SUMMARY OF MECHANICS’ LIEN LAW · pays the general but the money does not filter down to the subs and suppliers. A sub then files a mechanic’s lien and requests the owner to pay

SUMMARY OF MECHANICS’ LIEN LAW

FOR TEXAS

With Changes for 2012

Section Contents—Pre-lien Notice(s)

• Name of Notice • Who Must Use This Notice • When • How to Serve • Verified or notarized?

1 ©2012. NationalLienLaw.com. All rights reserved. (925) 899-8449. [email protected]. Revised 10-12

Section Contents—Mechanic’s Lien

• Who is Entitled to a Lien? • When to File/Record • Where to File/Record • How to Serve • Amount of Lien • Property Subject to the Lien • Furnishing Information • Verified or Notarized • Priorities • Lien Release Bond • Miscellaneous Issues

Section Contents—Lawsuit to Foreclose Lien

• Introduction • When • Where to File • Arbitration • Need a Lawyer?


General Notes

Be Careful: The courts consider a mechanic’s lien to be a privilege and not a right. You

receive its benefits only if you strictly adhere to the state law requirements. Bottom line: miss a deadline by one day and you have lost it. Unlike other areas of the law where you can argue equities, find technical exceptions, and lawful excuses, there is no forgiveness here. In this case, knowledge is not only power, it’s a necessity.

In this State you will be writing down dates for at six documents: a) Third Month Notice; b) Second Month Notice; c) Notice of Contractual Retainage; d) Notice of Specially Fabricated Items; e) Mechanic’s Lien; and f) lawsuit to foreclose the mechanic’s lien. Write down all the deadlines in your calendar. Use a highlighter or red pen. If you have a staff, use a “fail safe” system by doubling up and putting it in their calendar also. This reminds you twice. The first calendar entry should be two weeks before the due date as a preliminary reminder. On the second calendar entry, do a white lie to yourself. Put the due date as one week before it is actually due as insurance in case you get busy or need legal advice. Time is money. You will waste a lot of valuable time running around and doing it at the last moment, as opposed to doing it early. Because of the complexity of these notices, it is highly recommended that you consult the chart on this website which is called: ”What Forms to Use and When“, for a detailed description of what forms to use and their time limitations.

PRELIEN NOTICES This state requires Notices be sent out before the mechanic’s lien is filed/recorded. The basic information on these notices is as follows: There are many different kinds of pre-lien notices in Texas. Because they vary, including their time limitations and whether the project is residential or commercial, they will described separately below. Purpose of the Notices: One of the biggest dangers to an owner is paying the general, who in turn,

does not pay subs or suppliers. If this happens, the owner can pay twice if those subs later file a mechanic’s lien. The purpose of the various Texas pre-lien Notices is to prevent such a result. It informs the owner of one’s lien rights and that the sub/supplier has not or may not be paid. After an owner receives the Notice, he or she withholds monies unpaid to the sub/supplier from the general—whether the unpaid amount under the base contract or the retention--they are in essence frozen. These monies are

paid only upon settlement or if the sub fails to timely file a lien.


How to Serve? All the Notices are served by certified mail. How Do They Work?

The notices described above, including the Notice of Specially Fabricated Items, Notice of Contractual Retainage, Third Month Notice, and the Second Month Notice are all called “fund trapping notices”. The reason is that if done properly, they “trap” money that is still in the possession of the owner and prevent it from being paid to the general contractor if there are outstanding claims of subcontractors or suppliers. It is like having the owner hold money for your benefit. What would you rather have: a lien on the property that requires the time and expense of bringing a lawsuit to foreclose or money sitting in an account to cover your unpaid bills? These are powerful devices, but they have their limitations: they are good only if the owner still owes the general at the time he/she receives the Notice. If the owner has already paid the general, there is nothing left to “hold”. That is why it is important not to wait too long to serve. In the case of the Third and Second Month Notices, a long time is given to serve—between two and three months. This has the effect of giving a claimant a false sense of security—but watch out--the money may be gone in the meantime. This prevents the owner paying twice. A classic dilemma is when the owner pays the general but the money does not filter down to the subs and suppliers. A sub then files a mechanic’s lien and requests the owner to pay twice, by remitting those funds directly to them. In Texas, unless a second or third month notice is sent, the owner has a complete offense and does not have to pay twice. The lesson is clear. Send out your notices so you can eliminate this owner defense. The best advice: serve your prelien notices early. How early should that be? Recommendation: on the 30th day after non-payment. Here is a common example. You work in February and send a standard billing on March 1st. It is now April 1 with no payment. Send out a second copy of your invoice, marked unpaid, and in the same envelope send the prelien notice (whether a third month or second month notice). Don’t wait any longer. Remember, these notices have to be served no later than the 15th of the second or third month, but they can be served earlier! For example, take the second month notice. It is not a notice that is served on the second month—it is served no later than the second month. These notices are sent only after non-payment. Some people are confused in thinking the notices have to go out every month, regardless of whether you have been paid. In some states, such as California, you serve prelien notices at the beginning of the job whether not you have been paid. In Texas these are like collection notices and only go out during periods of nonpayment.


