Texas State Lien Law Summary

STATUTORY LIENS:

Furnisher of labor or materials to the owner, owner’s agent, contractor, subcontractor, or sub-sub. Includes those supplying labor, plant material or other supplies for landscaping. Temporary employment agency that provides qualified laborers to subcontractor, and pays the workers and provides all benefits to them, is entitled to a mechanic’s lien. Rental equipment and claimants who specially fabricate material are also covered, as are those who provide labor or materials for the demolition of a structure are also covered. Architects, engineers, and surveyors are also entitled to liens if their contract is in writing and their plan or plat is used in the project. Suppliers to suppliers MAY be covered, based on language of statue and some case law, though other cases say they are not. NOTE that for a lien to attach to a homestead, the contract needs to be in writing. [53.001, 53.021, 53.254; Advance’d Temporaries, Inc. v. Reliance Surety Co. 227 S.W.3d 46 (Tex. 2007); Grammar v. Hesperian, 70 S.W.2d 220 (1934); Hillsdale Gravel Co. v. Dennehy Const. Co., 185 S.W.2d 583 (Tex.Civ. App.Eastland,1945); Schor at §44.02[A]]

CONSTITUTIONAL LIENS:

Those contracting directly with the owner. NOTE, however, that where the original contractor’s contract with the owner is deemed to be a sham contract (e.g., because the original contractor and the owner are essentially identical), then the first tier subcontractor may be deemed to be an original contractor. There are no notice requirements for such a lien, but if no notices are given, it will not be effective against a third party without actual notice. [Schor at §44.02[A]; Trinity Drywall Systems, LLC v. Toka General Contractors, Ltd., 416 S.W.3d 201 (Tex.App. El Paso, 2013); Cavazos v. Munoz, 305 B.R. 661, (S.D.Tex. 2004)] NOTE that apparently a claimant contracting directly with a lessee cannot have a constitutional lien against the real property, unless the lessee is demonstrated to be the owner’s agent. The lien must be limited to the leasehold interest. Further, if the lien includes a claim or a constitutional lien against the real property, instead of just the leasehold interest, the entire lien may be held invalid, as an unperfected lien. [Denco CS Corp. v. Body Bar LLC, 445 S.W.3d 863 (2014)].

CONSTITUTIONAL LIENS ON A RESIDENTIAL HOMESTEAD:

For an original contractor to create a constitutional mechanics’ lien for both new improvements and renovation or repair work performed on a residential homestead, the contract must set forth the terms of the agreement, it must be signed by both the husband and wife before the work commenced, and it must be recorded. In addition, for repairs or renovation to the homestead, the owner may rescind the contract within 3 days after its execution, and the homeowner must execute the contract at the office of the lender, an attorney, or a title company. Note that even if the property is only in the name of one spouse, and no homestead exemption is filed, if the other spouse has not signed the contract, no lien can attach. It is, therefore, the claimant’s duty to find out or explicitly ask if owner is married. [53.254; Cavazos v. Munoz, 305 B.R. 661, (S.D.Tex. 2004); and Texas Constitution, Article XVI, Sec. 50(a)(5); Denmon v. Atlas Leasing, L.L.C., 285 S.W.3d 591 [Tex.App.-Dallas,2009]

TRUSTS FUNDS HELD BY GENERAL OR SUBCONTRACTOR:

Laborers, mechanics, contractors, subcontractors, or materialmen who labor or who furnish labor or materials for the construction or repair of an improvement on specific real property. [162.003]

BOND:

Those who supply labor or materials to the contractor, subcontractor, or sub-sub. [2253.021]

CLAIMS AGAINST CONTRACT FUNDS:

Furnisher of labor or materials, and only where original contract is less than $25,000. Suppliers to suppliers are not covered. [53.231; Huddleston v. Nislar, 72 S.W.2d 959 (Ct. Civ. App.Amarillo, 1934)]

TRUSTS FUNDS HELD BY GENERAL CONTRACTOR OR SUBCONTRACTOR:

Laborers, mechanics, contractors, subcontractors, or materialmen who labor or who furnish labor or materials for the construction or repair of an improvement on specific real property. [162.003]

CONSTITUTIONAL LIENS:

Available only to those contracting directly with the owner, and they are against the structure and the land on which it is situated. Note that on a residential project, even if the property is only in the name of one spouse, and no homestead exemption is filed, if the other spouse has not signed the contract, no lien can attach. It is, therefore, the claimant’s duty to find out or explicitly ask if owner is married. [53.254; Note that even if the property is only in the name of one spouse, and no homestead exemption is filed, if the other spouse has not signed the contract, no lien can attach. It is, therefore, the claimant’s duty to find out or explicitly ask if the owner is married. [53.254; Cavazos v. Munoz, 305 B.R. 661, (S.D.Tex. 2004); and Texas Constitution, Article XVI, Sec. 50(a)(5); Denmon v. Atlas Leasing, L.L.C., 285 S.W.3d 591 [Tex.App.Dallas,2009]. NOTE that apparently a claimant contracting directly with a lessee cannot have a constitutional lien against the real property, unless the lessee is demonstrated to be the owner’s agent, nor can the claimant have a lien against the real property itself, only against the leasehold interest. Further, if the lien includes a claim or a constitutional lien against the real property, the entire lien may be held invalid, as an unperfected lien. [Denco CS Corp. v. Body Bar LLC, 445 S.W.3d 863 (Ct.App. Texarkana 2014)].

