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I need to know if I can file a lien

So I have worked with the owner of a business that was wanting to do a finish out on a new lease property for the last 6 or so months. I did not have a contract in place, but I have many texts back and forth asking me to do certain things and when the job would get started. So what I did: I designed the entire project and took my design to the architects to draw up and put a set of plans together. I dealt with the owner when they wanted to make revisions and then in turn worked with the A/E to make the revisions. I met the owner several times onsite and assisted through the entire process. I made all of the submittals to the city for the permitting process and revisions to get an approved permit. I came up with the scope of work for the entire project and even discussed entire cost for the project and owner told me we need to get the numbers settled so we can "get started". They have now utilized another contractor to do all of the work. I feel I should be compensated for my time when they asked me to design and assist in the entire process. Am I able to file a lien on them?

1 reply

Jan 28, 2019

That's a good question, and I'm sorry to hear about your situation. First, I should note that I'm not able to provide you advice on whether you can or should file a mechanics lien for your work. However, I can provide some information surrounding Texas mechanics lien rights - and I think that should help you come to your own conclusion on the matter. First, as a general rule, lien rights will arise when a party has performed authorized work that results in the actual improvement of the underlying property. So, in order for lien rights to arise, the work being done must be agreed to by the owner, and that work performed must actually improve the property. While lien rights do exist for some parties who do design or predatory work, typically, for that work to give rise to lien rights, it'd need to be performed by a licensed design professional. That may seem pretty strict, but recall that mechanics lien rights are a specific remedy granted for specific situations - and even where lien rights might not be the best fit for recovery, other options will remain. Anyway, under § 53-021 of the Texas Property Code, a person will have the right to lien if that person: "(1) labors, specially fabricates material, or furnishes labor or materials for construction or repair in this state of: (A) a house, building, or improvement; (B) a levee or embankment to be erected for the reclamation of overflow land along a river or creek; or (C) a railroad; and (2) the person labors, specially fabricates the material, or furnishes the labor or materials under or by virtue of a contract with the owner or the owner’s agent, trustee, receiver, contractor, or subcontractor." Thus, if there's no agreement in place to perform work and improve property, lien rights will likely not arise. Further, where the specific work performed didn't result in the actual improvement of property (but rather, set the proverbial groundwork for that improvement to take place), lien rights might not be appropriate. Of course - verbal agreements and/or text messages or other communications have been known to constitute a contract, depending on the circumstances, and there are always nuances to who can and cannot file a lien claim. Thus, it might be worthwhile to consult with a local construction attorney so that they might be able to thoroughly assess the facts, circumstances, and documentation in order to assess whether proceeding with a lien is an option. Of course, keep in mind that (1) the mere threat of lien is often enough to compel payment (which zlien discusses in this article: What Is a Notice of Intent to Lien and Should You Send One?), and (2) there are always other options for recovery, like through the threat of litigation, through small claims court, or through actually filing a lawsuit. But again - reaching out to a local attorney would be the best way to clarify potential options for moving forward since they will be able to assess the circumstances and provide legal advice (though, small claims court might be utilized without the help of an attorney). For more information on who can file a Texas mechanics lien, this resource might be useful: Texas Lien & Notice FAQs.

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