What about sending the second and third month notice at the beginning of the job—in other words, serving them early and getting them out of the way so you do not forget? As stated above, this would not be required. It would also cause a public relations nightmare because the owner and general would be asked to trap funds before they have the obligation to pay. Does an owner typically abide by the demand to withhold funds? You bet your boots. The language in these notices is strong and states that if money is not withheld to a sub or supplier, there can be both a mechanic’s lien and holding the owner personally liable.

These notices are also a prerequisite for you eventually filing a mechanic’s

lien. As you know, this allows a lien to be placed on the owner’s property and if it remains unpaid, to bringing a lawsuit to foreclose.

So in Texas, the owner can be personally liable for the debt of a sub or

supplier. This happens if the owner fails to withhold money due the general after receiving the Notices described above. This is a material difference from the majority of states that will not allow the owner to be personally liable—only to subject the property to a lien.

Putting this all together, they are like a double barrel—trapping the money

and holding the owner personally liable--like a “Stop Notice”. In some states, such as California, a subcontractor or supplier can serve the owner with a Stop Notice which freezes the funds in the hands of the construction lender or owner. Texas does not use that same phrase, but it has the same effect. Thus, once an owner receives a “funds trapping” notice, unless the claim is settled or released, he or she must withhold sufficient monies to take care of your claim. Unless settled or otherwise released, the money has to be held until the time expires for filing a mechanic’s lien. Of course, if you file the mechanic’s lien on time, the money must continue to be withheld.

What about retention? There is also good news in this regard. Section

53.101 of the Property Code requires an owner to withhold at least 10% for 30 days after completion so there will be funds available.

Practically speaking, when should I serve them? To be safe, serve the Notices at a point in which your invoices are 30 days delinquent. As an example, assume you work in April and send out your invoice on May 1st. You continue to do work but are not paid. On June 1st when you send out your invoice for the unpaid work for April and May, include in the same envelope your Notice for unpaid April work. There is simply no reason to wait any longer.

The following tables will help you determine the time deadlines for service of

the Third and Second Month Notices:


THIRD MONTH NOTICE TIME DEADLINES

UNPAID LABOR OR MATERIALS FOR DATE NOTICE IS SERVEDTHIS MONTH January April 15 February May 15 March June 15 April July 15 May August 15 June September 15 July October 15 August November 15 September December 15 October January 15 November February 15 December March 15 Important Note: For residential projects in which the owner occupies the property (as opposed to residential work for a developer), the above time deadlines are shortened by one month.

SECOND MONTH NOTICE TIME DEADLINES UNPAID LABOR OR MATERIALS FOR DATE NOTICE IS SERVEDTHIS MONTH January March 15 February April 15 March May 15 April June 15 May July 15 June August15 July September 15 August October 15 September November 15 October December 15 November January 15 December February 15 Important Note: For residential projects in which the owner occupies the property (as opposed to residential work for a developer), the above time deadlines are shortened by one month.


As an example, assume you have performed services in April and are unpaid. This could be for services during any period in that month—April 1 through 16; April 10 through 25, April 17 through 30, etc.—any periods for that month. Your Three Month Notice is given on the 15th of the third month following the month those services were performed.

In summary, if the notices are properly sent and the owner retains a 10% retention, there

may not be the requirement of a mechanic’s lien in the first place. You will have trapped the funds which can be paid rectally to you. It also prevents a mechanic’s lien from being “wiped out” after a construction lender forecloses on the property. Being paid directly eliminates filing the lien in the first place.

SUMMARY OF PRELIEN NOTICES—RESIDENTIAL

Subs and suppliers who have a contract with the general (first tier subs--suppliers).

• Second Month Notice (Notice of Unpaid Balance—residential) • Notice of Contractual Retainage (sub)

Sub-subs and suppliers who have a contract with a sub (2nd tier subs—suppliers and below).

• Second Month Notice (Notice of Unpaid Balance—residential) • Notice of Contractual Retainage (sub-sub) • (Same rules apply to sub-sub-subs—in other words, third and below tiers)

Suppliers of specially fabricated items.

• Notice of Specially Fabricated Items • Same Notices as above, depending on whether you are a first or second tier supplier

Generals.

• No prelien Notices required

SUMMARY OF PRELIEN NOTICES—COMMERCIAL

Subs and suppliers who have a contract with the general (first tier subs--suppliers).

• Third Month Notice (Notice of Unpaid Balance and Demand for Payment-commercial) • Notice of Contractual Retainage (sub)


Sub-subs and suppliers who have a contract with a sub (2nd tier subs—suppliers and below).

• Second Month Notice (Notice of Unpaid Balance-commercial) • Third Month Notice (Notice of Unpaid Balance and Demand for Payment-commercial) • Notice of Contractual Retainage (sub-sub) • (Same rules apply to sub-sub-subs—in other words third and below tiers)

Suppliers of specially fabricated items.

• Notice of Specially Fabricated Items • Same Notices as above, depending on whether you are a first or second tier supplier

Generals.