STATUTORY LIENS:

Available to all other claimants who follow the rules described herein. HOWEVER, where a claimant follows the procedures discussed here, but does not include the “fund-trapping” language, their lien will only attach to the retainage. Where a claimant includes the fund-trapping language, the owner is required to withhold funds from the contract to cover claimant’s claim. If the owner fails to do so, then the owner becomes personally liable for the debt, and the owner’s real property will be subject to the lien. [53.021; Schor at §44.02A-D] NOTE that while generally the lien rights of a tenant’s contractor will be limited to the leasehold interest of the tenant, case law has modified this general policy. The court held that, where a lease was contingent upon the completion of certain improvements, and thereafter became a lease, the tenant was in essence the owner’s original contractor, and the tenant’s contractor was effectively a lower-tier subcontractor entitled to a lien upon the owner’s interest in the property. [Bond v. Kagan-Edelman Ents., 985 S.W.2d 253 (1999); Schor supplement at §44.02]

BOND:

Iif an original contractor who has a written contract with the owner files one. If a bond is provided, then liens against the owner’s real property are not allowed. The bond is supposed to be filed, so be sure to check the records in the county where the project is located. [53.210; Schor at §44.03[A]]

RETAINAGE:

[53.025, 53.102]

CONTRACT FUNDS:

[53.081]

TRUSTS FUNDS HELD BY GENERAL OR SUBCONTRACTOR:

Construction payments made to a contractor or sub, or an officer, director or agent of the contractor or sub, under a construction contract for the improvement of specific property in Texas. These funds are to be held in trust for the artisans, laborers, contractors, subs or materialmen who labor or furnish labor or material for the project. The trust is not violated, however, if the funds are used to pay the trustee’s (i.e., the contractor’s or subcontractor’s) actual expenses directly related to the construction or repair of the improvement, or if the trustee retains the funds and notifies the claimant that the trustee has a reasonable belief that the claimant is not entitled to the funds. The trust IS violated, however, where the funds paid to the contractor or subcontractor are not used to pay ‘actual expenses directly related to the construction or repair of the improvement.’ In that case, the claimant may bring a claim against the contractor or sub for violating the Construction Trust Act, as those funds are treated as funds held in trust for subs and suppliers. [Texas Property Code Sec.162.001, 162.031; Direct Value, L.L.C. v. Stock Bldg. Supply, L.L.C., 388 S.W.3d 386 (Tex.App. 2012)]

-Contractor’s payment bond. [2253.001]

-Retainage. [2253.046]

-Funds due to the contractor, if the original contract amount is less than $25,000. [53.231]

-Where the governmental entity fails to obtain a payment bond though it was required to do so, the claimant may bring a claim against the governmental entity. [2253.027]

-Funds paid to the contractor or subcontractor that are not used to pay ‘actual expenses directly related to the construction or repair of the improvement’ are treated as funds held in trust for subs and suppliers, thus even if the claimant has missed the deadlines for protecting his or her claim against the payment bond, the claimant may bring a claim against the contractor or sub under the Trust Fund Act, Texas Property Code Sec. 162.001 et seq. [Dealers Elec. Supply Co. v. Scoggins Const. Co., Inc., 292 S.W.3d 650 (Tex.,2009)]

TRUSTS FUNDS HELD BY GENERAL OR SUBCONTRACTOR:

Construction payments made to a contractor or sub, or an officer, director or agent of the contractor or sub, under a construction contract for the improvement of specific property in Texas. These funds are to be held in trust for the artisans, laborers, contractors, subs or materialmen who labor or furnish labor or material for the project. The trust is not violated, however, if the funds are used to pay the trustee’s (i.e., the contractor’s or subcontractor’s) actual expenses directly related to the construction or repair of the improvement, or if the trustee retains the funds and notifies the claimant that the trustee has a reasonable belief that the claimant is not entitled to the funds. [162.001, 162.031]

NON-RESIDENTIAL PROJECTS, LIEN CLAIM:

All claimants except the original contractor.

RESIDENTIAL PROJECTS, LIEN CLAIM:

All claimants. (Note: Residential construction is defined as construction or repair of a new or existing residence, consisting of either a single-family house, a duplex, triplex, quadruplex or a unit in a multiunit structure used for residential purposes, where the contractor contracts with one of the owners, and the owner(s) is (are) adult persons and one or more of the owners use or intend to use the structure as a dwelling. [53.001])

The original contractor must give the owner:

(a) The disclosure statement, given BEFORE signing the contract, and

(b) A written list of the name, address and phone number of each sub and supplier the contractor intends to use, UNLESS THE OWNER WAIVES THE RIGHT TO RECEIVE THIS INFORMATION. THIS WAIVER MUST BE IN WRITING, AND MAY BE PART OF THE ORIGINAL CONTRACT OR MAY BE A SEPARATE DOCUMENT. THE WAIVER MUST BE IN 10-POINT BOLD TYPE.  Please contact Levy von Beck and Associates for form information. If the owner doesn’t waive his or her rights to receive this information, then the original contractor must periodically give the owner an updated list. [53.056, 53.103, 53.205, 53.252]

The notice required of all other claimants is discussed in the appropriate sections in this summary, below.

HOMESTEAD:

To obtain a lien on a homestead, the claimant and the owner must execute, and file with the county clerk, a written contract setting forth the terms of the contract BEFORE the material is furnished or the labor is performed. Also, if the owner is married, both spouses must sign the contract. BUT, if the original contractor executes a written contract with the owner, then all subs and suppliers who supply labor or materials for the original contractor are protected by it, and can claim a lien against the homestead. NOTE, HOWEVER, that the homestead is determined as of the date the contract is entered into, thus if the owners live in one home and enter into a contract to build another, the existing home is the homestead at the time the contract is entered into, NOT the new home. [53.254;   McKee v. Wilson, 174 S.W.3d 842 (Tex.App.-Waco Aug 24, 2005)]

BOND: All claimants except the original contractor. [53.205]

RETAINAGE:

All claimants who have an agreement with the original contractor or sub providing for contractual retainage. On a residential project, however, if all other notices are given, no additional notice need be given pertaining to retainage. [53.057, 53.101]

CONTRACT FUNDS:

All claimants. [53.081]

SPECIALLY FABRICATED MATERIALS:

All claimants.

TRUSTS FUNDS HELD BY GENERAL OR SUBCONTRACTOR:

No notice necessary.

