Mechanics Liens: The Constitutional Lien vs. the Statutory Lien
As is commonly known,
The Texas Constitution, article 16, Section 37 provides an additional, separate lien right from the statutorily created right, called a “constitutional lien,” which reads as follows:
“Mechanics, artisans and materialmen, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or materials furnished therefore; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.”
The constitutional lien is separate from and in addition to the statutory lien rights provided under Chapter 53 of the Texas Property Code. Additionally, the constitutional lien exists without prerequisite notices. The constitutional lien is considered “self-enacting,” and arises merely from the claimant’s performance of the work. No perfection requirements exist. See San Antonio Credit Union v. O’Connor, 115 S.W.3d 82 (Tex. App. — San Antonio 2003, pet. denied).
There are two important distinguishing features of constitutional liens from that of the statutory mechanic’s lien.
First, only “original contractors” or persons with contracts directly with the owner of the improved property interest are entitled to claim a constitutional lien. Second, bona fide purchasers without notice of the constitutional lien claim do not take the property subject to such lien. See Apex Financial Corp. v. Brown, 7 S.W.3d 820, 830 (Tex. App. — Texarkana 1999, no pet.); Irving Lumber Co. v. Alltex Mortgage Co., 446 S.W.2d 64, 72 (Tex. Civ. App. — Dallas 1969), aff’d, 468 S.W.2d 341 (
Therefore, subcontractors and suppliers not contracting directly with the owner of the property into which the labor and materials were incorporated are limited to statutory lien and bond claims.
As a practical matter, even though the constitutional lien is self-enacting, it is prudent for the lien claimant to put the world on notice of the constitutional lien claim by either filing an affidavit claiming the constitutional lien in the real estate records in the county where the property is located, or in the case where a lawsuit is filed, by filing a lis pendens.
In light of the fact that bona fide purchasers without notice of the constitutional lien do not take the property subject to the lien, this written notice to the world becomes extremely important. Further, while there is no requirement in the Texas Constitution that the constitutional lien be filed within any particular timeframe, it has been held in bankruptcy court, that to be enforceable the constitutional lien must comply with the timing requirements for statutory liens. See In re Boots Builders, Inc., 11 B.R. 635 (N.D.
While such imposition of filing timeframes does not appear to be a general trend, it is important to note that in some particular instances, more stringent requirements of filing or notice may be applicable than appear in the plain constitutional language.
Since no affidavit is required to be filed, logically, no particular form of constitutional lien affidavit has been adopted. However, when an affidavit is filed, the claimant must include a phrase in its constitutional lien affidavit specifically referencing that the claim is being sought in accordance with the Texas Constitution, article 16, Section 37.
While it may be more detailed than necessary, by filing the statutory form of mechanic’s lien affidavit with a few modifications to address the constitutional lien claim, the claimant can be confident that constructive notice of the claim is being given to all parties. In addition, to ensure that notice is given, the claimant should also send a copy of the filed affidavit to the owner.
It must be noted, however, that due to the strict common law interpretation of the constitutional lien, numerous categories of labor and materials are not proper bases for constitutional liens. For example, claims for work such as sewer lines, landscaping and other similar work that are not considered “building” are not proper subjects of constitutional liens and are therefore limited to perfection pursuant to the statutory lien provisions (on a non-bonded, private project).
Although the constitutional lien is narrow in its application, an ever-increasing number of claimants are becoming familiar with its benefits and the real estate practitioner must be aware of its potential use, as well as the potential manners in which they may be defeated.
Kimber Davison is a partner in the law firm of Griffith & Nixon, P.C. and specializes in real estate and construction law.