• No prelien Notices required

RESIDENTIAL PROJECTS

Prelien Notices for All Subcontractors and Suppliers

(1st, 2nd, and below tiers—your contract is with a general contractor or another subcontractor)

Name of Notice: Second Month Notice (Notice of Unpaid Balance—residential) Who Must Use this Notice: All subcontractors and material/equipment suppliers who have a direct

contract with the general contractor or another subcontractor on a residential project. Also, as to general contractors who do not have a direct contract with the owner.

Why is it Called a Second Month Notice? Because it must be served no later than the 15th day of the second

month following every month which has unpaid work. The name of the Notice is confusing to many people because it implies you served it two months after nonpayment. This is not the case. You can serve it anytime after your invoices are unpaid, but not later than the 15th day of the second month. In fact, if sent earlier than the second month (and this is usually what happens), some people ask: “It is a second month notice–why are you sending it now, it is not the second month?” For this reason, the Notice is titled: “Notice of Unpaid Balance”. Actually, it is nothing more than a glorified demand for payment or follow-up invoice. In fact,


some people simply send a letter demanding payment with their last invoice attached. But, the danger of doing this is that it will be invalid unless it includes special statutory language. That is why the forms on this website are in the form of a formal notice with that special language.

When? It cannot be any later than the 15th day of the second month following

any month that has unpaid work. For example, assume you have performed work in January and February, but thus far have only been paid for January. For the unpaid work in February, you must serve the Notice no later than April 15. The same rule applies for any other unpaid month. So, if you haven’t been paid for June, you would serve the notice no later than August 15.

And remember, it doesn’t make any difference what days of the month

you performed your unpaid work. For example, it makes no difference if you worked the first or the last week of February—you still have until April 15. You count ahead to the fifteenth day of the second month regardless. Finally, it is not two months from the date you last performed the work—in other words if you last worked on June 20, you would not be filing your Notice on August 20 (instead it would be August 15).

Nevertheless, it is recommended you send it earlier than the deadline.

First send a standard invoice or billing and if unpaid within two weeks, serve the Notice. For example, if you have performed services in February, send your invoice on March 1st, and if it has not been paid by March 15, send the Notice right away and do not wait until April 15.

Why Serve it so Early? In Texas, a lien is good only in situations in which the owner is still

holding money due the general contractor when the Notice is received. If the money has already been paid to the general contractor before the Notices received, you are too late to file a lien and will end up with nothing except the right to sue the general contractor for breach of contract. For this same reason, an owner will be subjected to a mechanic’s lien only if they ignore the Notice at a time in which they are still holding the money.

Does it Have to be Served Month After Month as Long As I Am Unpaid? Yes, unfortunately. It has to be served by the 15th day of the second

month for every unpaid month. If the general contractor continues to withhold money, you would have to file it for successive months. Again, assume you have been unpaid for February and March. You would have to send out a separate Notice for February and a separate notice for


March. Of course, you could “lump the two months together” and serve

one Notice by April 15, but be careful about waiting too long. Who to Serve? Serve both the owner and general contractor. Verified or Notarized?: The notice does not have to be verified or notarized. It is in the form of a

letter and is simply signed by the claimant. Is an Invoice Attached? It is not required by statute but is nevertheless recommended. There’s

less chance of your being paid if there is uncertainty as to the items being billed. Invoices neatly set out that information. It is also human nature to think of any excuse possible not to pay. A well presented invoice prevents that type of defense.

-----o------

Name of Notice: Third Month Notice (Notice of Unpaid Balance and Demand for Payment— residential) Who Must Use this Notice: All subcontractors and material/equipment suppliers who have a direct

contract with the general contractor or another subcontractor on a residential project. Also, as to general contractors who do not have a direct contract with the owner.

Why is it Called a Third Month Notice? Because it must be served no later than the 15th day of the third month

following every month which has unpaid work. The name of the Notice is confusing to many people because it implies you served it three months after nonpayment. This is not the case. You can serve it anytime after your invoices are unpaid, but not later than the 15th day of the third month. In fact, if sent earlier than the third month (and this is usually what happens), some people ask: “It is a third month notice–why are you sending it now, it is not the third month?” For this reason, the Notice is titled: “Notice of Unpaid Balance and Demand For Payment”. Actually, it is nothing more than a glorified demand for payment or follow-up invoice. In fact, some people simply send a letter demanding payment with their last invoice attached. But, the danger of doing this is that it will be invalid unless it includes special statutory language. That is why the forms on this website are in the form of a formal notice with that special language.


Is This Required By Texas Law? The Second Month Notice (residential) is absolutely required and clearly

stated in the Texas Property Code. But, serving a Third Month Notice on residential property is not as clear. Texas Property Code Section 53.251(b) in essence states that you must serve a Second Month Notice and in addition (and not in lieu of), comply with other statutory requirements stated elsewhere in the Code. Other provisions of the code require a Third Month Notice for commercial property:

“A person must comply with this subchapter in addition to the other applicable provisions of this chapter to perfect a lien that arises from a claim resulting from a residential construction project”.

