Page 47 - State Law Summary of Mechanic's Lien Law

Texas TX

What is the statutory authority? When does a mechanic’s lien have to be filed for claimant to maintain
V.T.C.A., Property Code § 53.001 et. seq. (Statutory Mechanic’s Lien). lien rights?
Original contractor claiming lien: (1) for nonresidential construction projects, must
(The Texas Constitution also provides for a constitutional mechanic’s lien. See file an affidavit not later than the 15th day of the fourth month after the month in
Tex. Const. art XVI, §37. Mechanics, artisans and material men who have a direct which the original contractor’s work was completed, terminated, or abandoned;
contractual relationship with a property owner (an original contractor) are and (2) for residential projects, must file an affidavit not later than the 15th day
entitled to a lien under the Texas Constitution on the improvements constructed or of the third month after the month in which the original contractor’s work was
repaired by that person or the materials furnished for the project. A constitutional completed, terminated, or abandoned .
mechanic’s lien does not extend to other types of work that are covered under Ch.
53. Subcontractors and suppliers not contracting directly with the owner are not Claimant other than an original contractor claiming a lien: (1) for nonresidential
entitled to a constitutional lien and must rely on the statutory scheme. Except as construction projects, must file an affidavit not later than the 15th day of the fourth
noted herein, this summary focuses solely on statutory mechanic’s liens under month after the later of (i) the month the claimant last provided labor or materials;
Ch. 53. For more guidance on constitutional mechanic’s lien, seek advice of local or (ii) the month the claimant would normally have been required to deliver the
counsel in your area.). last of specially fabricated materials that have not been actually delivered; and (2)
for residential construction projects, must file an affidavit not later than 15th day
What is the Attachment Date of the Mechanic’s Lien? of the third month after the later of (i) the month the claimant last provided labor
Lien attaches to real property at the earliest of: or materials; or (ii) the month the claimant would normally have been required
to deliver the last of specially fabricated materials that have not been actually
i. commencement of construction or delivery of materials to the property that delivered.
are visible from an inspection of the property.
See V.T.C.A., Property Code § 53.052 for specifics.
ii. The date of commencement stated in an affidavit of commencement jointly
filed by the owner and original contractor. What is the period of enforcement of a filed mechanic’s lien?
Suit must be brought to foreclose the lien not later than the first anniversary of
Tex. Prop. Code Ann. § 53.124(a), (b), and (d). the last day a claimant may file the lien affidavit under § 53.052. The limitations
period may be extended to not later than the second anniversary of the date
What constitutes visible commencement of construction? the claimant filed the lien affidavit under § 53.052 if, before the expiration of the
The Supreme Court held in Diversified Mortgage Investors v. Lloyd D. Blaylock initial limitations period, the claimant enters into a written agreement with the
Gen. Contr. Inc., 576 S.W.2d 794, 801 (Tex. 1978), that under the “commencement then-current record owner of the property to extend the limitations period. The
of construction” requirement of Art. 5459, the inception of a Mechanic’s and agreement must be recorded with the clerk of the same county where the lien
Materialman’s lien occurs when the “activity commenced” is actually conducted was recorded and is considered to be notice of the extension to any subsequent
on the land, is visible on the land, and when it constitutes an activity that is either purchaser. See V.T.C.A., Property Code § 53.158 for more specifics.
defined as an “improvement” under the Texas statute or involves the excavation
for or laying of a foundation for a building. The word “improvement” specifically Is there a procedure to bond over the mechanic’s lien(s)?
includes the “clearing, grubbing, ... of land.” If a lien, other than a lien granted by the owner in a written contract, is fixed or is
attempted to be fixed by a recorded instrument under this chapter, any person
What is the priority of the insured construction mortgage/ may file a bond to indemnify against the lien.
deed of trust?
A lien, encumbrance or mortgage recorded before visible commencement of The bond shall be filed with the county clerk of the county in which the property
construction or delivery of materials and before the date of commencement stated subject to the lien is located.
in an affidavit of commencement jointly filed by the owner and original contractor
has priority over mechanic’s liens. Tex. Prop. Code Ann. § 53.123(b)). A mechanic’s lien claim against an owner’s property is discharged after: (1) a bond
that complies with § 53.172 is filed; (2) the notice of the bond is issued as provided
If priority of the insured mortgage/deed of trust is lost, is there a by § 53.173; and (3) the bond and notice are recorded as provided by § 53.174.
statutory procedure to regain priority?
No. V.T.C.A., Property Code § 53.171.
Are the ALTA 32/33 Series Endorsements available for the Loan Policy?
No.

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