There is a second type of Lien (other than a statutory lien) authorized by the Texas Constitution, Article XVI, Section 37, appropriately referred to as a “Constitutional Lien”.  The deadline to record a Constitutional Lien, against either a Residential or Commercial Property, is four (4) years from when the contract was completed, terminated or abandoned.  However, not every contractor has a right to file a Constitutional Lien.  First, only a Lien Claimant who was hired directly by the Property Owner, Property Owner’s Agent, or Tenant, has the right to record a Constitutional Lien.  Second, the unpaid work must have been performed on a structure, like a house, an office, a shed, a garage, or a barn.  As such, a Direct Contractor does not have the right to file a Constitutional Lien for unpaid design services, architectural services, engineering services, earth work, fencing, pool construction and maintenance, landscaping, irrigation, water wells, or paving exterior to the structure (with some exceptions).  Third, the Constitutional Lien is lost, or waived, if the Property is sold to a “good faith purchaser” (someone who essentially does not know the debt is owed) before the Lien Affidavit is recorded.  Last, if the Property is a Residential Homestead, then the additional conditions must be satisfied to have the right to a Constitutional Lien: (1) there must be a written contract signed by both spouses (if a married couple), before any work was performed at the Property; (2) the contract must have been signed at a title company, lender’s office or before an attorney; (3) the contract must be recorded in the real property records; and (4) the contract must contain a provision which allows the homeowner the right to rescind the contract within three days of signing.  If any of the above requirements have not, or cannot be satisfied, then the Lien Claimant may not have the right to maintain a Constitutional Lien.

If you need assistance with a Constitutional Mechanics Lien in Texas in April 2024, contact us today.