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Can we lien a property if the owners on record are deceased?

Work remains unpaid on a TX home and there are some hurdles to collecting. The property owners on record are a deceased couple- property ownership has not been updated in years by the executor of the estate. The executor contracted a complete bathroom and kitchen remodel this year for which they did not pay the balance. A notice of intent has been delivered with no response. What can the contractor expect if they lien the property with the legal/deceased property owners and the executor listed on the document as well?

2 replies

Jul 1, 2019

These are good questions. First and foremost: a property owner's death might complicate recovery, but it won't prevent the filing of a mechanics lien, outright. Still, there are some complicating factors that may come into play, and we'll dive into those more below.

Ownership and authorization for work
First, conceivably, there could be a potential issue regarding whether the work was considered "authorized" since mechanics lien rights arise for work performed to improve real property where the owner has authorized that work. However, when the owners have passed away and an executor is acting as that owner's agent - that executor is very likely acting as the agent of the owner by making repairs, via the owner's estate. Thus, the owner's estate authorizing the work is likely sufficient to serve as the owner authorizing work, giving rise to potential mechanics lien rights. After all, under § 53-001(7), a contractor is still considered an "original" or prime contractor when they've been hired by the agent of the owner. So, even if the executor isn't deemed to be the owner themselves, they would probably be considered an agent.

But, if there's a tenant living in the property who is not also acting as the agent of the owners, filing a lien for tenant improvements could become a little complicated. But again - if work was authorized by the owner or the agent of the owner, then lien rights would likely arise, as usual. For more info on liens for tenant improvements, here's a good resource: What Happens to Mechanics Lien Rights If My Project is a Tenant Improvement?

Homestead property concerns
In Texas, some residential construction projects can pose additional requirements. That is, if the property is considered a homestead. But, in a situation where the record owner has passed away, that property would likely not be considered a homestead. Even if an heir or the executor of the estate lives in the property - if the estate has not gone through probate and if the actual ownership of the property has not changed hands, then the information about who resides in the property may be irrelevant. And, if that's the case, the additional homestead requirements would not come into play. After all - the homestead rules are intended to preserve the rights of owners who reside in the improved property. For more information on Texas homestead properties and how that might affect the ability to file a lien claim, this is a great resource: Texas Mechanics Lien on Homestead Property: Everything You Need to Know

The lien, itself
Regarding the information on the lien, itself - I can't advise on how to fill out a lien for your specific situation, but I can provide some info that should be useful. With that in mind, § 53-054(2) of the Texas Property Code requires that a lien claimant include the name and last known address of the property owner or the reputed owner of the property. So, if deceased owners are still listed as the record owner of the property, those owners should likely appear on the face of a filed lien. If there is a tenant that lives at the property who has authorized the work, including that tenant's information may be useful, too. But, including the information of someone who does not live at the property as a "tenant" might not make much sense.

I hope this information was helpful! For more information on Texas lien rights, here's a great resource: Texas Mechanics Lien Overview

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Oct 9, 2020

I didn't have a contract

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