Because this language is somewhat vague, it is recommended that you seek the advice of a construction attorney for more details. NationalLienLaw takes the position that the Third Month Notice is not required. Section 53.252(b) requires a Second Month Notice to be given to the owner and original contractor. In Texas, service on both parties typically refers to a Third Month Notice (53.056(b)). It would make no sense to require a claimant to serve the Notice within two months and then turn around and serve the identical Notice on the third month. Logically, the Second Month Notice for residential replaces other notices, including the Third Month Notice. 2nd tier subs and suppliers on commercial property are also required to serve a Second Month Notice but again, it would make no sense to serve the same notice twice at the same time. On the other hand, there are those that espouse the theory: when in doubt serve the Notice. It certainly wouldn’t hurt serving that follow-up Third Month Notice.

When? It cannot be any later than the 15th day of the third month following any

month that has unpaid work. For example, assume you have performed work in January and February, but thus far have only been paid for January. For the unpaid work in February, you must serve the Notice no later than May 15. The same rule applies for any other unpaid month. So, if you haven’t been paid for June, you would serve the notice no later than September 15.


you performed your unpaid work. For example, it makes no difference if you worked the first or the last week of February—you still have until


May 15. You count ahead to the fifteenth day of the third month

regardless. Finally, it is not three months from the date you last performed the work—in other words if you last worked on June 20, you would not be filing your Notice on September 20 (instead it would be September 15).


First send a standard invoice or billing and if unpaid within two weeks, serve the Second Month Notice. For example, if you have performed services in February, send your invoice on March 1st, and if it has not been paid by March 15, send the Second Month Notice right away. If it is not paid by March 31, send right away the Third Month Notice with another copy of the invoice.



Does it Have to be Served Month After Month as Long As I Am Unpaid? Yes, unfortunately. It has to be served by the 15th day of the third

month for every unpaid month. If the general contractor continues to withhold money, you would have to file it for successive months. Again, assume you have been unpaid for February and March. You would have to send out a separate Notice for February and a separate notice for March. Of course, you could “lump the two months together” and serve one Third Month Notice by May 15, but be careful about waiting too long.

Who to Serve? Serve both the owner and general contractor. Is an Invoice Attached? It is not required by statute but is nevertheless recommended. There’s


-----o-----


Name of Notice: Notice of Contractual Retainage (for both subs and sub-subs). NEW

NOTICE AS OF 2011. Rights to Retainage: Texas Property Code Section 53.101 requires that an owner retain 10% of

the contract price or 10% of the value of the work from the general contractor for at least 30 days after completion. Section 53.102 states this must be for the benefit of a general contractor, as well as subcontractors and suppliers under their contracts.

In addition, it is industry standard for a 10% retention to be in most

construction agreements, enforceable under basic contract law. So what notices are required to perfect the right to retention? It is called a

Notice of Contractual Retention. That Notice previously was served on the owner and general by the 15th day of the second month after the month in which the unpaid services were performed. If not, no retention could be included in a mechanic’s lien. Unfortunate, many contractors either did not know about this Notice or decided not to serve it. After all, serving a notice well before completion seemed to many to be an inadvisable. Frankly, this remedy did not make a lot of sense.

Fortunately the law has changed. Effective for contracts entered into

on or after September 1, 2011, under section 53.057(b), the Notice can now be served within 30 days of the claimant’s completion of their contact. The good news is the Notice can now be served at the end of the project, but as seen in the next paragraph, the bad news is it may shorten the time to file mechanic’s lien.

Caution: The general contractor can shorten the time of filing a

mechanic’s lien for retention. Section 53.052 requires a lien to be filed on the 15th day of the fourth month (three months for residential) after completion of your contract. But a general contractor may shorten this. under 53.057(f). The time to file a lien is reduced to 40 days after receipt by a sub of an affidavit of completion, termination, or abandonment of the project. Be on the lookout for such an affidavit.

Alternatively, the time to file a lien can be shortened another way. The

owner can send a notice under Section 53.057(g) demanding the filing of a lien and the claimant must file such a lien within 30 days of that demand. Parenthetically, the demand must have a name and address of the owner and a description of the property so the lien can be properly recorded.

You can then include the retention amount in the regular mechanic’s lien

filed by the 15th day of the fourth month. Service is on the owner and general if you are a sub; to both the owner, general, and your direct subcontractor if you are a sub-sub.


Who Must Use this Notice: Subcontractors and equipment/material suppliers who have a direct

contract with the general or another subcontractor. Also, as to general contractors who do not have a direct contract with the owner.

What is the Purpose of the Notice?: As is commonly known, almost any project has a 10% retention on the

base contract amount. Thus, if the contract price is $10,000.00, there would be a retention of $1,000.00. The idea is that this ”hold back” amount is paid at the end of the job after the owner is assured all work has been satisfactorily completed. If not, the 10% is used to correct defective or incomplete items, including hiring a back-charge contractor. So, if there are progress draws, they are paid only to the extent of 90%. If you are not rightfully paid the retention, this can be included in your mechanic’s lien. But the State of Texas does not want you to go to the hassle of notifying the owner on each invoice of your right to receive a lien on the retention. So, they require it to be served only once at the beginning of the job--so as to apply to the overall job (Texas Property Code 53.057 (b) and (e)). There is some information being given that this notice has to be served every month while you’re on the job. This is not the case.

