Note: This article originally appeared in October, 2012 and was updated with new information in October, 2017.
Texas is well known for having some of the most confusing and complicated lien and notice requirements of any state: 2nd month notices, 3rd month notices, filing by the 15th day of the 2nd or 3rd month after the last month in which the claimant last furnished labor and/or materials, and a partridge in a pear tree. Where does it stop?
Unfortunately, mechanics liens in Texas only get more complicated when the property to be improved is a homestead. There are additional steps required in addition to the normal requirements imposed by Texas law. Further, these additional requirements must be met prior to performing work on the property – so if a potential lien claimant follows the regular notice and lien requirements and the property on which the lien is to be claimed is a homestead they can still end up with no lien rights.
In order to fix a Texas mechanics lien on a homestead, the person who is to furnish labor and/or material and the owner must execute a written contract setting forth the terms of their agreement. There are multiple requirements for this executed contract, however:
- 1) The contract must be executed before any labor or material is furnished
- 2) If the owner is married, the contract must be signed by both spouses
- 3) The contract must be filed with the county clerk of the county in which the homestead is located
The requirement that the contract be signed by both spouses (if the owner is married) holds even if the property is in the name of only one spouse. If the property owner is married and the contract is not signed by both parties, no lien can attach. This puts the potential lien claimant in a position where he must explicitly ask or otherwise determine if the property owner with whom he is contracting is married in order to meet the duty imposed by Texas lien law. Awkward!
There is no explicit deadline mentioned regarding when the contract must be filed with the county clerk. But best practice may be to file the contract prior to the commencement of work, out of an abundance of caution.
Also special language is required to be included on the affidavit of lien (for more information on this, see “The Practical Guide” linked to above), and a special statement must be attached to the claimant’s notice to owner and original contractor.
The Texas lien law is exceedingly complex – all potential lien claimants should take great care in complying with the myriad nuances of the law.
Related Article: 5 Mistakes You Can’t Afford to Make with Texas Liens and Notices