BOND:

Every claimant who does not have a direct contract with the general, except a laborer making a claim for wages. Note that a joint check agreement does not constitute a direct contract with the prime contractor. [2253.047; Plains Builders, Inc. v. Steel Source, Inc., 408 S.W.3d 596 (Tex.App. Amarillo, 2013)]

RETAINAGE:

All claimants.

FUNDS DUE CONTRACTOR:

No one.

CLAIM DIRECTLY AGAINST THE GOVERNMENTAL ENTITY:

Same as for Bond claim, above. [2253.027]

TRUSTS FUNDS HELD BY GENERAL OR SUBCONTRACTOR:

No notice necessary.

NON-RESIDENTIAL REAL PROPERTY, LIEN CLAIM:

To owner, and, where claimant’s contract is with a sub or sub-sub, to original contractor. [53.056]

RESIDENTIAL REAL PROPERTY, LIEN CLAIM:

-By original contractor: To owner and, where appropriate, to lender.

-By all other claimants: To owner and original contractor. [53.252]

HOMESTEAD:

Clerk of the county in which the homestead is located. [53.254]

BOND:

To owner, contractor, surety, and, where appropriate, to subcontractor. [53.206]

RETAINAGE:

To owner, general, and if contract is with sub, then to sub as well. [53.057]

CONTRACT FUNDS:

To owner. [53.081]

SPECIALLY FABRICATED MATERIALS:

1. If supplying general, only notice to owner is required. [53.253]
2. If supplying a sub, must give notice to the general and the owner. [53.058]
3. In addition, the claimant must give notice as required in case of claims against property if delivery has been made or if the normal delivery time for the job has passed. [53.058]

4. If claimant’s retainage agreement relates in whole or part to an obligation to furnish specially fabricated materials, claimant may give notice as required in cases of claims against retainage. [53.058]

BOND:

General contractor. [2253.047]

RETAINAGE:

General contractor and surety.

FUNDS DUE THE CONTRACTOR:

Not applicable.

CLAIM DIRECTLY AGAINST THE GOVERNMENTAL ENTITY:

Same as for Bond claim, above. [2253.027]

NON-RESIDENTIAL REAL PROPERTY (LIEN CLAIM) AND CONTRACT FUNDS:

1) IF SUPPLYING THE GENERAL, MUST GIVE:

Notice to owner and general, and it must be mailed not later than the 15^th day of the third month following each month in which all or part of the labor or materials were furnished. If the 15^th is a Sunday or holiday, the notice must be mailed sooner. [53.003, 53.056; Suretec Ins. Co. v. Myrex Industries, 232 S.W.3d 811 (2007) (involved a public works payment bond but presumably the rule would apply here as well)]

2) IF SUPPLYING A SUB, MUST GIVE:

-Notice to general, and it must be mailed not later than the 15^th day of the 2^nd month following each month in which all or part of the labor or materials were furnished, AND

-Where the labor or materials are unpaid, must give notice to owner, and a copy to the general, which must be mailed not later than the 15^th day of the third month following each month in which all or part of the labor or materials were furnished. [53.056]

NOTE THAT if the 15^th is a Sunday or holiday, the notice must be mailed sooner. [Suretec Ins. Co. v. Myrex Industries, 232 S.W.3d 811 (2007) (involved a public works payment bond but presumably the rule would apply here as well)]

RESIDENTIAL REAL PROPERTY, LIEN CLAIM:

Notice by subs or suppliers:

-Notice to owner and original contractor must be mailed not later than the 15^th day of the second month following EACH month in which all or part of the claimant’s labor or materials was furnished. NOTE THAT if the 15^th is a Sunday or holiday, the notice must be mailed sooner. [53.252; Suretec Ins. Co. v. Myrex Industries, 232 S.W.3d 811 (2007) (involved a public works payment bond but presumably the rule would apply here as well)]

Notices by original contractor:

-Disclosure statement and list of subs and suppliers must be received before signing the contract. The waiver of the right to receive information must be part of the contract if given separately, and no time is specified. If no waiver is signed, then the updated list of subs and suppliers must be received no later than the 15^th day after a sub or supplier is added or deleted.  NOTE THAT if the 15^th is a Sunday or holiday, the notice must be received sooner. [Suretec Ins. Co. v. Myrex Industries, 232 S.W.3d 811 (2007) (involved a public works payment bond but presumably the rule would apply here as well)]

HOMESTEAD:

The contract must be executed before furnishing labor or materials, and it must be filed. Recommend filing before furnishing labor and materials. [53.254]

BOND:

1) Within the same time that is required in cases of claims against property.

2) If claimant has direct contract with the original contractor providing for retainage in excess of 10% of contract price, notice must be mailed within the time that is required in cases of claims against retainage. [53.206]

RETAINAGE:

Notice must be mailed not later than the earlier of (a) the 30^th day after the date the claimant’s agreement providing for retainage is completed, terminated, or abandoned; or (b) the 30th day after the date the original contract is terminated or abandoned. [53.057]

CONTRACT FUNDS:

1) IF SUPPLYING THE GENERAL, MUST GIVE:

Notice to owner and general, and it must be mailed not later than the 15^th day of the third month following each month in which all or part of the labor or materials were furnished. [53.056, 53.081] NOTE THAT if the 15^th is a Sunday or holiday, the notice must be mailed sooner. [Suretec Ins. Co. v. Myrex Industries, 232 S.W.3d 811 (2007) (involved a public works payment bond but presumably the rule would apply here as well)]

2) IF SUPPLYING A SUB, MUST GIVE:

-Notice to general, and it must be mailed not later than the 15^th day of the 2^nd month following each month in which all or part of the labor or materials were furnished, AND

-Where the labor or materials are unpaid, notice to owner, and a copy to the general, must be mailed not later than the 15^th day of the third month following each month in which all or part of the labor or materials were furnished. [53.056, 53.081] NOTE THAT if the 15^th is a Sunday or holiday, the notice must be mailed sooner. [53.252; Suretec Ins. Co. v. Myrex Industries, 232 S.W.3d 811 (2007) (involved a public works payment bond but presumably the rule would apply here as well)]

