Not surprisingly given the similarity in their titles, the constitutional mechanic’s lien has much in common with statutory mechanic’s lien in Texas. Both safeguard contractors who work for and/or supply materials to a construction site by helping ensure payment through a lien against the property for delinquent payments.
One important difference between the two is that the constitutional mechanic’s lien is included in the Texas Constitution. According to Article XVI, § 37 of the Texas Constitution, “mechanics, artisans and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.” Texas is one of only seven states that actually includes such a provision in their constitution.
The requirements of a statutory mechanic’s lien differ from the constitutional mechanic’s lien in Texas in other important ways as well. The statutory mechanic’s lien is available to both general contractors and subcontractors, for example, while the constitutional mechanic’s lien is available only to people contracting directly with the property owner(s). A subcontractor is therefore not eligible for a constitutional mechanic’s lien. Another important distinction is that the constitutional lien is available only for improvements and repairs made directly “upon the buildings and articles.” For that reason, payment for work by design professionals or materials created specifically for but not installed on a project are best handled by a Chapter 53 mechanic’s lien instead.
The constitutional lien is also self-executing, meaning that unlike a mechanic’s lien, the lien is automatic and requires no filing or notice to put the lien into effect. Despite the fact that filing a constitutional lien is not required, filing is still a good idea because the lien does not continue if the property is sold to a bona fide purchaser. An affidavit claiming the constitutional lien notifies a potential purchaser and other creditors of the constitutional lien.
The constitutional lien is a tool for contractors at risk of not being paid for their work, but real estate attorneys attest to the fact that this particular type of lien has created a great deal of confusion. Interpreting the complex procedures and applications of the constitutional lien requires the guidance of an experienced real estate attorney to ensure the best possible outcome for all involved.
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