One of the biggest risks for those who work in residential or commercial construction is the risk of not getting paid for their work and/or supplies. Fortunately, Texas provides a mechanic’s lien, which offers a means for being reimbursed when owners refuse to pay for work and/or supplies. The mechanic’s lien offers relief as long as anyone filing a lien follows the laws as defined in Chapter 53 of the Texas Property Code.
Eligibility
To be eligible to file a mechanic’s lien, the claimant must be a contractor or subcontractor who has worked on or provided supplies for construction. A general contractor may also be eligible for a constitutional mechanic's lien. Anyone who has created specialized material for construction is also eligible for a mechanic’s lien. Design professionals who provide ideas and suggestions specific to construction are also qualified to file a mechanic’s lien.
Elements of a Mechanic’s Lien
Crucial to filing a successful mechanics lien are these three elements:
- to provide a timely and proper written notice of the claim, also known as a trapping notice (applicable to subcontractors),
- to provide a timely and proper mechanic’s lien affidavit, which offers evidence of a lien claimed on the property involved,
- to provide a timely and proper notice that the party has filed the lien affidavit.
The trapping notice, so named because it “traps funds” for the person filing the claim, is also known as an “intent to lien” notice. It is a prerequisite for filing a mechanic’s lien. All claimants except the general contractor must file a trapping notice. Tex. Prop. Code Ann. § 53.056. It must follow the format outlined in Tex. Prop. Code Ann. § 53.056(a-2), and the trapping notice must be delivered in person or by some method that provides proof of receipt.
Deadlines of a Mechanic’s Lien
After filing in the county where the construction project is located, the lien claimant must give notice of the filing to the owner and the original contractor within five days of filing the lien. Whether it is for a commercial or residential project, the notice must be in writing as opposed to oral delivery. Tex. Prop. Code Ann. § 53.055(a-b). Deadlines vary according to what type of contractor has filed the claim and what type of project is involved. In general, the deadline for commercial jobs is the 15th day of the 4th month.
A mechanic’s lien is a powerful tool for contractors, subcontractors, and suppliers. However, filing properly and within the deadline is critical. Given the complicated timelines and requirements, seeking the advice of an attorney is the best way to avoid missteps that might invalidate the claimant’s right to payment via a mechanic’s lien.
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