Those who work on and/or supply materials for construction are in great demand in Texas. To protect material suppliers and laborers, Texas allows for mechanic's lien filings against real estate. Filing such liens increases the chances of payment to contractors or subcontractors by encumbering the property on which they’ve provided labor and/or materials.
According to Texas Property Code Section 53.054, the contents of an affidavit include:
(a) The affidavit must be signed by the person claiming the lien or by another person on the claimant’s behalf and must contain substantially:
(1) a sworn statement of the amount of the claim;
(2) the name and last known address of the owner or reputed owner;
(3) a general statement of the kind of work done and materials furnished by the claimant and, for a claimant other than an original contractor, a statement of each month in which the work was done and materials furnished for which payment is requested;
(4) the name and last known address of the person by whom the claimant was employed or to whom the claimant furnished the materials or labor;
(5) the name and last known address of the original contractor;
(6) a description, legally sufficient for identification, of the property sought to be charged with the lien;
(7) the claimant’s name, mailing address, and, if different, physical address; and
(8) 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.
(b) The claimant may attach to the affidavit a copy of any applicable written agreement or contract and a copy of each notice sent to the owner.
(c) The affidavit is not required to set forth individual items of work done or material furnished or specially fabricated. The affidavit may use any abbreviations or symbols customary in the trade.
Other Important Considerations
Section 53.054 requires that the affidavit may be signed by the claimant or “another person on the claimant’s behalf.” However, while some cases have acknowledged the authority of an attorney to sign the mechanic’s lien affidavit for the client, doing so may have broader implications for the attorney. Gill Sav. Ass'n v. International Supply Co., Inc., 759 S.W.2d 697, 699–700 (Tex. App.—Dallas 1988), writ denied, (Jan. 11, 1989).
Section 53.054 also requires a sworn statement of the amount of the claim. That sworn statement must be more than an acknowledgement; it must be in the form of a jurat, a particular type of statement which begins with the phrase, “Subscribed and sworn before me…” Without the jurat, the mechanic’s lien is invalid. Sugarland Business Center, Ltd. v. Norman, 624 S.W.2d 639, 641 (Tex. App.—Houston [14th Dist.] 1981); Crockett v. Sampson, 439 S.W.2d 355, 359–360 (Tex. Civ. App.—Austin 1969).
While Section 54.054(c) says that “the affidavit may use any abbreviations or symbols customary in the trade,” omitting any opportunity for confusion by avoiding abbreviations or symbols is wise, especially since the audience for the affidavit is a judge and/or jury as opposed to a construction expert. Haden Co., Inc. v. Mixers, Inc., 667 S.W.2d 316, 317–318 (Tex. App.—Dallas 1984). Itemization of work and materials also is not required, but detailed descriptions of work and materials for each month of work not only provide clarity to judge and/or jury but also prove that the lien has been timely filed.
Clarity and accuracy are also important for the physical description of the property. A title report or the latest deed on the property, which usually includes a lot and block number or metes and bounds description, is preferable. For contact information of owners, claimants, specific accurate addresses are necessary. Including too much information, such as both a post office box and a street address, is preferable to nullifying the affidavit by missing information. Trapping notices must also be documented accurately, or the mechanic’s lien might become void. Documentation of the date for each notice of the claim, as well as where it was sent, to whom it was sent, and the method of traceable delivery must be accurate if the lien is to move forward.
Both the mechanic’s lien and the constitutional mechanic's lien are great assets, helping ensure that claimants receive the money they have earned from property owners. The statute for a mechanic's lien is not always clear and concise, however, which is why seeking the advice and guidance of an experienced real estate attorney is the best course of action when dealing with a mechanic’s lien.
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