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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.
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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