We Wrote the Book on Texas Construction Law — Literally.
At Lovein Ribman, construction law is not just a practice area—it is the foundation of our firm. For nearly two decades, we have represented the full spectrum of the construction industry in every type of dispute and transaction across commercial, residential, industrial, and public works projects throughout Texas. Our leadership in this field is well established. Managing Partner Robert M. Lovein and Senior Partner Elana M. Ribman are the co-authors of Texas Construction Law and Practice, published by LexisNexis and Matthew Bender. This treatise is widely relied upon by attorneys, judges, arbitrators, and construction professionals for guidance on preparing, filing, foreclosing, and removing statutory and constitutional mechanic’s liens; litigating residential and commercial construction defect claims; construction contract drafting and disputes; and understanding common construction statutes. The firm’s Construction Law Department is led by two of the only 151 attorneys in Texas who are Board Certified in Construction Law: Robert M. Lovein and Haven J. Massey. Year after year, Best Lawyers—the legal industry’s leading peer-reviewed publication—has recognized Lovein Ribman as one of the top construction law and litigation firms in Texas. This distinction, combined with our extensive construction litigation and transactional experience, sets us apart as one of the most qualified construction law teams in the state.
Texas Mechanic’s Lien Laws
Texas mechanic’s liens laws are among the most complex lien laws in the Nation. To compound the complexity, Texas courts require the lien claimant to strictly follow the lien laws in order to perfect a valid lien against a property. Despite that, the county clerk’s office (the location where liens are filed) will not review the lien affidavit prior to recording it to determine whether the lien claimant is entitled to a lien or has satisfied all of the lien laws. As a result, thousands of invalid liens are recorded on a monthly basis.
It is not uncommon for an uninformed claimant to threaten filing a lien when no lien rights exist or have been waived, or worse, to actually file and attempt to enforce a patently invalid or unenforceable lien. While an invalid lien affidavit may seem harmless, even the threat of filing a lien can unnecessarily strain the relationship between the owner and the original contractor. Additionally, the filing of an invalid or unenforceable lien affidavit can disrupt project funding, delay project closeout, and interfere with the sale or refinancing of the property. For these reasons, property owners—and in some cases, original contractors—should take proactive steps to prevent the filing of an invalid lien. If an invalid lien affidavit has already been recorded, immediate action should be taken to remove it from the property’s title to minimize any adverse impact on the project.
There are three primary strategies to remove an invalid or unenforceable lien: (1) sending a demand letter to the lien claimant; (2) seeking court intervention through a motion under Section 53.160, “Summary Motion to Remove Invalid or Unenforceable Lien,” or a traditional motion for summary judgment under Tex. R. Civ. P. 166a; and (3) obtaining a private bond under Subchapter H, “Bond to Indemnify Against a Lien.” The first two options are generally only available when the lien is procedurally defective rather than substantively disputed. A procedural defect refers to a claimant’s failure to meet one or more of the mandatory requirements for perfecting a lien under Chapter 53, where the defect is not excused under the doctrine of substantial compliance. Procedural defects also include cases where the original contractor on a homestead property fails to satisfy the contractual prerequisites under Section 53.254(a)-(e), thereby waiving lien rights for all claimants. In contrast, a substantive dispute involves a factual issue, such as whether the claimant is actually owed money, which can only be resolved through a trial on the merits. The third option, obtaining a private bond to indemnify against a lien, can be used to release both procedurally invalid liens and liens that are not procedurally defective but are subject to a substantive dispute.
Given the complexity of our lien laws, it is not uncommon for non-construction law attorneys, online lien filing services, and contractors to wrongfully threaten, We have removed thousands of invalid residential and commercial liens. If you have been threatened with a lien or need to remove an invalid lien, please contact us for a consultation by calling (888) 368-2483 or by submitting the Contact Form. Read on to learn more about the lien removal process or file, and/or maintain an invalid and unenforceable mechanic’s l
The Basis to Invalidate a Mechanic’s Lien
Subcontractor’s Failure to Serve or Timely Serve a Notice of Claim: All subcontractors, material suppliers, and laborers who were not hired by the property owner, must timely serve a Notice of Claim (also referred to as an “Intent to Lien” or “Pre-Lien Notice”) before recording the lien affidavit. General contractors (or anyone hired directly by the property owner or its agent) are not required to serve any preliminary notice before recording a mechanic’s lien. Failure to timely serve the Notice of Claim will render the mechanic’s lien invalid.
On residential properties, the Notice of Claim must be served on the property owner and the general contractor by no later than the 15th day of the second month, from each and every month, the lien claimant provided unpaid labor/materials to the property. For example, if the lien claimant provided unpaid work in January, then the Notice of Claim must be served by no later than March 15th. On commercial projects, the lien claimant has an additional month to serve the Notice of Claim, or the 15th day of the third month from each and every month that the lien claimant provided unpaid labor/materials to the project. If the 15th falls on a weekend or federal holiday, the notice must be sent by the next business day.
To add one other layer of complexity, subcontractors whose work is performed at the end of a project must serve the Notice of Claim before the property owner releases final payment to the general contractor, even if the deadline to serve the notice has not passed. A property owner may release all construction funds after 30 days from achieving substantial completion.
Failure to serve or timely serve a Notice of Claim is one of the most common ways to defeat or reduce the amount of a mechanic’s lien.
