Texas Constitutional Liens vs Statutory Mechanic’s Liens
Securing payment for construction services and materials can make or break any project. In Texas, constitutional liens provide powerful protections for original contractors, especially when they miss the statutory requirements for filing a mechanic’s lien. Knowing how and when to leverage these liens can be critical for original contractors seeking to enforce their payment rights.
What is a Texas Constitutional Lien?
Article XVI, Section 37 of the Texas Constitution guarantees that "mechanics, artisans and material men, 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 material furnished therefor.” This seems like a mechanic’s lien, right? Wrong! This lien under the constitution exists independently of Texas Property Code Chapter 53 (the mechanic’s lien statute), and it is unique to contractors with a direct contract (or privity) with the property owner.
Key Features
Who is protected? Only original contractors—those contracting directly with the property owner—can assert a constitutional lien. Subcontractors or suppliers without privity with the owner do not qualify.
What projects qualify? Constitutional liens generally attach to buildings or articles made or repaired, not to land alone. This can create enforcement issues for design professionals if their work is not directly incorporated into a constructed improvement. Claims for landscaping or irrigation (which are not buildings) likely do not qualify.
Automatic and Self-Executing. Unlike statutory liens, which require strict notice and filing deadlines, the constitutional lien is self-executing. It arises as soon as the contractor supplies labor or materials under a qualifying contract.
No Notice or Affidavit Required — But Filing is Prudent. There is no requirement to file a constitutional lien affidavit or notify the owner to establish the lien. However, it is still a best practice to file an affidavit in the property records, to and to give notice to third parties and preserve rights in case the property changes hands. To the extent a contractor has not missed the statutory mechanic’s lien deadlines, the contractor should preserve their options by also following the requirements of the mechanic’s lien statute. Statutory liens may also receive preferential status over constitutional liens.
Limitation on Successor Purchasers. Constitutional liens do not bind bona fide purchasers who lack actual or constructive notice of the liens. Therefore, filing a lien affidavit can help with providing notice to subsequent purchasers.
Best Practices for Contractors and Legal Counsel
For companies seeking to secure payment on Texas projects, understanding constitutional lien rights is critical:
Evaluate Privity Early: Only those with a direct contract with the owner are eligible. Structuring contracts to maximize privity can protect key claims.
File Promptly When in Doubt: Even though the lien is "automatic," recording a lien affidavit preserves notice rights and bolsters claim strength.
Use in Combination: Don’t rely solely on constitutional liens—perfect statutory liens where possible for maximum payment security and priority.
Consult Experienced Counsel: Constitutional liens, while powerful, are nuanced. Legal requirements and priorities change with each project's structure and timing.
