We are a Texas builder who gets unconditional progress payment lien waivers signed by all of our subs/suppliers, but they are not notarized. Are signed but NOT notarized lien waivers valuable AT ALL in Texas?
Jan 31, 2019
Texas is not only one of the 12 states with statutory waiver forms, it's also one of only 3 states that require waivers to be notarized.
Texas law is specific that lien waivers must be notarized to effectively release the owner from filed lien claims. Specifically, Texas § 53.281(b)(2) states that:
"A waiver and release is effective to release the owner, the owner’s property, the contractor, and the surety on a payment bond from claims and liens only if:
(1) the waiver and release substantially complies with one of the forms prescribed by Section 53.284;
(2) the waiver and release is signed by the claimant or the claimant’s authorized agent and notarized; and
(3) in the case of a conditional release, evidence of payment to the claimant exists."
This is requirement is part of legislation passed in 2013 in which Texas got strict about lien waivers.
Note, however, that there may be certain situations in which the lien waiver requirements do not specifically apply. Public projects, and projects on a single family residence in which a waiver was contained within a written contract and made prior to any labor or materials being furnished under the original contract, are exempt from the waiver requirements.
Also, to the extent a waiver is an actual settlement agreement and waiver of legal claims - it is not required to take the form of a statutory lien waiver. And, to the extent that no lien or claim is made within the statutory time limit, the form of a waiver is immaterial.
It is, however, a specific requirement for the validity of most Texas lien waivers, that the waiver be notarized in order to be valid.
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