SPECIALLY FABRICATED MATERIALS:

Notice must be mailed not later than the 15^th day of the 2^nd month after the month in which the claimant receives and accepts the order for materials. (If given later, the claimant cannot make a claim for materials fabricated but not delivered.) (NOTE THAT if the 15^th is a Sunday or holiday, the notice must be mailed sooner. [Suretec Ins. Co. v. Myrex Industries, 232 S.W.3d 811 (2007)] (involved a public works payment bond but presumably the rule would apply here as well))

ALSO NOTE that claimant must also give the regular preliminary notice, which must be mailed not later than the 15^th day of the 2^nd month following each month in which all or part of the specially fabricated materials have been delivered. NOTE ALSO that if the claimant’s retainage agreement relates in whole or part to an obligation to furnish specially fabricated materials, claimant may give notice as required in cases of claims against retainage. [53.058, 53.253]

BOND:

Mailed on or before the 15^th day of the 2^nd month after each month in which labor was performed or materials delivered (if there is an unpaid balance for those months). NOTE THAT if the 15^th is a Sunday or holiday, the notice must be mailed sooner. [Suretec Ins. Co. v. Myrex Industries, 232 S.W.3d 811 (2007)] Also, if claimant receives and accepts an order for specially fabricated material, claimant must mail to prime a written notice that the order was received and accepted. This notice must be mailed on or before the 15^th day of the second month after receiving and accepting the order. [2253.047]

RETAINAGE:

Notice must be mailed on or before the 15^th day of the 2^nd month after starting delivery or performance. [2253.046, 2253.047] NOTE THAT if the 15^th is a Sunday or holiday, the notice must be mailed sooner. [Suretec Ins. Co. v. Myrex Industries, 232 S.W.3d 811 (2007)]

FUNDS DUE TO THE CONTRACTOR:

Not applicable.

CLAIM DIRECTLY AGAINST THE GOVERNMENTAL ENTITY:

Same as for Bond claim, above. (2253.027)

NON-RESIDENTIAL REAL PROPERTY, LIEN CLAIM:

-Notice of the unpaid balance

-Copy of the statement or billing in the usual and customary form is sufficient. [53.056]

-To authorize the owner to withhold funds, and to have the claimant’s lien be against more than just the retainage, the notice to the owner must also state that “if the claim remains unpaid, the owner may be personally liable and the owner’s property may be subject to lien unless (1) the owner withholds payments from the contractor for payment of the claim; or (2) the claim is otherwise paid or settled.” If this statement is included in the notice, then the owner must withhold contract funds to cover the debt, and the claimant’s lien against the retainage will also be protected. If the claimant does not include this language, its lien will be limited to the retainage. If the claimant includes this language and the owner fails to withhold funds, then the claimant will have a lien against the owner personally and against real property. [53.056; Schor at §44.02[D]]

RESIDENTIAL REAL PROPERTY, LIEN CLAIM:

1. Notice by subs or suppliers:

-Written notice of the unpaid balance

-If the property is a homestead, the notice must also include the statement “NOTICE: THIS IS NOT A LIEN. THIS IS ONLY AN AFFIDAVIT CLAIMING A LIEN”. Failure to include the statement voids the lien. [Morrell Masonry Supply, Inc. v. Loeb, 349 S.W.3d 664 (Tex.App.–Houston [14 Dist.],2011)]

-Copy of the statement or billing in the usual and customary form is sufficient. [53.252]

-To authorize the owner to withhold funds, the notice to the owner must also state that if the claim remains unpaid, the owner may be personally liable and the owner’s property may be subject to lien unless (1) the owner withholds payments from the contractor for payment of the claim; or (2) the claim is otherwise paid or settled. [53.252, 53.254]

2. Notices by original contractor:

-Disclosure statement. Please contact Levy von Beck & Associates for more information.

-Written list of the name, address and phone number of each sub and supplier the contractor intends to use. If the owner doesn’t waive the right to receive this information, the general must also give the owner an updated list as subs or suppliers are added. Please contact Levy von Beck & Associates for more information.

HOMESTEAD: File a copy of the written contract along with a lien affidavit. The affidavit must also contain the notice “THIS IS NOT A LIEN. THIS IS ONLY AN AFFIDAVIT CLAIMING A LIEN,” with at least the heading printed in at least 10-point boldface type. Failure to include the statement voids the lien. [Morrell Masonry Supply, Inc. v. Loeb, 349 S.W.3d 664 (Tex.App.–Houston [14 Dist.],2011)] NOTE that neither the statute nor the case law indicates whether anyone other than the claimant may sign the affidavit. [53.254].

BOND:

-Same as for claims against property

-If retainage is withheld in excess of 10% of the contract price, must also include the requirements for a claim against retainage. (Note, however, that if a payment bond is provided, retainage is not usually withheld.) [53.206]

RETAINAGE:

-The notice must generally state the existence of a requirement for retainage;

-The name and address of the claimant;
-If the agreement is with a sub, the name and address of the subcontractor.

– Recommend also including a request for notice of termination or abandonment. (This request for notice of termination or abandonment may be sent separately, and if sent MUST be sent by certified or registered mail. It is strongly encouraged that it be sent, either separately or as part of or along with the preliminary notice.) [53.056, 53.057, 53.107]

CONTRACT FUNDS:

Same as for claim against real property, but must also state that if the claim remains unpaid, the owner may be personally liable and the owner’s property may be subjected to a lien unless: (1) the owner withholds payment from the contractor for payment of the claim; or (2) the claim is otherwise paid or settled. [53.056] NOTE: Claimant may also make written demand for payment from withheld funds at any time until the lien deadline. May even include demand on preliminary notice. In any event, general then has 30 days after receiving notice to tell owner he or she will be disputing the claim. If he or she doesn’t, the owner must pay. [53.083]

SPECIALLY FABRICATED ITEMS, FOR BOTH RESIDENTIAL AND NON-RESIDENTIAL PROJECTS:

A statement that the order has been received and accepted, and the price of the order. MUST ALSO GIVE REGULAR PRELIMINARY NOTICE AFTER MATERIALS HAVE BEEN DELIVERED, IF UNPAID. [53.058, 53.253]

BOND:

-Notice that claimant is unpaid for work performed or materials delivered.

