Materialmen's Liens in Texas

Mechanics and Materialmen's (M&M) liens have long been favored under Texas law. This article will set out the basis for both types of liens, provide practice tips to help those who might be required to work in this area and present to the reader the information which will allow him or her to successfully file and recover on such a lien or to defend such a filing for a client.

Excerpt:

There are two types of M&M Liens under Texas law. The first comes from the Texas Constitution, which creates a mechanic's lien, in Article 16, Section 37 ("Constitutional Lien"). The Constitutional Lien is created for the benefit of those mechanics and materialmen who perform work or provide materials for the construction or repair of buildings or articles. Claimants must have contracted directly with the Owner to make such improvements or so provide materials. The Constitutional Lien is self-executing and does not require either the notice or public recording. This is an important advantage over the lien created by the Texas Property Code, which requires filing and notice.

The second comes from Texas Property Code-Chapter 53, which creates a statutory mechanic's lien ("Statutory Lien") in favor of those persons who are qualified to have such an encumbrance and the procedures must be properly and timely "perfected" in order to have legal effect as an encumbrance against the Owner's title. The "perfection" process, which involves both written notice and public recording, is exact and must be strictly followed.

What Goods or Services are Subject to Protection by an M&M Lien?

The Constitutional Lien protects persons or entities in an amount equal to the value of the labor done and/or the value of the materials furnished. The Statutory Lien protects a person or entity for either: (1) the labor or material furnished for the construction or repair of improvements; (2) any material specially fabricated for a project, even if that material was never delivered or incorporated into the construction project, less the fair salvage value of the material; and (3) the preparation of plans or a plat by an architect, engineer, or surveyor, provided such was done under a written contract with the Owner.

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