Texas Lien Waivers
Guide and FAQs

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

Yes. A Texas lien waiver must be signed and notarized. Texas is just one of three states with this requirement. Failure to notarize a lien waiver will invalidate it.

• Note: Effective on all original contracts entered into on or after 1/1/22, Texas lien waivers will no longer need to be notarized

It depends. Conditional lien waivers become binding once there is evidence of payment being made.

Unconditional lien waivers are binding once they’re signed. However, Texas statute prohibits requesting an unconditional waiver before payment is actually made.

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.

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.

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.

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 date indicated on the waiver. The final payment form waives all mechanics lien rights and any claim for payment.”

• Read more about the four types of waiver forms used in Texas.