Texas Lien Waivers Guide and FAQs

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Texas Lien Waiver FAQs

Texas Lien Waiver Overview

Texas Lien Waiver Rules


  • Rules At A Glance
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Specific Forms Are Required

Texas sets out required lien waiver forms by statute. In order to be valid, a Texas lien waiver must follow those forms.


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Notarization Required

Texas lien waivers are required to be notarized in order to be valid.


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Cannot Waive Rights in Contract

While not explicitly clear, it appears that, because of the requirement for “evidence of payment to the claimant exits” for a conditional waiver, and actual receipt for an unconditional release, advance lien waivers are unenforceable.


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Cannot Waive Rights Before Payment

In Texas, lien rights may not be waived unless the claimant actually received payment in good and sufficient funds in full for the lien claim.

Lien waivers are documents commonly exchanged among parties in the construction industry. Typically, the party making a payment will require the party receiving payment to sign and execute a lien waiver.

Lien waivers act as a receipt for funds for the receiving party, and specify that the party waives their mechanics lien rights in the project related to payment.

Texas has strict and specific requirements related to lien waivers. Not only is Texas one of the 12 states that provide statutory lien waiver forms, but it is also just one of three states that require lien waivers to be notarized. Failure to use these forms, using the wrong form, or attempts to modify the waiver language will result in the lien waiver being invalid and unenforceable. As will failing to get the lien waiver notarized. Note, however, that a Texas lien waiver can be notarized outside of Texas, by a notary in a different state. This makes it easier for parties performing work in Texas, but not based out of that state, to comply with the specific requirements of Texas lien waiver law.

Providing standardized lien waiver templates by statute is an attempt to level the playing field and simplify the waiver exchange process. In states that do not provide statutory forms, there is an inherent risk of abuse. Many higher tier parties will include additional language that waives more contract and mechanics lien rights than originally anticipated. Parties can be surprised by what rights they ended up waiving when the language of the lien waiver is not regulated. 

But mistakes can still be made, which is why it’s so important to understand Texas’ lien waiver requirements.

Here are guides to the four Texas statutory lien waivers:

Texas Lien Waivers FAQs

Texas's lien waiver rules and requirements are, like the rest of Texas law with respect to mechanics liens and construction payment, complex and confusing. Texas has statutory forms, requires waivers to be notarized, and more. There are a lot of intricacies with respect to Texas lien waiver law, which can result make it hard to know what is required and sufficient. We have some of the most common questions about Texas lien waiver rules below.

Texas Lien Waiver FAQs

Does Texas require a specific statutory lien waiver form?

Yes, Texas provides statutory lien waiver forms which must be used in order to be considered valid and enforceable.

 

Can lien rights be waived by contract?

No, Texas statute specifically prohibits “no-lien clauses” or other contract provisions that purport to waive lien rights before work is performed. 

Texas Property Code § 53.281 et seq provides that “[a]ny waiver or release of a lien or payment bond claim . . . is unenforceable unless a waiver or release is executed and delivered in accordance with this subchapter.”  The subchapter has two provisions that suggest no lien clauses contained within contracts are invalid and unenforceable:

§53.281(b)(3):  A waiver and release is effective…only if…(3) in the case of a conditional release, evidence of payment to the claimant exists.

§53.283: A person may not require a claimant or potential claimant to execute an unconditional waiver and release for a progress payment or final payment amount unless the claimant or potential claimant received payment in that amount in good and sufficient funds.

These two provisions appear to state that there are two types of waiver (i) conditional; or (ii) unconditional, and that payment is required for either type to be valid. §53.281 requires payment to validate a conditional release and §53.283 requires payment to validate an unconditional release.

Can lien rights be waived in advance of payments, furnishing work, or furnishing materials in Texas?

As noted above in the “can lien rights be waived by contract” section, it appears that waivers cannot be valid prior to payment. Texas state requires “evidence of payment to the claimant exists” for a conditional waiver, and actual receipt of payment for an unconditional release. Accordingly, it appears that lien waivers in advance of payment are not enforceable.

However, this may not be the end of the road in whether or not a lien waiver could be valid despite being given in advance of payments. Texas, like some other states, has an exception where many of the statutory requirements related to lien waivers don’t apply. This exception has to do with settlement agreements.

Texas legislators, when modifying the lien waiver rules and requirements, seemed concerned about restricting the ability to legally settle claims and disputes by mandating super-strict lien waiver requirements to always apply.

Accordingly, if parties involved on a construction project are “settling” their legal claims and disputes, the law will not restrict the forms that they can use to waive those claims. So, if there is a dispute over payment, and the parties execute some document as a settlement of those claims, it may be effective to waive lien rights, despite not being in the statutory form, and being given prior to full payment.

Must a Texas lien waiver be notarized?
Do Texas lien waiver requirements apply to every project?

There’s one exception to Texas’ statutory lien waiver requirements. A lien waiver may be included in a written, original contract for the construction, remodel, or repair of a single-family house, townhouse, or duplex. On all other project types, the statutory forms must be used.

Do Texas lien waivers waive all of my rights?

That depends on the form that is used. The statutory progress payment waivers include a section that states that the waiver and release, “except unpaid retention, pending modifications and changes or items furnished after” the “through date.” The final payment form waives all mechanics lien rights and any claim for payment

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Recent Questions & Answers
About Texas Lien Waivers

…Should i go ahead and pay these or have the statue of limitations expired?

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Why should I sign this waiver when no material has been purchased nor a payment has been secured for a possible future purchase?

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Do texas lein waivers have to be signed by an officer of the company?

Free Texas Lien Waivers Forms & Templates

Texas has specific lien waiver forms that should be used by everyone on an Texas construction project. Using these forms is safe, easy, stress-free, and fair for everyone involved. And, by using waiver forms that match the statutorily required text, there won’t be any surprises as to what else is being waived.

The forms provided here for free by Levelset are compliant with the Texas rules. You can download them free, or use our free system to send or request your compliant  Texas lien waiver form.

Free Texas Lien Waiver Forms

These Texas lien waiver forms are compliant with the state's requirements. Make it easy, and use forms from the source you can trust.

Texas Final Unconditional Lien Waiver Form - free from

Texas Final Unconditional Lien Waiver Form

The tx final unconditional waiver (also called a final unconditional lien release) should be used when the final payment for a project has been made...

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Texas Partial Conditional Lien Waiver Form - free from

Texas Partial Conditional Lien Waiver Form

The Texas partial conditional waiver (also called a partial conditional lien release) should be used when a progress payment on the project is expected. There...

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Texas Partial Unconditional Lien Waiver Form - free from

Texas Partial Unconditional Lien Waiver Form

This tx partial unconditional waiver (also called a partial unconditional lien release) should be used when a progress payment on the project has been received....

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Texas Final Conditional Lien Waiver Form - free from

Texas Final Conditional Lien Waiver Form

This tx final conditional waiver (also called a final conditional lien release but not to be confused with a lien cancellation) should be used when...

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