When? As of 2011 it is served within 30 days of the completion of your

contract. Notice it is completion of your portion of the contract, not the overall project. Under previous law, it was no later than the 15th day of the second month after first furnishing your labor or materials. So you do not forget sending it out, it is recommended you serve it after your contract is signed. If the owner or general contractor complains or ask questions why are you are sending out the notice at the beginning of the job before the obligation to make payment, simply inform them it is not a reflection on their integrity but is simply a requirement under Texas law.

If you forget serving it at the beginning of the job, simply include it in the

same envelope in which you send out your second month or third month notice. Or alternatively, when you send the first unpaid invoice.

Does it Have to be Served Month After Month? No. You serve only once at the beginning of the job. This covers the

entire retention for the entire job.


Who to Serve? If your contract is directly with the general contractor, you simply serve

the owner. If your contract is directly with another subcontractor, you serve both the owner and the general contractor.

Is an Invoice Attached? No. the 10% retention is not based on the unpaid balance under your

invoices, but the overall contract amount with change orders. In fact, it might be confusing if you were to attach an invoice for unpaid work with the Notice because the owner might think the10% retention applied to the invoice amount instead of the overall contract amount.

Verified or Notarized?: The notice is in the form of a demand letter and, therefore, does not need to

be verified or notarized.

COMMERCIAL PROJECTS

Pre-lien Notices for 1st Tier Subcontractors and Suppliers

(Your contract is with a general contractor)

Name of Notice: Third Month Notice (Notice of Unpaid Balance—commercial) Who Must Use this Notice: All subcontractors and material/equipment suppliers who have a direct

contract with the general contractor on a commercial project. Also, as to general contractors who do not have a direct contract with the owner.

Why is it Called a Third Month Notice? Because it must be served no later than the 15th day of the third month

following every month which has unpaid work. The name of the Notice is confusing to many people because it implies you served it three months after nonpayment. This is not the case. You can serve it anytime after your invoices are unpaid, but not later than the 15th day of the third month. In fact, if sent earlier than the third month (and this is usually what happens), some people ask: “It is a third month notice–why are you sending it now, it is not the third month?” For this reason, the Notice is titled: “Notice of Unpaid Balance and Demand For Payment”. Actually, it is nothing more than a glorified demand for payment or follow-up invoice. In fact, some people simply send a letter demanding payment with their last invoice attached. But, the danger of doing this is that it will be invalid unless it includes special statutory language. That is why the forms on this website are in the form of a formal notice with that special language.



month that has unpaid work. For example, assume you have performed work in January and February, but thus far have only been paid for January. For the unpaid work in February, you must serve the Notice no later than May 15. The same rule applies for any other unpaid month. So, if you haven’t been paid for June, you would serve the notice no later than September 15.


you performed your unpaid work. For example, it makes no difference if you worked the first or the last week of February—you still have until May 15. You count ahead to the fifteenth day of the third month regardless. Finally, it is not three months from the date you last performed the work—in other words if you last worked on June 20, you would not be filing your Notice on September 20 (instead it would be September 15).


First send a standard invoice or billing and if unpaid within two weeks, serve the Notice. For example, if you have performed services in February, send your invoice on March 1st, and if it has not been paid by March 15, send the Notice right away.







less chance of your being paid if there is uncertainty as to the items

being billed. Invoices neatly set out that information. It is also human nature to think of any excuse possible not to pay. A well presented invoice prevents that type of defense.

-----o-----

Name of Notice: Notice of Contractual Retainage (for both subs and sub-subs). NEW LAW

AS OF 2011. See section above for details of the new law.

Pre-lien Notices for 2nd Tier and Below Subs and Suppliers (Your contract is with a subcontractor)

Name of Notice: Second Month Notice (Notice of Unpaid Balance—commercial) Who Must Use this Notice: All subcontractors and material/equipment suppliers who have a direct

contract with another subcontractor on a commercial project. Why is it Called a Second Month Notice? Because it must be served no later than the 15th day of the second

month following every month which has unpaid work. The name of the Notice is confusing to many people because it implies you served it two months after nonpayment. This is not the case. You can serve it anytime after your invoices are unpaid, but not later than the 15th day of the second month. In fact, if sent earlier than the second month (and this is usually what happens), some people ask: “It is a second month notice–why are you sending it now, it is not the second month?” For this reason, the Notice is titled: “Notice of Unpaid Balance”. Actually, it is nothing more than a glorified demand for payment or follow-up invoice. In fact, some people simply send a letter demanding payment with their last invoice attached. But, the danger of doing this is that it will be invalid unless it includes special statutory language. That is why the forms on this website are in the form of a formal notice with that special language.

When? It cannot be any later than the 15th day of the second month following

any month that has unpaid work. For example, assume you have performed work in January and February, but thus far have only been paid for January. For the unpaid work in February, you must serve the Notice no later than April 15. The same rule applies for any other unpaid


month. So, if you haven’t been paid for June, you would serve the notice no later than August 15.


you performed your unpaid work. For example, it makes no difference if you worked the first or the last week of February—you still have until April 15. You count ahead to the fifteenth day of the second month regardless. Finally, it is not two months from the date you last performed the work—in other words if you last worked on June 20, you would not be filing your Notice on August 20 (instead it would be August 15).