-Copy of statement or account sent to subcontractor is sufficient. [2253.047]

SPECIALLY FABRICATED ITEMS (Claim against bond):

Notice that such order has been received and accepted. [2253.047]

RETAINAGE:

Notice that the contract between the claimant and the sub provides for retainage, and the general nature of the retainage. [2253.047]

CLAIM DIRECTLY AGAINST THE GOVERNMENTAL ENTITY:

Same as for Bond claim, above. [2253.027]

ALL TYPES OF REAL PROPERTY, RETAINAGE, OR CONTRACT FUNDS, INCLUDING SPECIALLY FABRICATED MATERIALS:

Registered or certified mail, return receipt requested. [53.056, 53.057, 53.003, 53.252] Note that for contracts entered into on or after 9/1/11, the notice may not be required to be sent by registered or certified mail, unless it includes the request for notice of termination or abandonment, but recommend sending the notice that way in all cases anyway. [53.057] NOTE that verbal notice is not sufficient. [53.056; Moore v. Brenham Ready Mix, Inc., — S.W.3d —-, 2015 WL 1059273 (Ct.App. – Houston 1^st Dist 2015)]

HOMESTEAD:

Filed with the county clerk. [53.252, 53.254]

BOND:

Personal service or registered or certified mail. Apparently proper mailing is all that is required, though it is best to ensure actual delivery. [53.206, 53.003]

BOND OR RETAINAGE:

By registered or certified mail. Mailing (properly addressed, stamped, etc.) is all that the statute requires; there is no requirement of ensuring actual receipt. [2253.047]

FUNDS DUE THE CONTRACTOR:

Not applicable.

CLAIM DIRECTLY AGAINST THE GOVERNMENTAL ENTITY:

Same as for Bond claim, above. [2253.027]

ALL PROJECTS:

All claimants who furnish labor or materials, IF REQUESTED TO SUBMIT ONE, as a condition of payment. [53.085]

RESIDENTIAL PROJECTS:

The original contractor on a residential project, every time he or she submits a request for payment, shall include a disbursement statement, discussed herein. [53.255, 53.256, 53.258]

TRUSTS FUNDS HELD BY GENERAL OR SUBCONTRACTOR:

No notice necessary.

An interim notice is not required.

ALL PROJECTS:

Requested statement:

-Statement that the claimant has paid each of their subcontractors, laborers, or materialmen in full for all labor and materials provided to the claimant for the construction. If, however, the claimant has not paid each of their subcontractors, laborers, or materialmen in full, the claimant shall state in the affidavit the amount owed and the name and, if known, the address and telephone number of each subcontractor, laborer, or materialman to whom the payment is owed.

The affidavit may also include:
(1) A waiver or release of lien rights or payment bond claims by the affiant that is conditioned on the receipt of actual payment or collection of funds when payment is made by check or draft — BUT NOTE that, as of 1/1/12, it appears that the waiver and release are only allowed on single-family dwellings, as set out in the “can lien rights be waived” section below;

(2) A warranty or representation that certain bills or classes of bills will be paid by the affiant from funds paid in reliance on the affidavit; and

(3) An indemnification by the affiant for any loss or expense resulting from false or incorrect information in the affidavit.

NOTE that the person signing this affidavit will be personally liable for any loss or damage resulting from any false or incorrect information in the affidavit, thus no one other than the claimant should sign it. [53.085]

RESIDENTIAL PROJECTS:

Disbursement statement:

-This must include any information agreed to by the owner and the original contractor and must include at least the name and address of each person who subcontracted directly with the original contractor and who the original contractor intends to pay from the requested funds. [53.255, 53.258]

Not applicable.

ALL PROJECTS:

Requested notice: No specific time, but the longer it takes the later payment will be made. [53.085]

RESIDENTIAL PROJECTS:

Disbursement statement: At the same time the contractor presents a request for payment. [53.255, 53.258]

Not applicable.

STATUTORY LIENS:

Every claimant. [53.052, 53.206, 53.083]

CONSTITUTIONAL LIENS ON A RESIDENTIAL HOMESTEAD:

For an original contractor to create a constitutional mechanics’ lien for both new improvements and renovation or repair work performed on a residential homestead, the contract must set forth the terms of the agreement, it must be signed by the husband and wife before the work commenced, and it must be recorded. [53.254; Cavazos v. Munoz, 305 B.R. 661, (S.D.Tex. 2004)]

TRUSTS FUNDS HELD BY GENERAL OR SUBCONTRACTOR:

No notice necessary.

RETAINAGE:

All claimants seeking to have a lien for retainage. [53.057]

Every claimant, however no notice of claim against retainage is required if the amount claimed is part of a prior claim, e.g., against the bond. [53.232, 2253.041, 2253.046]

TRUSTS FUNDS HELD BY GENERAL OR SUBCONTRACTOR:

No notice necessary.

STATUTORY LIENS, ALL PROJECTS:

-Clerk of the county in which the property is located, except that claimant against bond does not need to file claim. [53.052, 53.206]

-Copy to owner and original contractor. [53.055]

For claim against bond, need only give final notice to surety. [53.206]

NOTE: Only owner receives demand to withhold contract funds. [53.083]

CONSTITUTIONAL LIENS ON A RESIDENTIAL HOMESTEAD:

Recorded. [53.254; Cavazos v. Munoz, 305 B.R. 661, (S.D.Tex. 2004)]

RETAINAGE:

-Clerk of the county in which the property is located.

