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How does the clerk tell if a lien is valid?

I received a notice with intent to file a lien. The project was completed may 11th and the notice was received august 15th. This is for a residential homestead. Would they be able to file a lien and I would still have to go dispute it as invalid? Or how does a clerk tell if a lien is invalid.

2 replies

Aug 17, 2020

Firstly, county recorders offices, for the most part, will only record or deny a mechanics lien filing of the document isn't in the proper format or missing required information. They do not check for the validity of the claim.

See: Common Reasons County Recorders Reject Liens

Secondly, Texas mechanics lien laws are complex, and even more so when it comes to homestead properties. The original/prime contract must be signed by both spouses, the contract must be filed, subs are required to send monthly notices with required additional information, and so on. Lastly, if you believe the claim is invalid, you can demand the removal of the claim by the claimant. If they refuse, you will need to dispute the claim in court. The most streamlined option for this would be to file a Summary Motion to Remove the Invalid or Unenforceable Lien under Tex. Prop. Code §53-160. Furthermore, if the action is successful, the court will award costs and attorney's fees as are "equitable and just." You should contact a local attorney to help you with this process. We have a few Texas construction attorneys in our Expert Center Community you may want to reach out to personally. Good luck!

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Aug 17, 2020

In Texas, parties who contract directly with the property owner are not required to send a preliminary notice to retain lien rights. Unless the property is a residential homestead, the direct contractor must file the contract itself with the county recorder. If a lien was filed by a subcontractor, on residential projects a preliminary notice must be sent to the owner and prime contractor by the 15th day of the 2nd month following the month that work was performed and unpaid. Notice must be sent for each month work was performed and unpaid. If you are dealing with a subcontractor initiating a mechanics lien the notice of intent to file a lien was received on the last qualifying day, the 15th day of the 2nd month following the month that work was performed and unpaid. On residential projects, the deadline to file a Texas mechanics lien is the 15th day of the 3rd month after the month in which the claimant last provided labor or materials. Notice must be sent to the owner and prime contractor no later than the 5th business day after the contractor filed a lien with the clerk. It is acceptable to send the notice to the owner and prime contractor before filing the notice, or at the same time. This post is likely to be helpful to you in regards to mechanics lien guidelines and FAQs in Texas: Texas Mechanics Lien Guide and FAQs

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