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On a residential new construction or remodel, who has to sign the contract? Both husband and wife?

We have a situation where we are doing a stair remodel and only the husband signed the contract to perform work. Now we are about to have to file a mechanic's lien for final payment due to customer non-payment. I am concerned about the wife having not signed.

1 reply

Jul 24, 2019

Texas rules and requirements surrounding construction payment are complex. And, the laws regarding liens on homestead property set out additional requirements that are even more strict than usual.

There are specific requirements that must be met prior to beginning work on a Texas homestead in order for project participants to qualify for mechanics lien protection in the event of nonpayment. These requirements include the following:

There must be a written contract between the general contractor and the homeowner;
The contract must be executed & signed before any work begins;
If the owner is married, the contract must be signed by both spouses (even if the property is in the name of only one spouse!); and
The written contract must be filed with the county clerk of the county in which the homestead is located.

Residential property is not always a homestead, but it is generally best practice to treat all residential projects as a homestead out of an abundance of caution. However, a property owner may only have one homestead, so if the property owner owns other Texas properties, or doesn't reside in the property being improved, it may not qualify as a homestead with those extra protections against liens.

Additionally, Texas provides for a "self-perfecting" Constitutional mechanics lien in some circumstances. To the extent that work is not performed on a homestead property, none of the homestead contractual requirements apply and a direct contractor has a lien just by virtue of providing labor or materials. To the extent that work is performed on a homestead property,there are still specific actions that must be taken and requirements that must be met in order to claim a constitutional lien. The extent of these requirements depends on whether the work was for the original new construction of the homestead, or for renovation/repair work. When the project is for the renovation or repair of a homestead property the same contractual requirements apply in order to claim a Consitutional lien as a "regular" statutory mechanics lien.

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