The Texas Property Code requires the following specific categories of information to be in a lien affidavit in order for the lien to be valid:
Identification of the Claimant
If the claimant is a registered entity, then the full legal name of the business should be stated. You will also need to identify the person who will sign the affidavit on behalf of the entity and that person’s title with the company. If the claimant is a d/b/a, then the person who is using the d/b/a needs to be identified, along with the d/b/a name. If the claimant is an individual, then simply state that person’s full name. In addition to the above, the affidavit must include: (1) the mailing and business address for the claimant; and (2) the county of which the person who signs the affidavit is a resident.
Identification of the Owner or Reputed Owner
The lien affidavit must include the name and address of the property owner or the person or entity reasonably thought to be the owner, otherwise known as the “reputed” owner.
A Description of the Work Performed and Materials Furnished
All claimants must include a description of the work or the materials furnished to the project. Everyone but a general contractor must also state the month(s) in which the work or materials were provided to the project. Depending upon the information contained in your invoice, you may be able to satisfy this requirement by simply attaching the invoice(s). However, note that the county clerk’s office will charge you an extra $4.00 for every page filed with the lien affidavit. Therefore, sometimes it is cheaper and safer, to just describe the work and identify the months the work was performed in the lien affidavit itself as opposed to relying on attached invoices. The Texas Property Code also permits use of common industry abbreviations to describe the work or materials; however, it is better practice to use complete words/sentences so as to avoid any confusion or miscommunication.
Identification of the Person Who Hired the Claimant
This requirement is satisfied by including the name and last known address of the person or company that hired you.
Identification of the General Contractor
Include the name and last known address of the project general contractor.
A Description of the Property
The affidavit must contain a legally sufficient description of the property. The description must be detailed enough for the tract of land to be identified with reasonable certainty. A lot-and-block description of the property is preferred, but if not available a lot, block, and subdivision description, or a metes-and-bounds description are also sufficient. This information can be difficult to obtain and a failure to properly describe the property could result in an invalid lien.
The Amount of the Claim
The lien affidavit must include the amount of which you are owed for the labor and/or materials provided to the project. Some examples of items that should not be included in calculating the lien amount are: (1) anticipated profits; (2) prejudgment interest; (3) returned materials not incorporated into the project (if not specially fabricated); (4) lien costs; or (5) attorneys’ fees. Although attorneys’ fees and costs may be recoverable under Texas Property Code Section 53.156, the amount incurred for these items cannot be included in the lien affidavit.
Pursuant to Texas Property Code Section 53.024, the amount of a subcontractor’s lien may not exceed: (1) an amount equal to the proportion of the total subcontract price that the sum of the labor performed, materials furnished, materials specially fabricated, reasonable overhead costs incurred, and proportionate profit margin bears to the total subcontract price, minus (2) the sum of previous payments received by the claimant on the subcontract.
Identification of Statutory Notices
All claimants, other than general contractors must state the date on which each pre-lien notice letter was sent to the owner and general contractor and identify the method by which the notices were sent.
The Affidavit Must be Sworn Under Oath
This is accomplished by concluding the affidavit with what’s known as a jurat, whereby the affiant affirms or swears under oath that the contents of the affidavit are true. The jurat is made before a notary. Failure to use a jurat in the affidavit will render it void.