, a lot and block number, and even better, a full legal or metes and bounds description of the property (in other words, a “legal property description”) For some guidance on this, check out our article on Researching the Legal Property Description.

g.  Identify yourself — and do it correctly!

This is the gimme field, like getting points for putting your name neatly on the top of your elementary school test. The statute provides that you must provide your “name, mailing address, and, if different, physical address.”  Don’t mess this up! Furthermore, if you are filing on behalf of a corporation or LLC, be sure to use the full company name, i.e., “ABC Contractors, LLC.”

You would be surprised at how much can go wrong with this field. Check out the 4 Most Common Mechanic’s Lien Mistakes to see how you can easily misidentify yourself in a mechanics lien claim.

h. List the notices you sent on the job

We discussed the importance of sending Texas monthly notices earlier in this post, and now these notices are coming home to roost. If you are not the general contractor, you were required to send notices. Now, within the mechanic’s lien document itself, you’re required to confirm that these were sent, and identify specifically when you sent them!

The law specifically requires that your lien claim have a “statement identifying the date each notice of the claim was sent to the owner and the method by which the notice was sent.”

This table helps you figure out your deadline to file a mechanics lien in Texas. Look in the first column to find the month when you last performed work & are owed money. If you worked on a residential job, your lien deadline is in the 2nd column. If a non-residential job, your lien deadline is in the 3rd column.

Work Performed In
Residential Lien Due
Non-Residential Lien Due
State Liens Due
April 2019
Monday, 7/15
Thursday, 8/15
Monday, 7/15
May 2019
Thursday, 8/15
Friday, 9/13
Thursday, 8/15
June 2019
Friday, 9/13
Tuesday, 10/15
Friday, 9/13
July 2019
Tuesday, 10/15
Friday, 11/15
Tuesday, 10/15
August 2019
Friday, 11/15
Friday, 12/13
Friday, 11/15
September 2019
Friday, 12/13
Wednesday, 1/15/20
Friday, 12/13
October 2019
Wednesday, 1/15/20
Thursday, 2/14/20
Wednesday, 1/15/20
November 2019
Thursday, 2/14/20
Friday, 3/13/20
Thursday, 2/14/20
December 2019
Friday, 3/13/20
Wednesday, 4/15/20
Friday, 3/13/20
January 2020
Wednesday, 4/15/20
Friday, 5/15/20
Wednesday, 4/15/20
February 2020
Friday, 5/15
Monday, 6/15
Friday, 5/15
February 2020
Friday, 5/15/20
Monday, 6/15/20
Friday, 5/15/20

3. Attachments?  Attach copies of the notices, contracts, invoices to the lien?

If you’ve gotten through #1 – #8 above you are ready to file your Texas mechanics lien. You have completed everything that is required.  However, you should consider taking another step.  The Texas lien statute says that you “may” include some attachments with your Texas mechanics lien.  Specifically, it says that you “may attach to the affidavit a copy of any applicable written agreement or contract and a copy of each notice sent to the owner.”

You should strongly consider doing this. Attaching these documents to your mechanics lien makes the lien statement stronger, more clear, and protects you against “not having enough” details in your claim document. These problems may arise after your lien is filed, but can even cause your lien to get rejected by the recorder.

The relevant Texas lien exhibits might include any of the following:

  • A copy of your written contract
  • Any invoices or work orders relevant to your work on this project
  • Any notices sent by you to the owner or general contractor

By attaching this type of documentation to the lien claim, pre-emptive proof of the validity of the debt is contained with the lien filing. This should make it more difficult for the lien claim to be disputed.

Texas-Lien-Checklist-Exhibits-List-1

A word of caution, however: while parties may want to include all sorts of documents with their lien claims (after all, if some supporting exhibits is good – more supporting exhibits must be better, right?), too many excessive pages may rack up the cost to record your lien.

Here is a tip: Many counties will accept exhibits that are displayed two to even four pages on one sheet of paper (see an example to the right). However, it is important to call and confirm that the county recording your mechanics lien will accept this type of submission.

To prevent confusion, be sure to clearly and correctly label your exhibits – i.e. Exhibit A, Exhibit B, etc. – as shown above.

