Warning: All information contained within this
data base is subject to change at any time by the various states
and is not guaranteed in any way by Lienwriter.com, LLC. Nor
does Lienwriter.com, LLC. assume any liability or responsibility
for its content. Please use in conjunction with advice from
your attorney.
Note: This information is limited in scope and
applies only to this document. Please see the general information,
all forms memo, and the general information memo for this type
of document, for additional information.
Document Title: Notice of the Right to Claim a
Lien.
Scope: State of Texas, Private Works
Time Constraints: A Texas Notice of the Right
to Claim a lien must be served in accordance with the type of
job you are performing and the type of owner you dealing with.
Residential or Commercial Job?: Where noted, jobs
are defined as Residential or Commercial. A residence is defined,
by statute, as a one to four unit house or residential structure
which is used for residential purposes and is owned by one or
more adult persons and is actually used or intended to be used
as a dwelling by one or more of those owners. All other structures
are commercial for the purposes of the Mechanic's Lien statutes.
Note that time frames for filing are different for Residential
or Commercial projects.
An original contractor is defined as the Prime
or General Contractor.
Texas has three types of preliminary notices,
and each must be used before a Affidavit of Lien Claim can be
made on a job unless a Notice of Completion has been filed,
when an Affidavit of Lien may be filed immediately. A new, separate
notice is done for each month of service, and three notices
for each month may be sent in an attempt to get paid. In the
event of non-payment, your fourth notice should be a Lien Warning
Notice.
Notice Types:
1) Retainage Notice: If an agreement for retainage
exists, you must give written notice to the owner and original
contractor:
Residential Projects: Not later than the 15th
day of the first month following the month of the delivery of
labor or materials by the claimant.
Commercial Projects: Not later than the 15th day
of the second month following the month of the delivery of labor
or materials by the claimant.
Notices must be sent by certified mail or personal
service, state the sum to be retained and include a copy of
the retainage agreement (or a summary of the general nature
of the agreement including the due dates). A lien for retainage
may not be greater that the amount specified to be retained
in contract between the claimant and contractor. Use the Balance
Due Notice;
2) Balance Due Notice: A notice of the unpaid
balance due the claimant must be delivered:
Residential Projects: No later than the 15th day
of the first month following the month in which the claimant's
labor or material was furnished and by the 15th of the month
every month thereafter until paid or an Affidavit of Lien is
filed.
Commercial Projects: No later than the 15th day
of the second month following the month in which the claimant's
labor or material was furnished and by the 15th of the month
every month thereafter until paid or an Affidavit of Lien is
filed.
If a residential job, said notice is required
for both the owner and original contractor on for the first
and subsequent notices. If a commercial job, notice to the original
contractor is required for the first notice (send an optional
notice to the owner if you want to have the verification of
parties form filled out and returned), to the original contractor
and owner on the 2nd notice and to both on all subsequent notices.
If a surety or bonding company exists, send them notice also;
3) Special Fabrication Notice: If the claim is
based on items specially fabricated, notice to the owner and
prime contractor must be given:
Residential Projects: Not later than the 15th
day of the first month, following the month of the receipt and
acceptance of the material order, stating that the order was
received and accepted together with the price.
Commercial Projects: Not later than the 15th day
of the second month, following the month of the receipt and
acceptance of the material order, stating that the order was
received and accepted together with the price.
In cases where indebtedness was incurred by one
other than the original contractor, the claimant must also give
notice to the original contractor.
When printing the form you will be asked what
is the notice number of the preliminary notice (1, 2 or 3).
All Texas notices must include a copy of the invoices, or statement,
for the month of service for each separate notice. In mass printing
the program knows which forms should be printed, and when.
In addition, an owner withholding payments from
the original contractor must pay a claim, which is not disputed
by the original contractor, within 30 days after receiving a
copy of the demand sent to the owner.
Information Requirements: The information required
by program, the number of the preliminary notice you are sending
and whether you intend to send an owner cover letter.
Form Types: Notice of the Right to Claim a Lien,
Exhibits A-D (if needed) and Owner Letter (if used). When the
1st notice prints, the program will also print a verification
letter to the owner or contractor.
Procedures: Enter the program data, including
Additional Legal Parties or Releases for Other Companies. Copies
of all of the forms (less the Owner Cover Letter) must be delivered
within the time constraints listed above.
When in doubt, file your lien claim immediately.
