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Is it too late to file a lien if before fixing the homestead the signed contract was not filed?

TexasRight to Lien

I am the general contractor and I was advise by an attorney that since the signed contract wasn't signed before i started fixing the home; I cannot file my lien. Even though its only been 60 days since homeowners prevent us from finishing the work. Attorney said if I don't file the signed contract with the clerk BEFORE fixing a home then I will never be able to file a lien.

1 reply

Jul 17, 2018

I'm not quite sure I follow the above situation, but let's break down the homestead requirements as much as possible. Under § 53.254 of the Texas Property Code, claimants who wish to preserve the right to lien a homestead must (a) execute a written contract (b) before any material is furnished or labor is performed. Under § 53.254(c), if an owner is married, that contract must be signed by both spouses. Under (d), if the contract is made by an original contractor, it serves to the benefit of their subs and suppliers. And finally, (e): "The contract must be filed with the county clerk of the county in which the homestead is located." So to the above question, the Texas Property Code strictly requires that a written contract be executed prior to performing work/supplying materials. The timing of when that contract must be filed is less clear. On one hand, considering the other requirements surrounding the contract must be fulfilled before any work is performed, it makes sense that the contract might need to be filed prior to providing labor and/or material. On the other hand, the statute doesn't actually specify when the filing must take place. So, the statute could be interpreted merely to require that the contract be filed at some point prior to filing a lien on a homestead. What's more, considering that § 53.254(b) does specifically require the contract be executed prior to providing labor or materials, the lack of a timeframe set out in § 53.254(e) might seem an intentional omission - purposefully creating a requirement without a strict timeframe. Ultimately, though, reasonable minds can differ on exactly when the contract must be filed. But as far as when the contract must be signed to preserve lien rights on a homestead in Texas, that contract must clearly be executed prior to providing labor or materials.

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