Lien without contract.

Most likely, no. If the project is on a residence that is a "homestead" then you cannot file a lien - either a Chapter 53 Mechanic's lien or a constitutional lien - without a written contract. See Tex. Prop. Code §53.254. Your only option is to file suit for breach of contract or what is called "quantum meruit".

Section 53.254 states:

(a) To fix a lien on a homestead, the person who is to furnish material or perform labor and the owner must execute a written contract setting forth the terms of the agreement.

(b) The contract must be executed before the material is furnished or the labor is performed.

(c) If the owner is married, the contract must be signed by both spouses.

(d) If the contract is made by an original contractor, the contract inures to the benefit of all persons who labor or furnish material for the original contractor.

(e) The contract must be filed with the county clerk of the county in which the homestead is located.  The county clerk shall record the contract in records kept for that purpose.

(f) An affidavit for lien filed under this subchapter that relates to a homestead must contain the following notice conspicuously printed, stamped, or typed in a size equal to at least 10-point boldface or the computer equivalent, at the top of the page:

“NOTICE:  THIS IS NOT A LIEN. THIS IS ONLY AN AFFIDAVIT CLAIMING A LIEN.”

(g) For the lien on a homestead to be valid, the notice required to be given to the owner under Section 53.252 must include or have attached the following statement:

“If a subcontractor or supplier who furnishes materials or performs labor for construction of improvements on your property is not paid, your property may be subject to a lien for the unpaid amount if:

(1) after receiving notice of the unpaid claim from the claimant, you fail to withhold payment to your contractor that is sufficient to cover the unpaid claim until the dispute is resolved;  or

(2) during construction and for 30 days after completion of construction, you fail to retain 10 percent of the contract price or 10 percent of the value of the work performed by your contractor.

“If you have complied with the law regarding the 10 percent retainage and you have withheld payment to the contractor sufficient to cover any written notice of claim and have paid that amount, if any, to the claimant, any lien claim filed on your property by a subcontractor or supplier, other than a person who contracted directly with you, will not be a valid lien on your property.  In addition, except for the required 10 percent retainage, you are not liable to a subcontractor or supplier for any amount paid to your contractor before you received written notice of the claim.”

You refer to “a residential property.”   I am going to assume you are dealing with either a home that is lived in by the owner or is being built for the person that is going to live in it.  This is important because getting a lien on a residential project is much different (more demanding) than a commercial project.  A residential structure is one that is (1) owned by one or more adults and (2) it is used or intended to be used for a dwelling by at least one of the owners.  A house being built on spec is not a residence until owned, or being purchased by, by someone who will be living in it. Once this is understood, the issue of “homestead” comes up.  In Texas you can have only one homestead.  For example, if you have a home in a city such as Houston or Dallas and a beach house in Galveston, one or the other can be your homestead.  If the residence is a homestead, you need a contract.  Furthermore, if the owners are married, that contract must be signed by both of them.  And the contract must be filed with the county where the homestead is located.  

Stanley P. Santire

Navigating the Challenges of Construction & Employment Law
SANTIRE LAW FIRM
Ph: 713-787-0405
Email: stanley@santire.com