-Copy to owner and original contractor.

[53.057]

BOND:

To the prime contractor and surety. [2253.041]

RETAINAGE:

-General contractor

-Surety (because claimant is making claim for retainage against the bond, so the bond will pay the retainage withheld). [2253.046]

FUNDS DUE CONTRACTOR:

-Public official who has the duty to pay the prime contractor

-General contractor. [53.232]

CLAIM DIRECTLY AGAINST THE GOVERNMENTAL ENTITY:

To the prime contractor and the governmental entity letting the contract. [2253.027]

STATUTORY LIENS, NON-RESIDENTIAL PROJECTS:

-Filed not later than the 15^th day of the 4^th calendar month after the day on which the indebtedness accrues (defined below). HOWEVER, to simultaneously protect claimant’s claim against the retainage, claimant should make sure that the affidavit is filed within 30 days after completion of the project. NOTE that where the claimant is working under a contract that is terminated, the 30-day deadline pertains to the contract under which the claimant is operating, NOT the replacement contract. Page v. Structural Wood Components, Inc. 102 S.W.3d 720 (Sup. 2003). [Schor at §44.02[D]] If a claimant has requested notice or given a notice of unpaid account, the owner is required to notify the claimant that the contract has been terminated and abandoned, and the claimant will need to file its lien accordingly. [53.107] In addition, NOTE THAT if the 15^th is a Sunday or holiday, the notice must be given sooner. [Suretec Ins. Co. v. Myrex Industries, 232 S.W.3d 811 (2007)] NOTE that where claimant attempts to timely file the claim but the county clerk wrongly refuses to accept it, claimant will be allowed to enforce lien, especially where the notice of lien was timely sent to the owner and original contractor. [Ready Cable, Inc. v. RJP Southern Comfort Homes, Inc., 295 S.W.3d 763 (Tex.App.-Austin,2009).]

-Mailed to the owner and original contractor NOT LATER THAN THE FIFTH BUSINESS DAY AFTER THE AFFIDAVIT IS FILED WITH THE CLERK. Case law has held that the notice may be sent to the owner and original contractor before it is filed. [53.052, 53.055, 53.053; Arias v. Brookstone, L.P., 265 S.W.3d 459 (Tex.App.-Houston [1 Dist.], 2007); Truss World, Inc. v. ERJS, Inc., 284 S.W.3d 393 (Tex.App.-Beaumont, 2009)]

RESIDENTIAL PROJECTS, LIEN CLAIM:

The affidavit is to be filed not later than the 15^th day of the third calendar month after the day on which the indebtedness accrues, and a copy mailed to the owner within 5 days of mailing. [53.052] NOTE THAT if the 15^th is a Sunday or holiday, the notice must be given sooner. [Suretec Ins. Co. v. Myrex Industries, 232 S.W.3d 811 (2007)]

RETAINAGE:

The request for notice of termination or abandonment must already have been given to the owner. [53.107] (This notice is discussed above, in the preliminary notice section.]

FILED No later than the earliest of:

(a) The 15^th day of the 4^th calendar month after the last month in which material was furnished (the 3^rd calendar month for residential projects) (if the 15^th is a Saturday, Sunday or holiday, file it BEFORE that date) and not later than 30 days after the work is completed, abandoned by the original contractor, or terminated (whichever is earliest). (This deadline applies if the owner is required to send a notice of termination or abandonment, and fails to timely do so, or if the owner fails to give the claimant information about the date of the original contract, after receiving a written request from a subcontractor claimant); OR

(b) The 40th day after the date stated in an affidavit of completion as the date of completion of the work under the original contract, if the owner sent the claimant notice of an affidavit of completion in the time and manner required (see highlighted note below); OR
(c) The 40th day after the date of termination or abandonment of the original contract, if the owner sent the claimant a notice of such termination or abandonment in the time and manner required (see highlighted note below); OR

(d) The 30th day after the date the owner sent to the claimant to the claimant’s address provided in the notice for contractual retainage, a written notice of demand for the claimant to file the affidavit claiming a lien (see highlighted note immediately below).

Note that, for subsections (b), (c) and (d), if the 40^th day is a Saturday, Sunday or holiday, the notice may apparently be filed on the next business day. It is recommended to avoid this situation, however. [Gov. Code 311.014]

COPY TO THE OWNER AND THE GENERAL CONTRACTOR, sent by certified or registered mail, must be sent not later than the fifth day after the affidavit is filed. [53.052, 53.057, 53.103, 53.107]

NOTE THAT if the 15^th is a Sunday or holiday, the notice must be mailed or filed sooner. [Suretec Ins. Co. v. Myrex Industries, 232 S.W.3d 811 (2007)] NOTE that on non-residential projects where the general contract is terminated or abandoned, the project owner must, within 10 days after the abandonment or termination, give notice of the abandonment or termination to every subcontractor who has given the owner a preliminary notice or a request to be informed of the termination or abandonment of the original contract. This notice must include specific information, including a statement that the subcontractor must file an affidavit of lien within 30 days after the abandonment or termination, or lose its claim against the retainage. If the sub fails to file its affidavit within this thirty-day period, but otherwise complies with the notice requirements, and the owner did not provide the sub with this required notice, then the sub does not lose any rights. [53-107]   NOTE that when contractor’s contract is terminated, and the contractor is replaced with another contractor, a claimant who is a sub or supplier of the original contractor must file its affidavit within 30 days after the ORIGINAL contract is terminated, NOT within 30 days of completion of the replacement contract, otherwise the claimant will lose its lien. [53.103; Page v. Structural Wood Components, Inc., 102 S.W.3d 720 (Sup. 2003)]

CONTRACT FUNDS:

Apparently mailed within the time for filing a lien, or later if the lien has been filed. [53.083]

CONSTITUTIONAL LIENS ON A RESIDENTIAL HOMESTEAD:

No specific time frame; presumably following the time frame for a residential project would suffice. [53.254; Cavazos v. Munoz, 305 B.R. 661, (S.D.Tex. 2004)]

WHEN INDEBTEDNESS ACCRUES:

Indebtedness to the original contractor accrues:

-On the last day of the month in which a written declaration by the original contractor or the owner is received by the other party to the original contract stating that the original contract has been terminated [Lyda Swinerton Builders, Inc. v. Cathay Bank, 409 S.W.3d 221 (Ct.App. Texas 14th Dist.,2013)] ; OR

-On the last day of the month in which the original contract is completed, settled, or abandoned.