First send a standard invoice or billing and if unpaid within two weeks, serve the Notice. For example, if you have performed services in February, send your invoice on March 1st, and if it has not been paid by March 15, send the Notice right away and do not wait until April 15.



Does it Have to be Served Month After Month as Long As I Am Unpaid? Yes, unfortunately. It has to be served by the 15th day of the second

month for every unpaid month. If the general contractor continues to withhold money, you would have to file it for successive months. Again, assume you have been unpaid for February and March. You would have to send out a separate Notice for February and a separate notice for March. Of course, you could “lump the two months together” and serve one Notice by April 15, but be careful about waiting too long.

Who to Serve? Serve only the owner (not the general contractor). Verified or Notarized?: The notice does not have to be verified or notarized. It is in the form of a

letter and is simply signed by the claimant.


Is an Invoice Attached? It is not required by statute but is nevertheless recommended. There’s


-----o------

Name of Notice: Third Month Notice (Notice of Unpaid Balance and Demand for Payment— commercial) Who Must Use this Notice: All subcontractors and material/equipment suppliers who have a direct

contract with another subcontractor on a commercial project. Why is it Called a Third Month Notice? Because it must be served no later than the 15th day of the third month

following every month which has unpaid work. The name of the Notice is confusing to many people because it implies you served it three months after nonpayment. This is not the case. You can serve it anytime after your invoices are unpaid, but not later than the 15th day of the third month. In fact, if sent earlier than the third month (and this is usually what happens), some people ask: “It is a third month notice–why are you sending it now, it is not the third month?” For this reason, the Notice is titled: “Notice of Unpaid Balance and Demand For Payment”. Actually, it is nothing more than a glorified demand for payment or follow-up invoice.

In fact, some people simply send a letter demanding payment with their last invoice attached. But, the danger of doing this is that it will be invalid unless it includes special statutory language. That is why the forms on this website are in the form of a formal notice with that special language.


month that has unpaid work. For example, assume you have performed work in January and February, but thus far have only been paid for January. For the unpaid work in February, you must serve the Notice no later than an May 15. The same rule applies for any other unpaid month. So, if you haven’t been paid for June, you would serve the notice no later than September 15.


you performed your unpaid work. For example, it makes no difference if you worked the first or the last week of February—you still have until May 15. You count ahead to the fifteenth day of the third month regardless. Finally, it is not three months from the date you last


performed the work—in other words if you last worked on June 20, you would not be filing your Notice on September 20 (instead it would be September 15).


First send a standard invoice or billing and if unpaid within two weeks, serve the Notice. For example, if you have performed services in February, send your invoice on March 1st, and if it has not been paid by March 15, send the Notice right away.







-----o-----


Name of Notice: Notice of Contractual Retainage (for both subs and sub-subs). NEW LAW

AS OF 2011. See discussion above as to details.

Prelien Notice for Suppliers of Specially Fabricated Items (Residential and Commercial).

Name of Notice: Notice of Specially Fabricated Items. Who Must Use this Notice: Material suppliers only (not general contractors or subs) that fabricate a

special item that cannot be used in any other projects. These persons are also required to service the Notice of Contractual Retainage, along with either a Third Month Notice or Second Month Notice.

When: See Time Deadlines table. How to Serve: Serve the owner and general contractor by certified mail, return receipt

requested. Verified or Notarized?: Since it is in the form of a demand letter, it does not need to be notarized or

verified.

MECHANICS’ LIENS Who is Entitled to a Lien: A mechanic’s lien is primarily for general contractors, subcontractors,

laborers, as well as material/equipment suppliers. But it also covers architects, engineers, and surveyors. Material/equipment suppliers must have their materials delivered to or used in the project in order to receive a lien. The exception is specially-fabricated materials that receive a lien even if the material is not delivered or incorporated.

When to File/ Record: See Time Deadlines table. The basic rule for a general is to file the lien on the 15th day of the fourth

month (third month for residential) after completion of the overall project. The basic rule for a sub or supplier is to file the lien on the 15th day of the

fourth month (third month for residential) after completion of your specific contract.


Be careful: The time can be shortened: A. 40 days. A general contractor may shorten this for a lien that claims

unpaid retention under 53.057(f). The time to file a lien is reduced to 40 days after receipt by a sub of an affidavit of completion, termination, or abandonment of the project. Since most mechanic’s liens include retention, and you typically only file one lien, this can be very important. Be on the lookout for such an affidavit.

B. 30 days. The owner can send a notice under Section 53.057(g)

demanding the filing of a lien and the claimant must file such a lien within 30 days of that demand. Parenthetically, the demand must have a name and address of the owner and a description of the property so the lien can be properly recorded.

Where to File/Record: The Lien Affidavit must be filed with the county clerk of the county in which

the property is located. How to Serve: Within 5 days of filing the Lien Affidavit, service is made by certified mail,

return receipt requested. If you are a general contractor, you only need serve the owner. For all others, you must serve the owner and the general contractor.

Amount of Lien: Primarily for unpaid labor, material, and equipment supplied. Attorney’s

fees, although they cannot be in the lien, can be awarded to the successful party in a lien foreclosure action.