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Step 3 – File your lien with the appropriate county recording office

Congratulations. Your Texas mechanics lien form is now prepared and ready to go. It’s time to file your document. Obviously, this is an extremely important part of this process. Although there are some possible scenarios where a Texas lien can be “self-perfecting” and somewhat effective without being filed — a so-called “Constitutional lien” — recording the lien is required in most situations, and is a best practice in all situations.

So, let’s move onto Step 3 — getting your lien recorded with the county!

You’ll need to pay close attention to details when filing your lien with the county because there is little consistency between county recorders in Texas. Counties may have different margin and paper size recording requirements, and they will almost certainly have different filing fees.

Generally speaking, you need to file your Texas mechanics lien in the county “Recorder’s Office” in the county where the property being liened is located.

Counties record a lot of different documents in a lot of different offices. You need to be sure that you’re filing in the right county, and then that you’re filing in the right office!  This can be confusing, so we’ve compiled a list of all the Texas county recording offices that file mechanic lien claims, and provide you with some information about how to file in the county here:

Step 4:  Send a copy to the property owner & GC within 5 days of filing

The mechanic’s lien document is now prepared and filed with the appropriate county recorder. It’s now officially recorded and filed, and this is great news. You should be sniffing the finish line of the filing process, but there is an additional and critical step: giving the property owner and general contractor notice that you filed the lien.

The next step is to send a copy of the mechanic’s lien to the property owner and the general contractor. You must get this sent to these parties within 5 days from when you filed the lien. Send a copy of the lien to the property owner and the general contractor by certified mail with return receipt requested. It is a good practice to send a service copy of your lien at the same time of filing, as you can send an unrecorded copy. This ensures that your claim will get served in time.

You need to get this done.  If you don’t provide this notice, all of your hard work could be for nothing. You can see how problematic this can be from this question on our Expert Center: Did not send notices to property owners after we filed liens. What do we do now to collect? Help!!!  As stated in one of the answers, “If a TX lien is filed, but not served, that lien very well may be invalid and unenforceable if later challenged or if enforcement of the lien is attempted.”

This is not just a required step, but it’s a good idea. You didn’t file this mechanic’s lien claim for sport. You filed the lien to get paid. It isn’t helping you much if no one knows that you filed it!  You get to kill two birds with one stone here:  You start getting people’s attention, and you meet the state requirements.

What you need to know & do after you file your Texas mechanics lien

That’s it!  Your mechanic’s lien is filed, recorded, served, and ready to go to work for you to get you paid.  This is usually enough.  Our research shows that the majority of mechanic lien filings get paid quickly, without any further collection or legal efforts. Sometimes, however, more work is required.

Enforce your lien (foresclosure action)

Mechanic lien claims will not cloud title and be effective forever. In Texas, you have a nice long period to let your mechanic’s lien filing go to work for you – 2 years.  Unlike many states, liens filed in Texas have a pretty long life. In Texas, the deadline to foreclose on the lien claim is either 2 years from the last day of the filing period or 1 year from completion of the work, whichever is later. On residential projects, the period is a bit shorter: just 1 year from either date, whichever is later. In either case, though, this is a nice long period that gives you time to make demands, escalate the situation, and get your claim paid.

Forclosing a lien claim is a full legal proceeding, and many times it may not be worth it. One alternative route you can take is to send a Notice of Intent to Foreclose. These notices are incredibly effective at inducing payment, as they’re essentially a final warning that you either get paid or you will take legal action.

Release the lien claim

If, however, your mechanics lien has effectively rendered payment, congratulations! But this may not be the end of the story. Under Texas statute, if the property owner, general contractor, or any other party making payment sends a written request to remove (release) the lien, you are required to do so. In fact, the law states that the lien should be released within 10 days of receipt of the notice.

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That pretty much wraps up all the essential things to know when filing a mechanics lien in the state of Texas. Good luck!

Summary
How to File Your Texas Mechanics Lien and Get Paid
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How to File Your Texas Mechanics Lien and Get Paid
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Texas has the most confusing lien laws. REALX! Read this guide to know your eligibility, sending required notices, how to draft mechanics lien in Texas.
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Levelset
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