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Are we required to file an Affidavit of Filing of Contract - Homestead in Texas for Emergency Service/Water Damage work?

Texas

We are a water mitigation company doing emergency service work related to the freeze in Texas. This involves removal of water damaged drywall, insulation etc. as well as the drying out of those areas with dehumidifiers, fans and air scrubbers. Once we have done our work, a separate contractor would then be hired by the homeowner to come to do the construction portion of the job (basically replacing everything we had to remove). Are we to file the Affidavit of and Filing of Contract - Homestead for each job in order to protect our ability to file a lien?

7 replies

Mar 8, 2021

In order to be able to file a mechanic's lien against a homeowner's homestead property, a contractor contracting directly with the owner would have to comply with the homestead lien warning provisions of Texas Property Code sections 53.254, et seq. The requirements include, without limitation, a written contract signed by husband and wife, with the mandatory homestead lien warnings, and filing of the contract with the County Clerk. Retain a construction attorney to evaluate your situation and to provide appropriate advice. Good luck.

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Mar 9, 2021

Am I considered a "contractor" for the scope of work that I'm doing? I guess that should have been my main question.

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Mar 9, 2021

If you contracted directly with the owner for work that benefited the real property, such as demolition of water damaged materials, then you are an original contractor under Chapter 53 of the Texas Property Code, and would be entitled to pursue a Texas Constitutional lien and a mechanic's lien (assuming that you are not working on a homeowner's homestead. That is a whole other question for another day.)

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Mar 9, 2021

I am assuming they are all homesteads. : )

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Mar 9, 2021

For a house to be a person's homestead, the house has to be titled in the person's name and the person must live there. The contractor that contracted with the owner is called the "original contractor" under Chapter 53 of the Texas Property Code (which governs the propriety of mechanic's liens). If the property at issue is the person's homestead, then for a contractor to be entitled to file a valid mechanic's lien against the homestead, he would have to comply with Chapter 53 of the Texas Property Code. Among the requirements are a written contract signed by the owners of the homestead (husband and wife), certain homestead warnings, and filing of the contract with the county clerk. Those formalities do not usually happen. Without them, any attempted mechanic's lien filing would be invalid.

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Mar 9, 2021

Hello,

In Texas those pre-filings that are required in other states are not required here. The short answer to your question is "No."

E. Aaron Cartwright III
214.789.1354
Aaron@EACLawyer.com

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Mar 9, 2021

Now I'm really confused. There seems to be two contradictory answers given to the question.

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