Property Subject to the Lien: A mechanic’s lien applies only to private projects. No lien is allowed in

public projects against government property.

A lien in an urban area extends to the entire lot upon which the work is done, while a lien in rural areas is limited to a total of 50 acres.

Furnishing Information: Upon request, the general should furnish others with information about the

owner so the required notices and lien can be filled out properly. Verified or Notarized?: A verified notice simply means you sign it and are representing the

contents are true and accurate. A notarized notice is signed in front of a Notary Public or other official. The lien must be both notarized and verified. Note also that the verification must be by someone who has personal knowledge of the monies claimed.


Priorities: A mortgage has priority over mechanics’ liens only if it is recorded before

the “first spade of dirt is turned”. In other words, if it is recorded before any work begins on the project. On the other hand, if it is recorded after work begins by any persons or trade, the lien claimants take priority. The only exception is that architects, engineers, and surveyors have a lien priority based on when their Lien Affidavit is recorded. Since all lien claimants, whether general contractors, suppliers, or subcontractors, have the same priority which relates back to the time the work first commences, in most cases contractors have priority over design professionals.

Lien Release Bond: Once a lien is recorded against the property, the owner can clear it by

posting a surety bond for twice the amount of the lien claim up to $40,000 and 1½ times the amount if the lien exceeds $40,000. You then proceed in

court to prove your case and if you prevail, you will receive your money directly from the surety company.

Miscellaneous Issues:

Residential Contracts.

Residential construction contracts between the owner and general contractor must be in writing before the project starts and a copy of the contract must be filed with the county clerk. There are also special fund trapping letters which apply, with special statutory language of warning to the owner. The correct form must be used in residential projects. Subs and suppliers that do not have a direct contract with the owner, are also required to serve both the general and the owner with a special letter on residential projects that warns the owner: 1) the owner and that persons property can be personally liable if the claims are not paid, 2) the owner is required to withhold funds due the general after receiving a timely pre-lien notice, and 3) the owner is must hold the required retention for the benefit of the claimants.

Notice of Completion: An owner can file with the county clerk a “Notice of Completion”. After

filing, it must be sent to the general contractor and to every lien claimant who has sent out notices for unpaid claims. Finally, a subcontractor or supplier who requests a copy of the Notice of Completion must receive one. Except as to a general contractor, copies of the Notice of Completion must be sent within 10 days of receiving the subcontractor’s notice letter (letter requesting a copy of the Notice of Completion). These copies must be sent by certified mail. The actual form is titled, “Affidavit of Completion”.


In many states, the time in which to file a mechanic’s lien starts running after the Notice of Completion is filed or recorded. Not so in Texas. Regardless of when the Notice of Completion is filed, lien claimants on non-residential property must file on the 15th day of the 4th calendar month after completing their portion of the work (the 3rd calendar month for residential).

Lien Waivers: NEW LAW IN 2012. For contracts signed from and after January 1, 2012, Texas has four new statutory forms of lien waiver under Sections 53.281 and 53.282. It rectified the past problem of signing a waiver indicating full payment, but never receiving the promised check or getting one that never cleared. In the meantime third parties would rely upon the waiver and the contractor found it almost impossible to extricate from that waiver. Now, for the waiver to be valid, it must be signed by the claimant or authorized representative, on a standard statutory form, and notarized. Additionally as to conditional waivers, the statute makes it clear there must be “evidence of payment” for the waiver to be valid. The waivers follow the California scheme and can be summarized as follows: Step1: First Progress Draw--Conditional Waiver on Progress Payment #1. The contractor signs the waiver and receives progress draw #1 waiving lien rights, but “conditioned” on receipt of good funds. Step 2: Second Progress Draw —a) Unconditional Waiver on Progress Payment #1 and b) Conditional Waiver on Progress Payment #2. At this point, the check on draw #1 has cashed and the contractor signs an unconditional. At the same time, contractor signs a waiver on draw #2, also conditioned on receipt of good funds. This process continues draw by draw throughout the project until time to receive final payment. Step 3. Final Payment--Conditional Waiver on Final Payment. The contractor receives the final payments and signs a waiver for the entire job, conditioned on the funds clearing the bank. Step 4. Final Payment Close Out--Unconditional Waiver on Final Payment. The funds have now cleared the bank and the contractor signs a final and unconditional waiver. As a result, a contractor does not waive lien rights unless signing the statutory form with the right language. Exception: Under new Section 53.282(a)(3) there can be a “no lien” contract between the owner and the general contractor or between the general contractor and sub, as to residential property defined as single-family, townhouse, or do duplex (existing home, spec, or custom). But the contract waving future lien rights must be signed before the work starts. However, no lien contract do not apply to material suppliers who do not perform labor or installation (53.282 (c)). So watch what you sign. As to an unconditional waiver, partial or final, you cannot be forced to sign one unless it is substantially in the statutory form. And, even if signed, it is ineffective if the payment does not clear (53.283). But what if you sign an unconditional waiver through a certain date and there are contested and unpaid change orders? Do you waive all claims as of that date? Can you later


