Texas Mechanic's and Materialman's Liens and Bond Claims: Contractors and Claimants

The type of contractor or claimant you is an important factor in determining the correct procedures and deadlines in perfecting your lien or bond claim. 

There may be several different types and tiers of contractors involved on one project.  The Owner will contract with one or more General Contractors.  The General Contractors may contract out part of the work to or purchase materials from Subcontractors.  Then the Subcontractors may contract out part of that work to or purchase materials from Sub-Subcontractors.

General Contractor

The General Contractor (also sometimes referred to as the “Prime Contractor” on public works projects) has its contract directly with the Owner of the property.  Remember, if it is a public project, the Owner will be a governmental entity.  The General Contractor may also be referred to as the “Original Contractor” or “Prime Contractor.”  There may be more than one General Contractor.

Subcontractor (First Tier Claimants)

A Subcontractor has its contract with the General Contractor.  Subcontractors are also referred to as “First Tier Claimants.”  It is likely that there will be multiple Subcontractors hired for each project.  For example, the General Contractor may hire Subcontractor X for drywall services and Subcontractor Y for roofing services.

Sub-Subcontractor (Second Tier Claimants)

A Sub-Subcontractor has its contract with a Subcontractor.  Sub-subcontractors are also referred to as “Second Tier Claimants.”  It is likely that there will be multiple Sub-Subcontractors hired for each project as well.  For example, a Subcontractor may hire Sub-Subcontractor A for gutter installation services and Sub-Subcontractor B to supply materials.

By SarahF. Berry, Attorney

If you are interested in attending a lien and bond claim workshop please contact Sarah Berry for more information.  Sarah@LPVLaw.com or (512) 472-2300.  Our next workshop is scheduled for November 2, 2012. 

How will perfecting a lien claim help me collect?

Why should you go through the trouble of perfecting a lien?  There are several reasons that going through the lien claim process may be beneficial to you and your business. 

As will be discussed in later blog posts, in most situations, contractors must send out notices of their unpaid claims very early on in the process.  This is helpful for several reasons.  For one, the notices must be sent within a few months after the labor and/or materials were provided to the project, and, consequently, you aren’t allowing your AR to become seriously delinquent.  Additionally, the notices serve as a reminder that your invoice has not been paid, and sometimes a reminder may be all it takes.  Some notices must also be sent to the Owner of the property.  Once the owner becomes aware that you as a subcontractor are not being paid by the General Contractor, the Owner may intervene with the General Contractor on your behalf or retain funds from the General Contractor for your benefit.  Furthermore, timely sending out the proper notices demonstrates that you understand the lien process and are a competent and professionally run business that will have no problem perfecting and enforcing your lien rights if necessary.

If sending the required notices does not result in payment, you have set yourself up to claim a lien on the property.  Perfecting a lien claim is beneficial from a legal and negotiation standpoint.  Legally, if you have followed the proper procedure and perfected your lien, you can file suit to foreclose on the lien if necessary.

From a negotiation standpoint, you have more power when you’ve perfected a lien.  If you have perfected your lien, it will be reflected in the real property records and will put third parties on notice.  This can be helpful in several situations.  For example, if the Owner of the property would like to refinance a loan on the property or sell the property to a third party, most lenders and third parties will require a release of lien from you before proceeding with the transaction.  This could mean that the Owner or the third party buyer may offer to pay you all or some portion of your claim to release the lien.  For new construction, continued financing may be contingent upon keeping the property lien free, and if your lien claim will make financing more difficult, you may be more likely to get paid.  Additionally, many property Owners will not release retainage until the General Contractor can provide lien releases and/or affidavits that all bills have been paid, which can motivate the General Contractor to pay Subcontractors.

By SarahF. Berry, Attorney  

If you are interested in attending a lien and bond claim workshop please contact Sarah Berry for more information.  Sarah@LPVLaw.com or (512) 472-2300.