Liens on Homesteads

To fix a lien on a homestead, the person who is to furnish material or perform labor and the owner must execute a written contract setting forth the terms of the agreement. Whether the property is the owner’s homestead is determined at the time the contract is formed, not at the time the lien is claimed against the property.

If the property is a homestead, the written contract must be executed before the material is furnished or the labor is performed. If the mechanic’s lien contract recites that this condition was met, the parties will be estopped to deny the condition as to any person who justifiably relied on the recital. If the owner is married, the contract must be signed by both spouses. When a married man, however, affirmatively represents that he is single in the contract, the assertion of the wife’s homestead interest to invalidate the lien presents a disputed fact issue. Thus, failure to obtain a factual determination of the issue waives any homestead rights. If the contract is made by an original contractor, the contract inures to the benefit of all persons who labor or furnish material for the original contractor. The contract must be filed with the county clerk of the county in which the homestead is located. The county clerk must record the contract in records kept for that purpose.

An affidavit for a lien that relates to a homestead must contain the following notice conspicuously printed, stamped, or typed in a size equal to at least 10-point boldface or the computer equivalent, at the top of the page [Tex. Prop. Code ? 53.254(f)]:


For the lien on a homestead to be valid, the notice required to be given to the owner under Section 53.252 must include or have attached the following statement:

If a subcontractor or supplier who furnishes materials or performs labor for construction of improvements on your property is not paid, your property may be subject to a lien for the unpaid amount if:

(1) after receiving notice of the unpaid claim from the claimant, you fail to withhold payment to your contractor that is sufficient to cover the unpaid claim until the dispute is resolved; or

(2) during construction and for 30 days after completion of construction, you fail to retain 10 percent of the contract price or 10 percent of the value of the work performed by your contractor.

If you have complied with the law regarding the 10 percent retainage and you have withheld payment to the contractor sufficient to cover any written notice of claim and have paid that amount, if any, to the claimant, any lien claim filed on your property by a subcontractor or supplier, other than a person who contracted directly with you, will not be a valid lien on your property. In addition, except for the required 10 percent retainage, you are not liable to a subcontractor or supplier for any amount paid to your contractor before you received written notice of the claim.

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