Placing Mechanic's and Materialman's Liens -- Suppliers' and Subcontractors' Procedure for Ensuring Payment on Residential Construction Projects

As our economy sours in the face of exorbitant gasoline and commodity prices, more and more residential builders -- particularly custom home builders -- are experiencing financial problems, resulting in the non-payment of suppliers and/or subcontractors. Many times, the builder has already drawn upon the owners' loan or construction account for the work or materials furnished, but failed to remit the funds he collected to those actually performing the work or supplying the materials. Although such conduct is a violation of the texas Trust Act and is actionable, often times, a subcontractor or supplier will not be in a position to pursue monies owed through litigation. In these instances, a quicker (and often more effective) way of ensuring payment is through the placement of a Mechanics or Materialman's Lien as precribed by Chapter 53 of the Texas Property Code. But be careful, the Lien statute is tricky, and has complex procedural processes and deadlines, which must be strictly adhered to.

One of the key deadlines is found in Section 53.052(b) of the Texas Property Code, which requires that a person claiming a lien arising from a residential construction project file an affidavit with the county clerk of the county in which the property is located not later than the 15th day of the third calendar month after the day on which the indebtedness accrues.. Liens which are filed after this time may not be enforced.

Another important section of Chapter 53 is Section 53.054, which lists the specific information which must be contained in the affidavit. If any of this information is omitted, the affidavit and accompanying lien may be invalid.

Suppliers, vendors and subcontractors who want to ensure that their lien interests arising from non-payment on a residential construction project should contact an attorney experienced in residential construction claims.