Friday, November 21, 2008

Lien Rights of Engineers, Architects & Surveyors in Texas

The Texas Constitution provides that “[m]echanics, 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; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.” Tex. Const., Article 16, Section 37. This is the basis for the so-called Constitutional Lien, and the authorizing Texas Constitutional provision, for the statutory lien as provided for in Chapter 53 of the Texas Property Code.

In 1995, the Texas Legislature added provisions to the Texas Property Code that made it much easier for engineers, architects, and surveyors to secure a lien for their work. The amendments eliminated the difficult and problematic requirement that the design professional’s contract be filed prior to the commencement of work. Now, the design professional only needs to have a written contract and properly record (file) the lien.

Thus, § 53.021 of the Texas Property Code only requires that an architect, engineer or surveyor who: (1) prepares a plan or plat, (2) under or by virtue of a written contract with the Owner or the Owner’s agent, trustee, or receiver, and (3) that the work be done in connection with the actual proposed design, construction, or repair of improvements on real property or the location of the boundaries of real property has a lien on the property. As a result, as long as the engineer, architect or surveyor has a written contract with the owner and has actually prepared the plan or plat, the engineer, architect or surveyor, he or she will have a right to the lien, without regard to whether construction on the property actually occurred. It should be noted that as with all statutory liens under Chapter 53 of the Property Code, scrupulous observance of the deadlines for the sending of notices, and recording (filing) of the lien affidavit, are still required in order to obtain or “perfect” the lien.