(note changes to Chapter 53 Property Code are effective Jan. 1, 2022, and only apply to original contracts entered into on or after that date. Original contracts entered into before January 1, 2022, are governed by the law as it existed immediately before that date, and that law continues in effect for that purpose.)

INCEPTION OF L&M LIEN (Priority of L&M Lien Over Deed of Trust or Mortgage): The inception of L&M liens is the commencement of construction of improvements or delivery of materials to the land on which the improvements are to be located and on which the materials are to be used Tex. Prop. Code § 53.124(a). The construction or materials must be visible from inspection of the land on which the improvements are being made. Tex. Prop. Code § 53.124(b). Furthermore, the material must be either material that will be incorporated into the permanent structure or material that will be consumed or used up during the construction of the permanent structure, and the construction must be of the type that is more than preparatory work such as certain demolition or site clearing, grubbing or grading work in order for commencement to occur. See Diversified Mortg. v. Lloyd D. Blaylock Gen., 576 S.W.2d 794, 802 (Tex. 1978). The Diversified case also discusses what types of delivered materials are sufficient to constitute the inception of L&M liens. Id. at 803. The owner and original contractor may jointly file an affidavit of commencement (with information required by Texas Property Code § 53.124(c) of the with the county clerk of the county where the property is located not later than the thirtieth day after the date of actual commencement of construction of the improvements or delivery of materials to the land. The affidavit of commencement is prima facie evidence of the date of commencement of construction described in the affidavit. Tex. Prop. Code § 53.124(d). The time of inception of a L&M lien arising from work described in an affidavit of commencement is the date of commencement of the work stated in the affidavit. Tex. Prop. Code § 53.124(d). A person has a lien if the person, under a contract with the owner or the owner's agent, trustee, receiver, contractor, or subcontractor: (1) labors or furnishes labor or materials for construction or repair of an improvement; (2) specially fabricates material, even if the material is not delivered; (3) is a licensed architect, engineer, or surveyor providing services to prepare a design, drawing, plan, plat, survey, or specification; (4) provides labor, plant material, or other supplies for the installation of landscaping for an improvement, including the construction of a retention pond, retaining wall, berm, irrigation system, fountain, or other similar installation; or (5) performs labor a part of, or furnishes labor or materials for, the demolition of an improvement on real property. Tex. Prop. Code § 53.021. The time of inception of a lien that is created under Tex. Prop. Code §§ 53.021(c), (d), or (e) (now §§ 53.021 (3), (4), or (5)) is the date of recording of an affidavit of lien under Tex. Prop. Code § 53.052. Tex. Prop. Code § 53.124(e) A lien created under Tex. Prop. Code §§ 53.021 (c), (d), or (e) (now §§ 53.021 (3), (4), or (5)) is not valid or enforceable against a grantee or purchaser who acquires an interest in the real property before the time of inception of the lien. Tex. Prop. Code § 53.124(e). The period for bringing suit to foreclose a lien must be brought not later than the first anniversary of the last day a claimant may file the lien affidavit. The limitations period may be extended to not later than the second anniversary of the date the claimant filed the lien affidavit if before the expiration of the limitations period the claimant enters a written agreement with the then-current record owner of the property to extend the limitations period. The agreement must be recorded and is notice of the extension to any subsequent purchaser. Tex. Prop. Code § 53.158.
PRIORITY OF REMOVABLE FIXTURES (Priority of L&M Lien Over Deed of Trust or Mortgage): Tex. Prop. Code § 53.123 gives L&M lien claimants priority over previously recorded deeds of trust or mortgages as to their removable improvements or fixtures if same can be removed without damaging either the improvement or fixture being removed or the remaining improvements or land. A judgment must be obtained, however, prior to removal. An item that plugs in or is not otherwise attached (e.g. a washing machine) is personal property, rather than a removable improvement or fixture, but an item that is attached (e.g. a dishwasher attached by screws under a countertop frame) is a fixture. See First National Bank v. Whirlpool, 517 S.W. 2d 262 (1974). Removable improvements and fixtures include (a) windows that could be removed by temporarily displacing the surrounding brick (See First Continental Real Estate Investment Trust v. Continental Steel Co., 569 S.W. 2d 42 (Tex. Civ. App. - Ft. Worth 1978, no writ), (b) certain cabinets, (c) electrical conduit, wiring in electrical conduit and junction boxes, (d) interior doors and metal door frames (but not glass brick partitions), (e) bathroom toilets, urinals, hardware and wash-basins, (f) light fixtures, wall switches and plugs, electrical cover plates and electrical control panels, and (g) air conditioning, heating and mechanical systems, grills and registers (but not duct work or piping). See In re Orah Wall Financial Corp., 84 B.R. 442 (Bankr. W.D. Tex. 1986).
STATUTORY PROGRESS PAYMENT L&M LIEN WAIVER FORMS. Tex. Prop. Code § 53.282(a) provides that a “statement purporting to waive, release, or otherwise adversely affect (emphasis added) a lien or payment bond claim is not enforceable and does not create an estoppel or impairment of a lien or payment bond claim” unless it substantially complies (emphasis added) with the applicable form described by Subsections (b)-(e) of Tex. Prop. Code § 53.284, except where the claimant has received payment, it is in a written contract for a residential construction contract (see RESIDENTIAL CONSTRUCTION PROJECTS below), or under Tex. Prop. Code § 53.287 for a written agreement to subordinate, release, waive, or satisfy all or part of a lien or bond claim in (1) an accord and satisfaction of an identified dispute; (2) an agreement concerning an action pending in any court or arbitration proceeding; or (3) an agreement that is executed after an affidavit claiming the lien has been filed or the bond claim has been made. The language in Tex. Prop. Code § 53.282(a) prohibiting statements that adversely affect a lien or bond claim, may be raised as a defense to an upfront contractor's subordination (as opposed to a waiver or release), which has historically been enforceable. See Solar Applications Engineering, Inc. v. T.A. Operating Corp., 327 S.W. 3d 104 (2010) and SAI Energy, L.L.C. v. Golden Bank, N.A., Not Reported in S.W. 3d (2011)). This would appear to make the contractual provisions in a Contractor's Consent to Assignment regarding limitations on changes more important (e.g. maximum changes without consent, and how consent must be obtained), as a potential contractual claim against the contractor for violating them, than in States that recognize upfront subordinations. Further these contractual provisions would not appear to violate public policy under Tex. Prop. Code § 53.286, which provides, “Notwithstanding any other law and except as provided by Tex. Prop. Code § 53.282, any contract, agreement, or understanding purporting to waive the right to file or enforce any lien or claim (emphasis supplied) created under this chapter is void as against public policy.”
RESIDENTIAL CONSTRUCTION PROJECTS. Special attention should be paid to Tex. Prop. Code § 53.251 - 53.260 pertaining to Residential Construction Projects for the construction or repair of a single-family house, duplex, triplex, or quadruplex or a unit in a multiunit structure used for residential purposes, owned by one or more adult persons and used or intended to be used as a dwelling by one of the owners. See definitions in Tex. Prop. Code § 53.001.
LIMITATIONS FOR CLAIMS OF CONSTRUCTION DEFICIENCY OR DEFECTIVE OR UNSAFE CONDITION: Additionally, Tex. Civ. Prac. & Rem. Code § 16.009, provides for a (a) 10 year statute of limitations, or (b) with respect to “residences” as defined therein with respect to a contractor who has provided a written warranty for the residence that complies with Subsection (a-3), a 6 year statute of limitations, after substantial completion of the improvements, to bring suit for damages for a claim against a person who constructs or repairs an improvement to real property.

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