Persons who use this provision are not bound by legal requirements (e.g. B termination obligations) of Chapter 53 because their privileges derive directly from the Texas Constitution and cannot be restricted by law. This structure is based on the assumption that “original contractors” work directly with landowners, eliminating the need for a written notice of constitutional privilege. Therefore, it could be argued that Texas` constitutional privilege provision provides owners with less protection from invalid privileges than the laws of other states. Only the constitutions of seven other states refer to the privileges of mechanics, and only the one of Texas is self-executive and separate from laws. Well, as mentioned above, if you are entitled to constitutional privilege, use both. Constitutional privileges arise automatically. If a breach of privilege does not comply with one of the legal deadlines or termination obligations, he or she may fall back on constitutional protection. Karen T. said: Thank you for the comments. I have discussed this with my client/girlfriend and she is following the appropriate people, including the police and a lawyer. Thank you for your help. In addition to legal privilege, the Texas Constitution provides another mechanism for mechanical privilege available to Texas contractors, aptly called a constitutional privilege.

Constitutional privileges, unlike legal privileges, are automatic because they carry out themselves. Basically, depending on your status (i.e., are you an original contractor or subcontractor?) and the nature of the project (i.e. Housing or non-residential buildings) modify the requirements for a constitutional privilege and influence whether a constitutional privilege has been enforced itself (or is available at all). This is not the case with constitutional privileges; which makes it much more difficult to challenge them. In fact, you don`t even need to file an affidavit (but we recommend it anyway). First of all, you must be an original contractor who has improved a building or item. This first requirement is usually met if you have done some work or if your materials have been used inside or on the project or property. It is nuanced when you provide materials or only improve.

B a certain aspect, for example the repair of the air conditioner. Only the original contractor, that is, a contractor who enters into contracts directly with the owner, is entitled to a constitutional privilege. If you are a subcontractor, such as a plumber or electrician, it is unlikely that you have a direct contract with the owner and therefore are not eligible for a constitutional privilege. But wait! There is one exception, which is discussed below. This begs the question, what is a fake contract? It is a question of control. A false contract is when an owner can effectively control the prime contractor (or vice versa) through ownership, management, or otherwise. Or if the Prime Minister was contractually agreed without a good intention that he would act as a GC. In these circumstances, any person who has entered into a contract with the Prime may be considered the original contractor.

For example, the owner of the property may use their own construction company as a general contractor for the project. Or they have an interest or control over the activities of the general contractor. The inclusion of the “false contracts” exception, which the Texas legislature is designed to protect from owners and/or prime contractors who seek to circumvent constitutional privileges. Keep in mind, however, that even if a court is shown to fail to meet these requirements, the applicant may argue that the privilege survives because it meets the requirements of a constitutional privilege, as explained below. Terraces in Cedar Hill, LLC, v Gartex Masonry & Supply, Inc., 2011 Tex. App. LEXIS 2114 (Tex. App. – Dallas 2011, pet. refused). But there is a circumstance in which someone without a direct contract with the owner may still have constitutional privileges. If the direct contractor`s contract is a “fictitious contract”, a 1st level subcontractor may have these privileges.

As you can see, the fourth requirement is a challenge. If you are an owner and all of the above requirements have not been met, you have the right to file a request to remove an invalid or unenforceable privilege (similar to the method provided for in Section 53.160 of the Texas Property Code). Similarly, if you are an initial contractor and all of the above points were not fulfilled when signing the contract, you cannot assert a constitutional privilege. At the same time, however, the category of people who can use this provision is much more limited – only “original contractors” can effectively claim constitutional privileges. An “original contractor” is “a person who enters into contracts with an owner, either directly or through his representative.” This means that subcontractors are almost always prohibited from asserting constitutional privileges. Unfortunately, this also means that there is usually no quick legal method, such as . B the “summary application” for the annulment of an invalid constitutional privilege, since the applicant did not have to comply with § 53.160. Fortunately, an owner who fights against this type of privilege is not limited to proving that it is unfounded. The owner may also pursue a claim of fraudulent lien under Chapter 12 of the Code of Practice and Civil Remedies, which is explained in another blog post. A constitutional privilege cannot be exercised against a subsequent purchaser of the property if he has not received real or implied notice of the privilege. So, if you`re still waiting for payment, submit one. The filing requirements are essentially the same: simply submit an affidavit of privilege to the clerk of the county where the property is located.

This serves as a notification for potential buyers of the property. An owner can often attempt to withdraw a lien through a summary application if the deposit requirements are not met, meaning that the lien was invalid or unenforceable. But there are limits to the summary motion because it can only say this: © De Leon & Washburn, P.C. This article is published for informational purposes only. This is not legal advice and does not establish an attorney/client relationship between De Leon & Washburn, P.C. and readers or recipients. Readers should consult with a lawyer of their choice to discuss how these issues relate to their individual situation. The articles are not constantly updated and D&W makes no warranties or representations as to their accuracy or completeness.

As with all Texas privileges, there are a few details and nuances in the privilege process, such as the family property dilemma and improvements to tenants. However, original contractors working in Dallas, Houston, or any other part of Texas should know how these extra privileges can help them get paid for their next construction project. Athena Ponce and lawyers at De Leon & Washburn, P.C. are available to help clients with real estate and construction issues. For more information on the firm`s practice areas, please visit our Practice Areas page and can contact lawyers at any time. However, even if you fall into one of these categories, it is not easy to properly file a chapter 53 lien claim, as the filing must meet several requirements. You must file an affidavit with the district clerk where the property is located within 3 months and 15 days of the service debt arising. The affidavit must include details identifying the applicant, owner, goods and works, services and/or documents in support of the affidavit of privilege.

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