Texas Residential Construction - List of Subcontractors & Suppliers

When providing labor and materials to residential projects, additional notices and contract disclosures must be provided to the owner.  One of the additional disclosures that must be made is a list of subcontractors and suppliers.  Texas Property Code § 53.256

Before any material is furnished or the labor is performed the original contractor must provide the owner with a written list that identifies by name, address, and telephone number each subcontractor and supplier the contractor intends to use in the work to be performed.

If a subcontractor or supplier is later added or deleted, the contractor must provide the owner with an updated list of subcontractors and suppliers not later than the 15th day after the date a subcontractor or supplier is added or deleted.

However, it should be noted that failure to provide the list will not invalidate a lien claim.

The list must contain the following notice conspicuously printed, stamped, or typed in a size equal to at least 10-point boldface or the computer equivalent:

"NOTICE:  THIS LIST OF SUBCONTRACTORS AND SUPPLIERS MAY NOT BE A FINAL LISTING. UNLESS YOU SIGN A WAIVER OF YOUR RIGHT TO RECEIVE UPDATED INFORMATION, THE CONTRACTOR IS REQUIRED BY LAW TO SUPPLY UPDATED INFORMATION, AS THE INFORMATION BECOMES AVAILABLE, FOR EACH SUBCONTRACTOR OR SUPPLIER USED IN THE WORK PERFORMED ON YOUR RESIDENCE."

Alternatively, an owner may waive the right to receive the list of subcontractors and suppliers or any updated information.  The waiver must be in writing and may be included in the contract.  If the waiver is not included in the contract, the separate waiver statement must be signed by the owner.

The waiver must be conspicuously printed in at least 10-point bold-faced type and read substantially similar to the following:

"WAIVER OF THE LIST OF SUBCONTRACTORS AND SUPPLIERS. AN OWNER IS NOT REQUIRED TO WAIVE THE RIGHT GRANTED BY SECTION 53.256, PROPERTY CODE, TO RECEIVE FROM THE CONTRACTOR AN ORIGINAL OR UPDATED LIST OF SUBCONTRACTORS AND SUPPLIERS.

"BY SIGNING THIS DOCUMENT, I AGREE TO WAIVE MY RIGHT TO RECEIVE FROM THE CONTRACTOR AN ORIGINAL OR UPDATED LIST OF SUBCONTRACTORS AND SUPPLIERS.

"I UNDERSTAND AND ACKNOWLEDGE THAT, AFTER SIGNING THIS DOCUMENT, THIS WAIVER MAY NOT BE CANCELED AT A LATER DATE.

"I HAVE VOLUNTARILY CONSENTED TO THIS WAIVER."

Texas Lien Claim - General Contractor on Residential Project

Perfecting a statutory lien claim on a residential project requires that the General Contractor follow the same process and procedures and provide the same notices and affidavits as on commercial projects.  However, the deadline associated with filing the affidavit claiming lien is one month earlier when working on a residential project.

To perfect a statutory lien, a General Contractor must timely file an Affidavit Claiming Lien with the county clerk in the county where the property is located.

The lien affidavit must be filed by the fifteenth (15th) day of the third (3rd) month after the day on which the indebtedness accrues which is either:

• on the last day of the month in which the original contract was completed, settled, or abandoned; or
• on the last day of the month in which written notice by the General Contractor or Owner is received by the other party stating that the contract is terminated.

The Affidavit Claiming Lien must contain the following:

• a sworn statement of the amount of the claim;
• the name and last known address of the owner or reputed owner;
• a general statement of the kind of work done and materials furnished;
• the name and last known address of the person by whom the claimant was employed or to whom the claimant furnished the materials or labor;
• the name and last known address of the original contractor;
• a description, legally sufficient for identification, of the property sought to be charged with the lien;
• the claimant's name, mailing address, and, if different, physical address

The affidavit must be signed by the person claiming the lien and must be sworn to (the signature line of the affidavit must represent that the affidavit was “subscribed and sworn to” and the affidavit must be notarized). 

The General Contractor must then send notice that the lien affidavit has been filed and a copy of the lien affidavit to the Owner within five (5) business days of its filing.  The notice and copy must be sent by certified mail.  Failure to send the notice within the applicable time period will void the lien claim.

To enforce your lien claim, you must file suit within the later of:

• one year after the date after the last date you may have filed a lien affidavit; or
• one year after completion, termination, or abandonment of the work under the original contract.

 By: Sarah Berry, Attorney

Texas Lien Claim by Subcontractor on Private Commercial Project

The procedure for a subcontractor to perfect a lien claim requires more steps and is more complicated than the procedures that general contractors follow. 

Subcontracts must provide written notice of their claim to the General Contractor and Owner of the property before filing an Affidavit Claiming Lien. 

The notice must:[1]

(1)   provide notice of the unpaid claim; 

(2)   include Fund Trapping language;[2]

(3)   be sent by certified mail to the General Contractor and Owner; and

(4)   be mailed not later than the fifteenth (15^th) day of the third (3^rd) month following each month in which the labor or material was provided for which the claimant has not been paid.

Once notice is given, to perfect its statutory lien claim, the subcontractor must timely file an Affidavit Claiming Lien with the county clerk in the county where the property is located.

The Subcontractor must file its lien affidavit by the   fifteenth (15^th) day of the fourth (4^th) month after the last month the Subcontractor provided labor or materials to the project.[3] 

The Affidavit Claiming Lien must contain the following:[4]

(1)   a sworn statement of the amount of the claim;

(2)   the name and last known address of the owner or reputed owner;

(3)   a general statement of the kind of work done and materials furnished and a statement of each month in which the work was done and materials furnished for which payment is requested (you are not required to set forth individual items of work done or materials furnished) (you may use abbreviations and symbols customary in the trade);

(4)   the name and last known address of the person by whom the claimant was employed or to whom the claimant furnished the materials or labor;

(5)   the name and last known address of the original contractor;

(6)   a description, legally sufficient for identification, of the property sought to be charged with the lien;

(7)   the claimant's name, mailing address, and, if different, physical address; and

(8)   a statement identifying the date each notice of the claim was sent to the owner and the method by which the notice was sent.

The affidavit must be signed by the person claiming the lien and must be sworn to (the signature line of the affidavit must represent that the affidavit was “subscribed and sworn to” and the affidavit must be notarized).  The contract, invoices, and any notices may be attached.

The Subcontractor must send notice that the lien affidavit has been filed and a copy of the lien affidavit to the General Contractor and Owner within five (5) business days of its filing. [5]  The notice and copy must be sent by certified mail.  Failure to send the notice within the applicable time period will void the lien.

To enforce the lien claim, suit must be filed within the later of:[6]

(1)   two years after the date after the last date you may have filed a lien affidavit; or

(2)   one year after completion, termination, or abandonment of the work under the original contract.

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[1] Tex. Prop. Code § 53.256(b)

[2] Tex. Prop. Code § 53.256(d)

[3] Tex. Prop. Code § 53.052(a)

[4] Tex. Prop. Code § 53.054

[5] Tex. Prop. Code § 53.055

[6] Tex. Prop. Code § 53.158(a)

Blog by attorney Sarah F. Berry