The state of Texas provides vast protections to homesteads, including protections from liens filed by contractors and subcontractors. So, while it is possible for a contractor or subcontractor to file a valid mechanic's and material man's lien (also known as a contractor’s lien) on homestead property in Texas, the correct legal process for doing so is cumbersome and rarely followed by contractors.
Although the protections given to homesteads are based in the Texas Constitution, the Texas legislature has also created protections, which can be found in the Texas Property Code. In determining which requirements a particular contractor must follow, it is important to ask whether a homeowner hired the contractor to build new improvements on the owner’s property or to repair or renovate existing improvements. An example of building new improvements would be adding a new room or replacing flooring, an example of repairing or renovating additional improvements includes painting a room and refinishing or patching a floor. The law provides more complex lien requirements for contractors performing repairs and/or renovations.
The first step all contractors must follow is to get a signed contract with the owner(s) before the contractor begins work. If the owners are married, the contract must contain the signatures of both spouses. In addition to these basic requirements, a contractor who is repairing or remodeling existing improvements must provide notice in their contract that the owner has three days from signing the contract to cancel it without penalty. Furthermore, the contract must be signed within five days of the owner applying for credit to finance the work at the office of either the lender financing the work or at the office of an attorney's office or title company.
The second step required of all contractors who want to assert a lien on a homestead property is that the signed contract must be filed in the real property records of the county in which the property is located. This generally requires a contractor to retain an original copy of the signed contract. Note that there is no deadline for the filing of the contract in the property records: a contractor could presumably wait to do so until it wishes to assert its lien. Additionally, this requirement extends to any subcontractors hired by an original contractor (contractor hired directly by the owner). If an original contractor utilizes subcontractors to complete a project, those subcontractors cannot file a valid lien unless the original contractor has filed its contract in the property records. It is always a good idea, especially during and following any improvements, for homeowners to periodically review property records to ensure no liens have been filed against their property. With the exception of some small counties in Texas, this can generally be done using the owner name(s) and/or property description via the website of the county clerk for the county where the property is located.
If you are a contractor who would like to know more about how to file mechanic’s and materialman’s lien against homesteads, or are a homeowner who has had a contractor file a lien on your home, contact us for a free consultation. Based in Houston, TX, Allen Killgore & White, PC is a full-service law firm that offers expert commercial and construction legal representation to a variety of business and individual clients. Our experienced attorneys are committed to providing the best client service at all times, focusing on unique, tailored strategies and solutions for your specific legal matter.