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Can we file a lien claim against a homestead in Texas if there's no written contract?

We did some work for a homeowner after Hurricane Harvey. We were originally working with another contractor but he backed out so we did the work ourselves. The homeowner is well aware which contractor did the work on her home. The problem is she does not want to pay and the contract that was signed is from the original contractor. The invoice and the notice of intent was sent by our company but I was getting ready to file the lien and wanted to attach the contract and realized we never had her sign one for our company to replace that one. What should I do?

1 reply

Oct 31, 2017

To the extent that the property improved is a homestead, the failure to obtain a signed written contract (signed by both spouses, if the homeowner was married) is fatal to mechanics lien. Accordingly, a mechanics lien may not be the best avenue to recovery. This may mean that the best option may be either, 1) sending the project to an outsourced collections group; or 2) initiating a lawsuit.

While a lawsuit wouldn't have the benefit of the mechanics lien securing the debt, or a written contract, there may still be options that make a lawsuit a workable solution. To the extent there was an oral or implied contract there may be a cause of action for breach of contract. There may also be the ability to recover through an "unjust enrichment" action. In any event, it is likely time to enlist the help of a local attorney who can examine your situation and help you moving forward with this particular case.

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