How to File a Texas Mechanics Lien

Residential Projects

Residential Project: Hired by General Contractor or Subcontractor

  • Step 1

    MANDATORY

  • Serve THE Second Month Pre-Lien Notice

    All Subcontractors and Material Suppliers must serve the Property Owner and the General Contractor with a Second Month Pre-Lien Notice by no later than the 15th day of the second month from each and every month that they provide labor and/or materials to the Property and have not been paid.  Learn more about the contents of a Pre-Lien Notice.

    Example

    If you provided labor or materials in January and February and were not paid for each month, then for the work done in January, you must serve the Second Month Pre-Lien Notice by no later than March 15; for the work done in February, you must serve the Second Month Pre-Lien Notice by no later than April 15.  Note that these two Notices can be combined into one if sent by no later than March 15. Learn more about the Pre-Lien Notice deadlines.

    Practice Pointer

    If you want the lien to attach to the retainage of which the Property Owner has withheld from the General Contractor throughout the course of the project, then your lien must be filed by no later than 30 days after the project is completed, abandoned, or terminated; otherwise the retained funds may be released to the General Contractor and your lien will just be against just the property. a question about this Practice Pointer.

  • Step 2

    MANDATORY

  • SERVE THE NOTICE OF CONTRACTUAL RETAINAGE

    THIS STEP APPLIES TO WITHHELD RETAINAGE ONLY: If your contract with the contractor who hired you allows them to withhold a percentage of your monthly progress payments as contractual retainage (typically 5% to 10% of the overall contract amount), then you must serve the Property Owner and the General Contractor with the Notice of Contractual Retainage by the earlier of: (1) 30 days from completion of your work; or (2) within 30 days from completion of the entire Project, whichever comes first.  This is a mandatory Pre-Lien Notice which must be served before you can file a Mechanics Lien for withheld unpaid retainage.  Note: this Notice only applies to withheld retainage.  Click here to learn more or a question about Contractual Retainage.

  • Step 3

    MANDATORY

  • Prepare and File the Mechanics Lien AFFIDAVIT

    Prepare the Mechanics Lien Affidavit and file it with the County Clerk’s Office where the Property is located by no later than the 15th day of the third month from  completion of your work or delivery of your materials to the Project.  Learn what information must be included in the Mechanics Lien Affidavit.

    Example

    If you complete your work or last provide your materials to the Project in July, then you must file your Mechanics Lien Affidavit by no later than October 15.

    Practice Pointer 1

    The Property Owner is required to withhold 10% of the overall contract amount from the General Contractor until 30 days from completion of the entire Project (referred to as “statutory retainage”).  To ensure that your Mechanics Lien Affidavit attaches to the withheld retainage, file your Mechanics Lien Affidavit within no later than 30 days of completion of the Project, regardless if your deadline is later; otherwise the retained funds may be released to the General Contractor.

    Practice Pointer 2

    If your Mechanics Lien is solely for unpaid withheld contractual retainage, then you have until no later than the 15th day of the third month from when the contract between the Property Owner and the General Contractor is either completed, finally settled, terminated, or abandoned to file the Mechanics Lien.  Click here to learn more.  However, to ensure that your Mechanics Lien Affidavit attaches to the withheld statutory retainage, file your Mechanics Lien Affidavit within no later than 30 days of completion of the Project, regardless if your deadline is later; otherwise the retained funds may be released to the General Contractor. a question about this Practice Pointer.

  • Step 4

    MANDATORY

  • Serve Notice of Lien Filing

    You must serve the Property Owner and the General Contractor with the Mechanics Lien Affidavit by no later than the fifth day after filing the Mechanics Lien.  Click here to learn more.

    Practice Pointer

    This is an excellent opportunity to once again demand payment from the Property Owner and the Contractor who hired you before incurring the expense of filing a Lawsuit to foreclose on the Mechanics Lien. The Lien Professor’s Mechanics Lien Kit contains a Cover Letter to Notice of Lien Filing that is drafted in the form of a strong Payment Demand Letter which notifies the parties of your legal rights and your intention to file a Lawsuit to foreclose on the Mechanics Lien if the debt is not immediately paid.

  • Step 5

    Optional

  • Serve A Pre-FORECLOSURE Payment Demand

    If you did not receive payment within 3-5 weeks of completing the above Step, you may need to file a Lawsuit.  However, before you do, consider serving the Property Owner and the General Contractor with a Pre-Foreclosure Payment Demand Letter demanding payment and advising of your intention to retain counsel to file a Lawsuit to foreclose on the Mechanics Lien, for breach of contract, fraudulent inducement to enter into a contract, violation of the Prompt Payment Act, and violation of the Trust Fund Statute.  The Lien Professor’s Mechanics Lien Kit includes a Pre-Foreclosure Payment Demand Letter specifically designed for this purpose.

  • Step 6

    MANDATORY

  • File a Lawsuit to Foreclose ON THE LIEN

    You are not required to file a Lawsuit simply because you filed a Lien.  However, if you do not file a Lawsuit to foreclose on the Mechanics Lien within approximately one year from the date that you filed the Lien, the Mechanics Lien will become invalid and unenforceable.  If you file a Lawsuit, you should also include a cause of action for breach of contract, violation of the Trust Fund Statute, and violation of the Prompt Payment Act.  If you prevail on your Lawsuit to foreclose on the Mechanics Lien, you will be entitled to recover your reasonable attorneys’ fees and costs.  Click here to learn more about having Lovein | Ribman, P.C. prepare and file a Lawsuit for you.

The Lien Professor’s Mechanics Lien Kit includes all of the Documents that you need to perform all of the above-referenced steps up until filing a Lawsuit. Alternatively, you can click here to learn more about having Lovein | Ribman, P.C. prepare the Documents or File a Lawsuit for you.