Perfecting the lien is the most difficult task facing a contractor.
A lot of clients stumble at this stage, and by the time they come to see us it is often too late to do anything with a lien. But we offer this information to encourage our clients and potential clients to act early, and appropriately, to protect their lien rights.
The Affidavit
A mechanic’s lien is perfected by filing a sworn affidavit, called a mechanic’s lien affidavit, with the county clerk in the county where the property is located. The affidavit must be filed before the applicable deadline expires.
The affidavit must be signed by the claimant or by an authorized agent of the claimant and it must be notarized. Filing an unsigned or unnotarized affidavit does not perfect a lien.
The county where the affidavit is filed matters. Filing in the wrong county renders the lien unenforceable. The affidavit must be filed in the county where the property is physically located, regardless of where the contractor or owner is based. For Dallas-Fort Worth area projects, this typically means Dallas County, Tarrant County, Collin County, or Denton County.
Accrual Date
The accrual date is the date from which the lien filing deadline is calculated. Getting the accrual date wrong is the single most frequent reason a lien ends up filed too late.
For an original contractor, the accrual date is the last date on which the claimant furnished labor or materials, or the date the original contract was completed, terminated, or abandoned, whichever is earlier.
For a subcontractor or supplier, the accrual date is the last date on which the claimant furnished labor or materials.
The accrual date is not necessarily the date the overall construction project was completed. If you performed your scope of work and left the project months before the project was finished by others, your accrual date is the last day you were on the job. Keep detailed written records of the last day you furnished labor or materials.
Contents of the Affidavit
A valid mechanic’s lien affidavit must contain: a sworn statement of the amount of the claim; the name and last known address of the owner or reputed owner of the property; a legal description of the property sufficient to identify it (a street address alone is not sufficient; use the legal description from the county’s property records); the name and address of the claimant; the name of the original contractor if the claimant is a subcontractor or supplier; and a description of the work performed or materials furnished.
Errors in any of these required elements can invalidate the lien. The most common errors are: using an incorrect or abbreviated legal description; misstating the owner’s legal name; and failing to identify the original contractor when filing as a subcontractor.
The reputed owner is the person whom the claimant reasonably believes owns the property at the time of filing, based on the public records of the county Central Appraisal District and the county deed records. Using the reputed owner’s name, even if the true owner is different, satisfies the statute if the claimant acted in good faith based on available public records. See our Central Appraisal Districts page for links to each county’s property records.
Required Notice
Subcontractors and suppliers who do not have a direct contract with the property owner must provide pre-lien notice to both the owner and the original contractor before filing a lien affidavit. This notice is a prerequisite to lien rights; without it, the lien affidavit is not effective against the owner.
For commercial projects, a subcontractor or supplier must send notice of its unpaid claims no later than the 15th day of the third month following each month in which the claimant furnished labor or materials for which payment has not been received.
The notice must be sent by certified mail or by any other method of delivery that provides written evidence of delivery. Oral notice is not sufficient.
Failure to send this notice on time does not eliminate all remedies. The claimant may still have a breach of contract claim, but it does eliminate the ability to claim a lien against the property.
Additional Notices
Funds Trapping Notice: A subcontractor may send a written notice to the property owner demanding that the owner withhold from future payments to the general contractor an amount sufficient to satisfy the subcontractor’s unpaid claim. Once the owner receives this notice, the owner must retain those funds until the claim is resolved. Sending a funds trapping notice promptly, before the owner makes the final payment to the GC, is often the most powerful immediate step an unpaid subcontractor can take. See our Funds Trapping page for a full explanation.
Contractual Retainage Notice: A claimant who furnished labor or materials under a written contract that provides for retainage must comply with separate notice requirements in order to assert a claim against that retainage.
All notices must be sent by certified mail, return receipt requested, or by another method that provides written delivery confirmation. Keep copies of all notices and all delivery confirmations; these are evidence that the notice was properly sent and received.
Frequently Asked Questions
What happens if I miss the lien filing deadline?
Your mechanic's lien rights are permanently extinguished. Once that deadline passes, no court can bring them back. You may still have a breach of contract claim against the party who owes you money, but you lose the powerful leverage of a property lien. This is why acting early is so critical.
Is a street address enough for a Texas lien affidavit?
No. Texas law requires the legal description of the property, the formal parcel identification as recorded in the county property records. Using only a street address can invalidate the lien. Use the Central Appraisal District website for the county where the property is located to find the correct legal description.
Can I file a lien if I never had a written contract?
Yes, for most commercial projects. Texas law does not require a written contract for lien rights to exist, and an oral agreement can support one. Homestead property is the exception. Under Section 53.254 and Article XVI, Section 50 of the Texas Constitution, a lien on a homestead requires a written contract executed before any labor or materials are furnished, signed by both spouses if the owner is married, and filed with the county clerk. Without that contract there is no valid homestead lien, however clear the oral agreement was. In every case a written contract makes your claim easier to prove. If your agreement was verbal, preserve every invoice, delivery ticket, text message, and email you have.
Do I have to send pre-lien notices every month?
If you are a subcontractor or supplier, yes, you must send a pre-lien notice for each month in which you are owed money and the money has not been received. Missing a monthly notice for a particular period can eliminate your lien rights for that period, even if you sent notices for other months.
Does my lien affidavit have to be notarized to be valid?
Yes. The affidavit must be signed by you or by an authorized agent, and it must be notarized. Filing an unsigned or unnotarized affidavit does not perfect a lien. It is also a sworn statement of the amount you claim, so the figures and the property information must be accurate before you sign.
If I am a subcontractor, do I have to name the general contractor in my lien affidavit?
Yes. When you file as a subcontractor or supplier, the affidavit must identify the name of the original contractor you worked under. Failing to identify the original contractor is one of the errors that can invalidate the lien. The affidavit must also state the amount of the claim, the owner or reputed owner and last known address, the legal description of the property, your own name and address, and a description of the work or materials you furnished.