Lien rights of architects and engineers are not widely publicized and are often forgotten or purposefully not asserted. Some designers do not know they have such rights and others are concerned that asserting them may lead an owner or developer to assert claims for design errors and omissions.  Since the bulk of a designer’s work is typically completed before construction begins, a construction contractor may not even know that the designer has asserted lien rights.  Such knowledge might provide an early clue about the owner’s or developer’s payment habits and telegraph to the contractor the degree of vigilance it should use in enforcing payment obligations.     

What are a designer’s lien rights?  How are they enforced?  Texas law recognizes two general categories of mechanic’s liens, statutory and constitutional. A statutory lien exists through compliance with the applicable statutes, while a constitutional lien arises by virtue of the Texas Constitution without the aid of the statutes. Both have applicability to engineers, architects, and land surveyors.

A.    Statutory Liens

Under certain circumstances, a design professional may assert a statutory lien.  Section 53.021(c) of the Texas Property Code states that an architect, engineer, or surveyor who prepares a plan or plat under a written contract with the owner in connection with the actual or proposed design, construction, or repair of improvements on real property has a lien on the property. The key points are that the design professional must have a written contract with the owner and must have prepared a design, plan, or plat for the property.  Even if the design is never constructed, the architect or engineer or surveyor may assert a lien for non-payment.   

For purposes of the lien statute, some design professionals are “original contractors”, allowing for relaxed notice requirements under the Texas Property Code. An “original contractor” is one who contracts with the owner directly or through the owner’s agent. Some examples of projects on which a design professional might be an “original contractor” include an architect retained by an owner for a commercial office building and a geotechnical engineer retained by a developer for an initial soil study. When the design professional qualifies as an “original contractor”, it does not need to send written notice before filing its lien affidavit.

Not all design professionals contract directly with the owner.  Some, like structural engineers, mechanical, electrical, and plumbing engineers, are typically retained as subconsultants to an architect.  Those designers would not have a written contract with the owner and, therefore, might not be entitled to a statutory lien.

The key to perfecting a lien is filing the lien affidavit in a timely manner. The deadline for filing a mechanic’s lien affidavit of an “original contractor” is the 15th day of the fourth month after the month in which indebtedness accrues. For an “original contractor”, indebtedness accrues on the last day of the month in which the contract is terminated, completed, settled, or abandoned.  Additionally, an original contractor is required to send written notice to the owner, with a copy of the lien affidavit, via certified mail on or before the 5th day after the lien has been filed.

B.    Constitutional Liens

Although no Texas courts have definitively held that architects, engineers, and surveyors are entitled to a Constitutional lien, it stands to reason that because architects, engineers, and surveyors are considered “original contractors,” Texas law should also afford these entities a Constitutional lien. 

Art. XVI § 37 of the Texas Constitution provides:

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.

This provision has long been interpreted by Courts to mean that the constitutional lien in Texas is available only to entities who contract directly with the owner of the property. The constitutional lien, although limited in availability, does not require any particular form of notice or affidavit to be filed to preserve the claimant’s rights. 

There are major drawbacks to relying on a Constitutional lien rather than a statutory one. First, specifically as it relates to architects, engineers, and surveyors, in order to have a valid Constitutional lien, the architect, engineer, or surveyor’s labor expended in preparing any plans or plats must be labor expended in making or repairing an actual building on the property and not just a proposed design, plan, or plat for a building. Second, Constitutional liens, unlike statutory liens, will not be enforced against a later purchaser of the property who has neither actual nor constructive notice of the Constitutional lien.

As with all issues involving the interpretation of legal rights and remedies, consulting qualified legal counsel is always recommended.  The attorneys in our Austin and Dallas offices are available to answer any questions you may have.  You may contact us at info@gstexlaw.com with any questions you may have.

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