Indebtedness to a sub or to supplier of labor or materials to general or sub accrues:

-On the last day of the last month in which labor or materials were supplied by the claimant.

Indebtedness for specially fabricated materials accrues:

-On the last day of the last month in which materials were delivered or would have been required at the jobsite, or

-On the last day of the month of any material breach or termination of the original contract by the owner or contractor, or of the subcontract under which the materials were furnished.

For retainage, claim accrues:

On the EARLIEST of the last day of the month in which all work pursuant to the contract between the owner and contractor is either completed, finally settled, terminated, or abandoned. [53.053]

BOND:

Mailed on or before the 15^th day of the 3^rd month after each month in which labor or materials were furnished (if there is an unpaid balance for that month). [2253.041] NOTE THAT if the 15^th is a Sunday or holiday, the notice must be mailed sooner. [Suretec Ins. Co. v. Myrex Industries, 232 S.W.3d 811 (2007)]

RETAINAGE:

Mailed within 90 days after final completion of the general contract. [2253.046]

FUNDS DUE TO THE CONTRACTOR:

Mailed or received not later than the 15^th day of the second month following each month in which the labor or materials were furnished. It is probably sufficient to mail the notice within that time period, but encourage mailing with enough time to ensure receipt within that time period. [53.234; Schor at §44.03[B]] NOTE THAT if the 15^th is a Sunday or holiday, the notice must be mailed or received sooner. [Suretec Ins. Co. v. Myrex Industries, 232 S.W.3d 811 (2007)]

CLAIM DIRECTLY AGAINST THE GOVERNMENTAL ENTITY:

Same as for Bond claim, above. [2253.027]

ALL NOTICES:

-Filed with the county clerk

-Personal service or sent by registered or certified mail to the owner and the contractor at last known residence or business address within 5 days after filing. Mailing is sufficient; it is not required to ensure acceptance of delivery. [53.052, 53.055, 53.003]

CONTRACT FUNDS:

No specific provision, therefore personal service or registered or certified mail recommended.

CONSTITUTIONAL LIENS ON A RESIDENTIAL HOMESTEAD:

Recorded. [53.254; Cavazos v. Munoz, 305 B.R. 661, (S.D.Tex. 2004)]

Registered or certified mail, return receipt requested. The statute requires mailing; there is no provision requiring receipt. [2253.048, 53.232]

NON-RESIDENTIAL AND RESIDENTIAL REAL PROPERTY, LIEN CLAIM:

(Note that failure to include any of the required information may invalidate the lien. [Milner v. Balcke-Durr, Not Reported in S.W.3d, 2006 WL 2190516 (2006); LTF Real Estate Co., Inc. v. D & D Utility Supply, LLC, Not Reported in S.W.3d, 2013 WL 1183300, (Tex.App.-Hous. (1 Dist.) 2013)])

NOTE ALSO THAT a court has ruled that a claimant contracting directly with a lessee cannot have a constitutional lien against the real property, unless the lessee is demonstrated to be the owner’s agent. Further, if the lien includes a claim for a constitutional lien against the real property, in addition to a statutory lien against the lessor, the entire lien may be held invalid, as an unperfected lien. [Denco CS Corp. v. Body Bar LLC, 445 S.W.3d 863 (Ct.App-Texarkana 2014)].

-A sworn statement of the amount of the claim. Note that a supplier will be required to prove delivery of materials to the job site, but will not be required to prove that the materials were actually incorporated into the project. Fuel and freight surcharges may be recoverable. Delivery of materials can be properly categorized as labor used in the direct prosecution of the work. [Addison Urban Development Partners, LLC v. Alan Ritchey Materials Co., LC, 437 S.W.3d 597 (Ct.App.2014)]

-The name and last known address of the owner or reputed owner

-A general statement of the kind of labor or material furnished, and, for a claimant other than the original contractor, a statement of each month in which the work was done and materials furnished for which payment is requested. (Note that where the fund-trapping language is not included in the preliminary notice, then the claimant’s lien will be ultimately limited to the retainage. If the claimant includes the language and the owner fails to withhold funds, then the claimant will have a lien against the real property. [53.056])

-The name and last known address of the person to whom claimant furnished labor or materials.

-The name and last known address of the original contractor

-A description of the property, legally sufficient for identification.

-Claimant’s name, mailing address, and if different, physical address

-For a claimant other than an original contractor, a statement identifying the date each notice of the claim was sent to the owner, and the method by which the notice was sent. (Note that a court has ruled that the failure to include this information, when the notices of claim were actually given, may not be fatal to the lien. It is best not to rely on that holding, though, and include it the required information in all cases. [Mustang Tractor & Equipment Co. v. Hartford Acc. and Indem. Co., 263 S.W.3d 437 (Tex.App.-Austin,2008)])

-Claimant may attach a copy of any applicable agreement or contract and a copy of each notice sent to the owner.

