Differences Between Statutory and Constitutional Liens in Texas

Statutory and Constitutional Liens in Texas DW Law

Statutory Lien

Texas Property Code Chapter 53 defines who is entitled to a lien for labor and materials improving properties like homes, buildings, fixtures, improvements, and certain other lands. These people include:

  • laborers,
  • materials fabricators,
  • suppliers,
  • architects,
  • engineers,
  • surveyors,
  • landscapers, and
  • demolition services.

Even if you’re in one of these categories, however, filing a lien claim properly under Chapter 53 isn’t simple because the filing must meet several requirements. You must file an affidavit with the county clerk where the property is located within 3 months and 15 days after the service debt accrued. The affidavit must include details identifying the claimant, property owner, property, and labor, services, and/or materials that support the lien affidavit. Further, notice must be mailed to the owner within five days, and if the claimant is a subcontractor, he or she must also send notice to the original contractor.

Removal of Statutory Lien

An owner can often seek to remove a lien through a summary motion if filing requirements aren’t met, meaning the lien was invalid or unenforceable. But there are limitations on the summary motion because it can state only that:

  1. notice of claim was not furnished to the owner or original contractor as required by Section 53.056, 53.057, 53.058, 53.252, or 53.253;
  2. an affidavit claiming a lien failed to comply with Section 53.054 or was not filed as required by Section 53.052;
  3. notice of the filed affidavit was not furnished to the owner or original contractor as required by Section 53.055;
  4. the deadlines for perfecting a lien claim for retainage under this chapter have expired and the owner complied with the requirements of Section 53.101 and paid the retainage and all other funds owed to the original contractor before:
    • the claimant perfected the lien claim; and
    • the owner received a notice of the claim as required by this chapter;
  5. all funds subject to the notice of a claim to the owner and a notice regarding the retainage have been deposited in the registry of the court and the owner has no additional liability to the claimant;
  6. when the lien affidavit was filed on homestead property:
    • no contract was executed or filed as required by Section 53.254;
    • the affidavit claiming a lien failed to contain the notice as required by Section 53.254; or
    • the notice of the claim failed to include the statement required by Section 53.254; and
  7. the claimant executed a valid and enforceable waiver or release of the claim or lien claimed in the affidavit.

Keep in mind, however, that even if it’s shown to a court that a statutory lien fails to meet these requirements, the claimant may argue that the lien survives because it meets the requirements of a constitutional lien, explained below. Terraces at Cedar Hill, LLC, v. Gartex Masonry & Supply, Inc., 2011 Tex. App. LEXIS 2114 (Tex. App.—Dallas 2011, pet. denied).

Constitutional Liens in Texas

The Property Code isn’t the only way to claim liens. Article XVI, Section 37 of the Texas Constitution reads:

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 therefore; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.

People using this provision are not held to the statutory requirements (such as notice requirements) of Chapter 53 because their lien rights come directly from the Texas Constitution and cannot be curtailed by statute. Inherent in this structure is the assumption that “original contractors” work directly with property owners, thus eliminating the need for written notice of a constitutional lien. Thus, it could be argued that Texas’s constitutional lien provision provides property owners less protection from invalid liens than the laws of other states. Only seven other states’ constitutions reference mechanic’s liens, and only Texas’s is self-executing and separate from statutes.

At the same time, however, the category of people who may use this provision is much more limited—only “original contractors” can validly claim constitutional liens. An “original contractor” is “a person contracting with an owner either directly or through the owner’s agent.” This means that subcontractors are almost always prohibited from claiming constitutional liens. Unfortunately, this also means that there is usually no quick statutory method, such as the “summary motion” for removing an invalid constitutional lien, since the claimant didn’t have to meet § 53.160. Fortunately, an owner fighting against this kind of lien isn’t limited only to proving it’s baseless. The owner can also pursue a fraudulent lien claim under Chapter 12 of the Civil Practice and Remedies Code, which will be discussed in another blog posting.

Athena Ponce and the attorneys at De Leon & Washburn, P.C. are available to assist clients with real estate and construction issues. For more information regarding the firm’s practice areas, please visit our Practice Areas page, and please feel free to contact the attorneys at any time.

© De Leon & Washburn, P.C. This article is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between De Leon & Washburn, P.C. and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Articles are not continuously updated, and D&W makes no warranty or representation regarding accuracy or completeness.