Texas Lien Laws for 2013 - Pitfalls to Avoid
Texas lien laws remain some of the most complex in the nation. With strict filing and notice deadlines, owners and contractors alike are often left wondering whether a lien is actually valid. The law becomes even murkier when one begins to travel down the path of liens on residences and homesteads, finally ending in the newly enacted retainage statutes. Given these complexities, it is extremely important to discuss your lien issues with an experienced attorney. As such, this article is meant only as an introduction into the most common pitfalls of the Texas liens laws, and is not meant to supplement the advice of any of our attorneys. If you do find yourself faced with a lien situation, please contact our office immediately.
The Notice Requirements
The Texas Property Code fully delineates the requirements of filing and perfecting a lien on commercial, residential, and homestead property. More specifically, the Code requires that notice be given to certain parties within very strict timelines. The code further delineates these notice requirements based upon whether the entity asserting a lien claim is the general contractor, a first-tier subcontractor, or a second-tier contractor or lower. It is especially important to remember that notice must be given to each and every entity “upstream” from the entity asserting the claim. For example, a first-tier subcontractor must give notice to both the general contractor as well as the owner. Failure to give notice is fatal to asserting lien rights.
The Lien Affidavit
Similar to the notice requirements, the lien affidavit, and by virtue the requisite notice thereof, is governed by the Texas Property Code. Both the language required to perfect the various liens, as well as, the notice deadlines are found in Chapter 53. Specifically as applied to residential and homestead property, failure to adhere to the statutory language will invalidate a lien.
Failure to Properly Perfect a Lien
Asserting lien rights when one has failed to properly perfect a lien can be detrimental. Under the Texas Property Code a court may award attorneys’ fees to the party seeking to invalidate an improper lien.
Even a brief discussion of liens often causes discomfort in the average construction professional given the strict requirements. While seeking qualified counsel to help you navigate the perils of the Texas Property Code may seem daunting at first, when compared to the costs associated with failing to comply with the Texas lien laws, the costs is negligible.