-NOTE that where claimant specially fabricated materials, if the claimant gives its preliminary notice late, the claimant cannot make a claim for materials fabricated but not delivered. [53.058, 53.253]

-Note that where, at the time claimant enters into its subcontract, owner owns the entire piece of property, but by the time claimant starts delivering materials, the owner has platted the property into several lots, where the materials are delivered for use on many lots, the claimant cannot enforce its entire lien claim against only one lot. It can only be enforced against an individual lot to the proportion the individual improved lot bears to the entire tract. [Moore v. Brenham Ready Mix, Inc., — S.W.3d —-, 2015 WL 1059273 (Ct.App. – Houston 1^st Dist 2015)]

-Affidavit must be signed by claimant or its representative, and must include a jurat; an acknowledgment alone is not sufficient. Per case law, if authorized by the claimant, the claimant’s attorney may sign the affidavit. [53.054; Gill Sav. Ass’n v. International Supply Co., Inc., 759 S.W.2d 697 (App. 5 Dist. 1988), writ denied; and Energy Fund of America, Inc. v. G. E. T. Service Co. (Civ.App. 1980) 610 S.W.2d 833, affirmed in part, reversed in part 616 S.W.2d 184.]

BOND:

Notice as to the amount of claim and the nature of the claim asserted. [53.206]

CONTRACT FUNDS:

That all or part of the claim has accrued under section 53.053, or is past due according to the agreement between the parties [53.083]

CONSTITUTIONAL LIENS ON A RESIDENTIAL HOMESTEAD:

The contract must set forth the terms of the agreement, it must be signed by the husband and wife before the work commenced, and the contract itself is then recorded. [53.254; Cavazos v. Munoz, 305 B.R. 661, (S.D.Tex. 2004)]

BOND:

-A sworn statement of account, stating in substance that the amount claimed is just and correct, and that all just and lawful offsets, payments, and credits known to claimant have been allowed. It must also include any retainage that has not become due under the terms of the claimant’s contract. If a written contract exists, may include a copy of the written agreement or contract and a statement of the completion or the value of partial completion of the agreement. If no written contract exists, If no written contract exists, the notice must include the following:

-Name of person for whom labor or materials were furnished;

-Approximate dates of performance or delivery

-Description of the labor or materials furnished

-Amount due

-Must generally itemize the claim and include copies of documents, invoices, or orders that reasonably identify the labor or materials furnished, the job, and the destination of delivery.

NOTE that neither the statute nor the case law indicates whether anyone other than the claimant is authorized to sign the statement. Per case law, where the statement is sworn to but the notary did not sign and seal the document, it may still be valid, as long as it complies with all other requirements of the notice. It may help if the notary is willing to admit that the notice was sworn but it was the notary’s own clerical error that it wasn’t signed and sealed. [2253.041, 2253.042; United Fire & Cas. Co. v. Boring & Tunneling Co. of America, 321 S.W.3d 24 (Tex.App.-Houston (1 Dist.) 2010]

If no written contract exists:

-Name of person for whom labor or materials were furnished;

-Approximate dates of performance or delivery

-Description of the labor or materials furnished

-Amount due

-Must generally itemize the claim and include copies of documents, invoices, or orders that reasonably identify the labor or materials furnished, the job, and the destination of delivery. [2253.043]

RETAINAGE:

-Contract amount

-Amount paid, if any

-Outstanding balance. [2253.046]

NOTE: If claim is for multiple items of labor or materials to be paid for in one lump sum, notice must also include:

-A description of the labor or materials in a manner that reasonable identifies them

-Name of party to whom labor or materials were furnished

-Approximate date of delivery

-Whether the contract was written or oral

-Amount of contract

-Amount claimed [2253.044]

CONTRACT FUNDS:

-Amount claimed

-Name of party to whom labor or materials were furnished

-Dates and place of delivery or performance

-Description of materials or labor furnished, and the amount due

-A description reasonably sufficient to identify the project for which the labor or materials were furnished

-Claimant’s business address

-Statement under oath that the amount claimed is just and correct and that all payments, lawful offsets, and credits know to the affiant have been allowed. NOTE that neither the statute nor the case law indicates whether anyone other than the claimant may sign the statement. [53.233]

CLAIM DIRECTLY AGAINST THE GOVERNMENTAL ENTITY:

Same as for Bond claim, above. [2253.027]

NON-RESIDENTIAL REAL PROPERTY AND RETAINAGE:

Within the later of two years after the last date the claimant may file its lien, or one year after completion, termination, or abandonment of the original contract. [53.158]

RESIDENTIAL REAL PROPERTY:

Not later than one year after the last date a claimant may file a lien, or one year after completion, termination, or abandonment of the original contract, whichever is LATER. [53.158]

BOND:

If bond is recorded when lien is filed, more than 60 days but less than one year after serving the lien, or within one year after the underlying lien becomes unenforceable. Recommend abiding by the earliest possible date, though apparently either date is acceptable. BUT, if bond itself was provided only after liens were filed, then claimant must sue within two years after the lien was recorded. [53.175, San Antonio Masonry & Tool Supply, Inc. v. Epstein & Sons Intern., Inc., 281 S.W.3d 441 (App. 4 Dist. 2005); 53.208]

CONTRACT FUNDS:

No specific provision.

TRUSTS FUNDS HELD BY GENERAL OR SUBCONTRACTOR:

The statute of limitations is four years, but it is not clear when the time period begins to run, thus recommend calculating it as of the time the payment was owed but not paid, or the last day of claimant’s work, whichever is earlier. [Dealers Elec. Supply Co. v. Scoggins Const. Co., Inc., 292 S.W.3d 650 (Tex., 2009)]

BOND:

More than 60 days after filing the notice of claim, but less than one year after either filing the notice of claim, or completion of the contract, whichever is earlier. [2253.073, 2253.078]

RETAINAGE:

No specific provision.

CONTRACT FUNDS:

Contractor may file a bond with the public official. Suit on such bond must be brought within 6 months after the bond is filed. [53.239]

TRUSTS FUNDS HELD BY GENERAL OR SUBCONTRACTOR:

The statute of limitations if four years, but it is not clear when the time period begins to run, thus recommend calculating it as of the time the payment was owed but not paid, or the last day of claimant’s work, whichever is earlier. [Dealers Elec. Supply Co. v. Scoggins Const. Co., Inc., 292 S.W.3d 650 (Tex.,2009)]