Friday, February 22, 2013

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 (15th) day of the third (3rd) 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 (15th) day of the fourth (4th) 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.

[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