Home>Levelset Community>Legal Help>In the state of TX, can a sub contractor file a lien against an owner if the general contractor does not pay them? There was no written or verbal agreement between the owner and the subcontractor. Also, can they file a lien against the owner if they never sent the 2nd month notice by the deadline?

In the state of TX, can a sub contractor file a lien against an owner if the general contractor does not pay them? There was no written or verbal agreement between the owner and the subcontractor. Also, can they file a lien against the owner if they never sent the 2nd month notice by the deadline?

TexasMechanics Lien

I believe my parents have been victims of fraud. They had a general contractor fix their roof and the GC brought a subcontractor to do the roofing job. My parents paid the GC when the roofing finished but the GC did not provide correct documents such as a formal estimate nor invoice and had been putting off providing them the documents. About a month later, the SC came to the house threatening to tear the roof off if they are not paid. My parents and SC had been calling to resolve the issue but GC keeps making excuses and dodging. The SC made threats to file a lien against the house. Before the work was done, GC paid them partially in cash but did not pay the rest afterwards.

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Aug 20, 2018

First, as a general matter a mechanics lien may be filed by parties not under direct contract with the property owner. Further, before getting too far into the details here, it's worth noting that a lien filing is entirely possible, regardless of whether the filed lien would be considered valid. County recorder offices typically have neither the bandwidth nor the authority to scrutinize each lien claimed. That means, regardless of whether the claimant should file a lien - a property owner may still have to deal with a lien filing. Anyway, a claimant may still file a lien regardless of whether the party who hired them was paid. So, a subcontractor will not be barred from filing a lien because their general contractor was paid. But, as mentioned in the question above, there are strict requirements that must be followed prior to filing a lien. Specifically, subcontractors on residential jobs are required to send 2nd month notice. If 2nd month notice is not sent, the claimant will not be able to file a valid lien. Further, when a residential property is considered a Homestead, there are even more potential requirements: Texas Homestead Lien Requirements. As for next steps - there are a number of ways a property owner may respond to threat of a lien filing (once once a lien has been filed, this article may be a good place to start, and this one covers how to remove a filed TX mechanics lien). Before a lien has been filed, informing a potential claimant that their filed lien would not be valid is a good start. Further, when that claimant is a subcontractor of a general contractor ("GC") who has received payment, it's important to remind the GC that a lien filing is their problem too. Specifically, threatening to bring suit against the GC unless their sub is paid can be effective. Plus, a lien filing truly is the general contractor's problem too - under § 53-153 of the Texas Property Code, a contractor must defend an owner from any suit brought as a result of the lien claim, and the contractor may be required to pay back some of the funds received from the owner. So, threatening/informing the contractor that they will be tied up in a legal battle due to nonpayment of a subcontractor can be a very effective way to fend off a claim. As a final note, not all invalid mechanics liens are fraudulent (more on that here). But, when a lien is fraudulent, stiff penalties can come into play.

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