The Affidavit

Perfecting a lien is a vital step in gaining almost all of the protection available under the laws governing mechanic’s and materialmen’s liens. This is true even though the ultimate relief sought may not involve a lien on real property. A lien is not perfected unless the filing and notice requirements set out in the Property Code are followed.

The person desiring to perfect a lien must generally file an affidavit with the county clerk of the county in which the property is located not later than the 15th day of the fourth calendar month after the day on which the indebtedness accrues. However, a person claiming a lien arising from a residential construction project must file an affidavit with the county clerk of the county in which the property is located not later than the 15th day of the third calendar month after the day on which the indebtedness accrues.

The person filing the affidavit must comply with the requirements to notify the owner or reputed owner. If the person making the filing is not the general contractor, a copy must also be sent to the general contractor.

The Property Code provisions relating to the affidavit and notice of the affidavit make reference to “owner or reputed owner.” Contractors are not required to search property records to determine certainty of ownership at any time. Instead, the contractor (or subcontractor) is entitled to rely on representations of ownership made by the parties with whom the contractor deals. However, we always advise that you consult with the Central Appraisal District as they normally can provide some guidance as to ownership of the property and can provide a legal description. Furthermore, a purchaser who knows that improvements have been made on a single piece of property has constructive notice of the worker’s right to assert a mechanic’s lien based on court cases that have so decided the matter.

• The Affidavit
• Accrual Date
• Contents of the Affidavit
• Required Notice
• Additional Notices