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If a statutory mechanics lien gets tossed out, would a constitutional lien still be effective?

TexasMechanics Lien

If I file one affidavit claiming both a statutory mechanics lien and a constitutional mechanics lien, and if the statutory lien ends up being thrown out - would the constitutional lien be thrown out simply because they're on the same document?

2 replies

Oct 20, 2021

Wildly enough, there is actually a 2020 case addressing this exact issue: Baxter Construction Company, LLC v. Senior Care Living VI, LLC. According to the Second District of the Texas Court of Appeals: While there may only be one affidavit filed, that single affidavit can create two separate liens - a constitutional mechanics lien and a statutory mechanics lien.

In that case, Baxter filed an affidavit claiming both a statutory mechanics lien and a constitutional lien. Senior Care contended that there was only one lien because there was only one document filed. The court sided with Baxter, saying: "Baxter did not record one lien; Baxter filed one affidavit, and in doing so recorded two separate liens, one statutory and one constitutional." That decision was later cited by the First District of the Texas Court of Appeals in a consistent opinion in May of 2021 (and you can find that decision here).

Based on these decisions, it seems that it's safe to say (at least for now) that an issue with a statutory lien shouldn't automatically invalidate a constitutional lien secured by the same affidavit.

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Oct 28, 2021
A constitutional lien can be valid even if the statutory lien is not. After all, to have a perfected statutory lien you need to timely file notices and the lien filing. None of this is needed for a constitutional lien. However, for the constitutional lien you need to file a notice of lien nd not a lien affidavit. After all, a constitutional lien is self- executing. You need to file the notice to guard against a good faith purchaser in that such a purchase of the property extinguishes the lien.
 
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