file a lien for these amounts? You can, and it will not be considered slander of title. But under Section 53.282(b), the owner or general contractor may send a letter explaining why the waiver was valid, with a copy of the waiver and a request to release it within 14 days. If not so released, it will be invalid. A highly unsatisfactory result as being one-sided. What if the demand to release is not in good faith or the contractor has a legitimate argument for the change order? Attorneys fees: The prevailing party in an action to enforce a mechanic’s lien is typically allowed attorneys’ fees only if there is an attorney’s fees clause in the contract. Not so in Texas. Under new Section 53.156 as of August of 2011, the court may award attorney’s fees and costs to either party as “equitable and just”. As to a residential homeowner, the court is not required to award such costs, even if that person loses! Regrettably, under the American system, there is still a predisposed mindset that the homeowner is more innocent than the contractor. Take it from our construction attorney who has tried over 400 cases--this is definitely not the case. In fact, by and large, contractors are more honest than homeowners. Homeowners typically try to get something for nothing off the sweat of the brow of the contractor. Is anyone listening?

LAWSUIT TO FORECLOSE LIEN

Introduction: Your lien is not valid forever. Because it directly affects the owner’s title, it has a limited shelf life and must be enforced within a short period of time. That enforcement is done by filing a lawsuit to foreclose. Just like the time

deadlines for a Pre-Lien or Mechanic’s Lien, the courts strictly construe these time limits which are called statutes of limitation. Again, if you are literally one day late, the lien is ineffectual.

When: For non-residential projects, within 2 years of the lien claimant’s deadline to

file his or her mechanic’s lien, or 1 year from completion or termination of the entire construction project. For residential projects, it is 1 year from the lien claimant’s deadline for filing a mechanic’s lien, or 1 year after completion or termination of the entire project.

Where to File: In the county where the project is located. Arbitration: Many construction contracts state that all disputes will be decided by

binding arbitration, as opposed to a court proceeding by judge or jury. In fact, it has long been a tradition to do so in the construction industry. Arbitration is usually quicker and less costly, especially because it cuts down on expensive discovery. The decision is final and binding, with no right to appeal. You lose your right for a jury trial, but few contractors want that in the first place. You usually pick an experienced construction


attorney or retired judge to hear the case in their conference room. It is just

like a court proceeding with the same general rules of evidence, but more informal.

On the other hand, you can only foreclose your lien through a court proceeding, not arbitration. So, how do you keep your arbitration rights and at the same time preserve your lien rights? Simple. You bring a lawsuit to protect the lien and then immediately request the court to stay the court proceedings. When arbitration is done, you go back to court and turn the arbitration award into a judgment.

Need a Lawyer?

In this country, every individual has the statutory right to represent themselves. This means they can prepare all necessary papers, appear at hearings, and actually try the case. In so doing, the court considers you to be acting either in “pro se” or “pro per”. Before making this decision, consider the following factors:

1. You are a professional and thoroughly know the ins and

outs of not only the construction industry but of the project itself. The best lawyer on his or her best day will probably not know more than 50% of what you know.

2. How is your public speaking abilities? If you are

uncomfortable speaking to a group, you will even more uncomfortable in court or arbitration. You could be the “sharpest wit in town” but may not be able to present your arguments. Remember, appearing uncomfortable is perceived as having deficiencies in your case. People usually think that if you are not comfortable about your own facts, then they must not be that strong.

3. If the other side has a lawyer, you might want to think twice about representing yourself. You will certainly know the facts quite well, but you may be blindsided by legal technicalities.

4. You may also want to think twice if this is a really nasty and emotional case. In other words, if the other side is going for “blood”. Having a lawyer can shelter you from this emotional trauma. No matter how strong you are, lawsuits are taxing not only on your time, but on your physical and emotional energies.

5. If you have a good case in which you have complied with technicalities and performed good work, you are essentially engaging in a collection action. These actions are typically very simple because there are few defenses or defects alleged by the other side. It makes it easier for you to represent yourself because it is more a question of when and how much they will pay as opposed to whether you will win at all.


6. If you have a binding arbitration provision, you may consider representing yourself. These proceedings are much more informal and the arbitrator tends to give you more leeway. There are also fewer rules and not they are usually not quite as strict.

7. You could consider representing yourself but get advice along the way from a lawyer. It is much cheaper that way. On the other hand, the lawyer cannot watch over every move and you might slip up. Many times lawyers can also help you with preparing the forms, simply putting your name on the pleading. You can also bring in your lawyer at the end to actually try the case.

8. Judges and courts do not give legal advice. They only help you with what forms to use. However, clerks can be invaluable in steering you in the right direction as far as where to file, time limitations, the nature of the form or pleading, etc. But, remember when it comes right down to the ultimate advice, they cannot help you.

9. Judges usually treat you the same as an attorney which means they expect strict compliance with the rules. Although some judges give you more slack, don’t count on it. 10. The biggest dilemma is whether you should hire an attorney for a smaller case, typically in the $5,000 to $10,000 range. You have to watch this because you may eat up that amount in attorney’s fees. You never make money on lawsuits, only lawyers do. Try to settle for the best price you can get and move on.

Documents

SUMMARY OF MECHANICS’ LIEN LAW · pays the general but the money does not filter down to the subs and suppliers. A sub then files a mechanic’s lien and requests the owner to pay