Written by attorney Brian W. Erikson

Hot do I file a mechanic's lien in Texas?

The procedure for filing a mechanic's lien in Texas depends on the nature of the project (whether it is residential, homestead or commercial), and who the owner may be (private or public). The procedure also depends on whether you contracted directly with the original contractor (the contractor who contracted with the owner), or whether you contracted with a subcontractor. If you contracted directly with the original contractor, you have to provide the owner notice of non-payment by the 15th day of the third month after the month in which you performed the work for which you have not been paid. This notice is called a funds trapping notice, and advises the owner to withhold the amount of your claim from the original contractor. However, if the owner has already paid the original contractor for your work, you may be out of luck. For a privately owned project (not one owned by a public or governmental entity), the owner is required to withhold 10% retainage from the original contractor until 30 days after the project is finally completed. So, if you have not been paid, and retainage was withheld or supposed to be withheld under your subcontract, you can advise the owner that you have a claim to the 10% retainage. You can also file a mechanic's lien affidavit to lay claim to the 10% retainage. The lien affidavit must be filed no later than the 15th day of the fourth month after the completion of the project. But beware, the owner need only withhold the retainage for 30 days after the project is finally complete. If the owner has paid out the contract price appropriately, neither the owner nor its property can be liable for the original contractor's non-payment. If you file a mechanic's lien, you must provide notice of filing to the owner (and original contractor) within five days of filing. All notices must be sent by certified mail, return receipt requested. If the property is homestead, the original contractor must have properly a mechanic's lien contract with the homeowner(s). If the property is residential, the notice and lien filing periods are shortened by one month. The filing of a mechanic's lien can be extremely valuable in ensuring payment. But it also can be risky if not done properly. I suggest that you review my web site, The Construction Report, which focuses on mechanic's lien and surety bond claims, among other construction issues. The Construction Report web site has how to papers on filing and analyzing mechanic's lien claims, lien and notice claim forms, deadline charts, the current and back issues of The Construction Report newsletter, and other matters of issue for construction professionals. The web address for The Construction Report is: As you can see, the filing of mechanic's liens is not simple. If you do not perfect the lien properly, you can be sued for damages and compelled to remove the lien. Good luck.

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