Contractor specially fabricating materials

The general rule for material suppliers under Texas mechanics lien laws is that lien rights will not cover any materials that aren’t delivered to the job site or incorporated into the private construction project. However, there is an exception carved out for specially fabricated materials. Texas law recognizes situations where materials are ordered for a specific project. And if those materials are not ultimately used in the improvement, this leaves that supplier short on options for recovery when filing a materialman’s lien. Cue the Texas Notice of Specially Fabricated Materials.

 What are specially fabricated materials?

Before we dive too deep into the specific notice requirements, let’s take a step back. What are specially fabricated materials? Thankfully, the definition is baked right into the Texas lien laws:

“Specially fabricated material” means material fabricated for the use as a component of the construction or repair so as to be reasonably unsuitable for use elsewhere.

Texas Property Code §53-001(12)

In other words, these are materials that are provided to a construction project that are custom-made for that project. If the materials aren’t used, they would be difficult or impossible to reuse on a different project.

Some examples would be a custom marble countertop for a kitchen remodel project, or HVAC ductwork that’s manufactured to fit a specific area.

Texas notice of specially fabricated materials

The notice of specially fabricated materials is a specific type of preliminary notice in Texas.

Most Texas notice requirements can be extensive, and hard to understand. However, the requirements surrounding the Texas Notice of Specially Fabricated Materials are rather straightforward. These requirements can be found under two different statutes,  Tex. Prop. Code §53-058 for commercial projects, and §53.253 for residential construction projects, although the requirements are essentially the same.

Information to include in the notice

As far as what information needs to be included by lien claimants in a specially fabricated materials notice, there’s not much to it. The only two statutory requirements are:

  1. A statement that the order has been received and accepted
  2. The price of that order

That’s it! While this is a pretty bare bones notice, we do recommend including some other important pieces of information. It’s helpful to include other pertinent information, such as:

  • Your name and contact information
  • The name and contact info of your hiring party and/or general contractor
  • A description or address of the real property being improved
  • A description of the materials being provided.

As with any kind of payment document on a construction project, the more information, the better.

Texas Notice of Specially Fabricated Materials - form preview

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Download a free Notice of Specially Fabricated Materials form, prepared by construction lawyers to meet the statutory requirements in Texas.

Serving the notice

When delivering a Texas notice, the basic rule is that the notice needs to be served on the property owner (or reputed owner) no later than the 15th day of the second month after the month the order has been accepted. Whether the order was accepted on the 1st of the month or the 30th, it doesn’t matter. The notice deadline isn’t calculated by the day of the month, but the month itself.

Also, if you didn’t contract directly with the original contractor (i.e. the GC) then you will also need to provide a copy of the notice to the GC as well.

Here’s an example:

A subcontractor on a residential remodel project orders marble countertops from you on March 17th. To secure your lien rights in case some of the materials are not delivered or incorporated into the project, the notice must be served no later than May 15th.

The notice needs to be sent by registered or certified mail, within the required time period to be valid. If the notice is sent by one of these two methods, the notice is deemed served when it is deposited in the mail.

Additional notice requirements for Texas suppliers

Keep in mind that this notice only secures lien rights for specially fabricated materials that were not delivered or incorporated into the project. Consider it an extra security net in case the materials go unused or undelivered.

But what about the materials that are eventually delivered and incorporated? What about retainage? There are a few different other notices and requirements that may be necessary to secure the full protection of Texas mechanics liens.

Monthly notice of unpaid balance

Material fabricators will still need to send another notice on the 15th of a designated month to secure the full protection of mechanics lien rights for all of the materials provided. This can vary depending on who hired you and what type of project.

These requirements can get complicated, to say the least.

Texas notice requirements infographic
This infographic provides a quick summary of Texas monthly notice requirements.

Therefore, staying with the example above (hired by sub on a residential project) the notice will be due on the 15th day of the second month following the delivery.

Download a free Second Month Notice form

Let’s say the countertops were delivered on April 2nd. So the notice of unpaid balance must be sent to the owner of the property and the GC no later than June 15th. (April + 2 months = June.)

If the project were non-residential, the lien claimant would also be required to send a notice (for the same delivery) on the 15th day of the third month after the materials were delivered.

Download a free Third Month Notice form

Keep in mind that if materials are delivered multiple times in more than one month, more than one notice of unpaid balance will be required to secure your lien rights. Also, if the project is a homestead property, there may be some additional requirements for your notice to be valid

Retainage notice

If the agreement to provide specially fabricated materials includes a provision for retainage, there may be an additional notice you can provide to secure your full lien rights regarding payments withheld under a retainage provision. This is known as a Texas Notice of Contractual Retainage.

Download a Notice of Contract Retainage form

This notice needs to be sent out the earlier of either:

  • 30 days after the contract is terminated, abandoned, or completed; or
  • 30 days after the original/prime contract is abandoned or terminated.

On commercial projects only (i.e. non-residential property), if the Notice of Contractual Retainage has been sent, there is no need to send a Notice of Specially Fabricated Materials. But it’d be wise to do so at the outset of the project anyways. What if you miss your deadline for the retainage notice? You may find yourself out of luck regarding the undelivered or unincorporated specially fabricated materials.

Texas is strict about notices

The state of Texas has the most grueling notice requirements under their mechanics lien laws. And it’s important to ensure that you strictly comply with each in order to secure the full protection of lien rights in case of nonpayment. For a full breakdown of all of the notice requirements in Texas, visit our Texas Notices Overview & FAQs page

However, if you’re providing specially fabricated materials, this is just another notice to add to the list to ensure you’re protected for the work you’ve done, in the event that the materials never get delivered or used on the project.

2020 Texas Monthly Notice Calendar thumbnail

Download the Texas Monthly Notice Calendar

This calendar takes the guesswork out of calculating the deadline for your Texas monthly notices. We update it annually.

Download the calendar