Failure to Include the Required Statutory Language in the Notice of Claim: A Notice of Claim must substantially comply with the forms identified in Chapter 53, Sections 53.056 (unpaid progress payments) and 53.057 (unpaid retainage). On commercial properties and residential non-homestead properties this requirement is easily satisfied. In contrast, on residential homestead properties the statutory notice requirements are more substantial and consist of three lengthy paragraphs which are rarely included in the notice unless prepared by a construction attorney.
Failure to Timely Record the Lien Affidavit: On residential properties, a direct contractor (one hired by the property owner) has until the 15th day of the third month from completion, abandonment, or termination of the contract to record a statutory lien affidavit. On commercial properties, the direct contractor has an additional month, or the 15th day of the fourth month from completion, abandonment, or termination of the contract. However, most direct contractors are also entitled to file a Texas Constitutional lien, which can be recorded within 4 years from completion, abandonment, termination, or suspension of the work. To be entitled to a Constitutional lien, the direct contractor must have provided labor or materials to improve a structure and the property must not have been sold to a good faith purchaser (someone who was not aware of the debt) before the lien is recorded. A direct contractor does not have a right to record a Constitutional lien for the following type of work: design services, architectural services, engineering services, earth work, fencing, pool construction and maintenance, landscaping, irrigation, water wells, or paving exterior to the structure.
Subcontractors must follow the same deadlines as general contractors, but their deadline begins to accrue when they have completed their portion of the work, or have been terminated or abandoned the project, as opposed to when the overall project was completed. A subcontractor’s deadline to file its lien affidavit, can also be reduced when the direct contractor has been terminated from the project.
Failure to Include the Necessary Information in the Lien Affidavit: A properly prepared lien affidavit must include: (1) the identity of the claimant; (2) the identity of the property owner; (3) a description of the property, such as address, lot/block, meets and bounds; (4) the amount owed; (5) a description of the unpaid work; (6) identification as to when the unpaid work was performed or completed; (7) if a subcontractor, the date and method for serving the Notice of Claim and who it was served on; (8) a notarized sworn statement that the information contained in the affidavit is true and correct. Generally, failure to include any of the aforementioned information will invalidate the lien. On re
Failure to Follow the Homestead Requirements: It is not easy to perfect a mechanic’s lien on a homestead property and most liens filed on a homestead are in fact invalid. However, if the rules are followed, then a lien claimant can actually foreclose (sell) a residential homestead property to pay the amount of the lien affidavit. With that said, the two most important requirements for perfecting a lien against a homestead property are: (1) the direct contractor must have a written contract signed by both spouses (if a married couple) before any work has been performed; and (2) the contract must be recorded with the county clerk’s office. If these two requirements have not been satisfied then the direct contractor and anyone working under the direct contractor, are not entitled to record a valid lien against the property. In addition, the lien affidavit must contain a notice at the top of the document that states, “NOTICE: THIS IS NOT A LIEN. THIS IS ONLY AN AFFIDAVIT CLAIMING A LIEN.” As mentioned above, the Notice of Claim must also contain additional mandatory notices for it to be valid.
Failure to Timely Serve the Lien Affidavit: After the lien affidavit has been recorded, the lien claimant must serve the property owner with the lien affidavit by certified mail, or its equivalent, within 5 business days from recording the lien. Failure to do so will invalidate the lien.
Failure to File a Lawsuit to Foreclose: Recording and serving the lien affidavit is not the last step. A lien claimant must file a lawsuit to foreclose the lien; meaning prove up it is actually entitled to the money claimed owed and that its lien is procedurally valid. The lawsuit must be filed within no later than one year from the deadline to file the lien affidavit, unless the parties have agreed to extend the deadline in writing. Generally speaking, this deadline tends to run approximately one year from when the lien affidavit was recorded since most lien claimants wait until the last date to record the lien. If a lawsuit is not filed within these deadlines, the lien becomes invalid even if the lien was properly perfected.
Methods for Defeating and Removing an Invalid Lien Claim
Informal Demand to Release Lien: By far, the most expeditious and least expensive method to defeat a contractor’s threat to file an invalid lien or remove an already filed invalid lien, is to prepare and send the lien claimant a demand that thoroughly outlines the lien laws, defects with the lien documents, and the sanctions that will be sought and imposed by the court if the invalid lien is filed and/or not immediately removed. Over the years we have found this option to be very effective.
Lawsuit to Remove an Invalid Lien: By far the most expensive and time-consuming option, but necessary if the lien claimant will not voluntarily release the lien. Through this process, a lawsuit is filed against the lien claimant, along with a Motion to Remove the lien. At a minimum, this process can take up to 3-4 months. If the court grants the motion, the plaintiff is entitled to recover its reasonable and necessary attorneys’ fees and costs incurred to remove the lien. In addition, if the lien claimant knowingly filed an invalid lien with the intent to cause harm, then the court is authorized to issue sanctions up to $10,000.00, plus punitive damages.
Deposit the Lien Amount with the Court: If the property owner deposits all funds subject to a Notice of Claim for unpaid labor, materials, and retainage into the court’s registry, a Motion can be filed to remove the lien. This allows the parties to litigate the validity of the claim, without the lien encumbering the property.
Bond Around the Lien: It is possible to purchase a bond from a surety that stands in place of the lien. This process is commonly referred to as “bonding around the lien”. Upon recording the bond with the county clerk’s office, the lien is released and the lien claimant can no longer foreclose its lien against the property, but instead must assert a timely claim against the bond. To purchase such a bond, you generally need to deposit 1.5 times the lien amount with the surety or offer a letter of credit in the same amount. Bonding around a lien can be very expensive and is generally reserved for companies who have sufficient assets to purchase the bond and pay to defend the surety against a claim to enforce the bond.
