Affidavits of Commencement are voluntary in Texas. The law in Texas allows this notice to be filed by an owner and original contractor jointly.
Affidavit of Commencement Deadline
In Texas, an Affidavit of Commencement must be filed with he county clerk in the county in which the property is located not later than 30 days "after the date of actual commencement of the construction of the improvements or delivery of materials to the land."
Affidavit of Commencement Requirement
Texas's Affidavit of Commencement rules do not specifically discuss lenders. Not only do lenders not have an obligation to file an Affidavit of Commencement, the statutes don't seem to contemplate allowing lenders to do so. However, since Affidavits of Commencement directly benefit lenders - by setting the priority date for mechanics liens, presumably after the filing of the lender's security interest in the property - it is extremely beneficial to construction lenders to help owners and GCs get this requirement met.
Affidavit of Commencement Deadline
Texas Affidavit of Commencement requirements do not mention lenders. However, since Affidavits of Commencement directly benefit lenders - by setting the priority date for mechanics liens, presumably after the filing of the lender's security interest in the property - it is extremely beneficial to construction lenders to help owners and GCs get this requirement met.
Affidavit of Commencement Requirement
Subcontractors & suppliers do not have any obligations or ability to file an Affidavit of Commencement. Additionally, if an Affidavit is filed, it does not have any bearing on the notice requirements or deadlines of subs/suppliers.
In Texas, filing an Affidavit of Commencement, sometimes called a Notice of Commencement, is purely optional. Unlike other states that specifically require Notices of Commencement to be filed on all projects, like Georgia, or Florida, among others, the Texas Affidavit of Commencement is filed at the choice of the property owner and direct contractor.
A Texas Affidavit of Commencement can be filed jointly by the owner and original contractor, and is a relatively simple document. Despite the document being a voluntary filing, there are rules and requirements associated with an Affidavit of Commencement, and there can be legal consequences for parties on the project if an affidavit is filed.
Generally speaking, a Notice of Commencement is a form publicly filed in county records to signify that a construction project has begun. The form contains inforamtion that identifies the property, the work, the parties involved, and the scope of the project.
In Texas, specifically, an Affidavit of Commencement must contain:
(1) the name and address of the owner; (2) the name and address of each original contractor, known at the time to the owner, that is furnishing labor, service, or materials for the construction of the improvements; (3) a description, legally sufficient for identification, of the property being improved; (4) the date the work actually commenced; and (5) a general description of the improvement.
In many states with Notice / Affidavit of Commencement requirements or possibilities, the filing of a commencement notice mandates that other parties on the project take some action. Usually, this means filing some specific notice, or complying with some modified deadline. In Texas, however, an Affidavit of Commencement imposes no additional requirements to any other party, and, in fact, has no impact on the actions or deadlines of any party. It can, however, have a significant impact on parties ultimate recovery ability by having an effect on lien priority.
In Texas, if an Affidavit of Commencement is filed timely and appropriately, it provides “prima facie evidence of the date of the commencement of the improvement described in the affidavit.” This is important, because all subsequent mechanics liens relate back, and arise (for priority purposes) upon the commencement of the work. So, when an Affidavit of Commencement is filed, liens arise on the date stated in the affidavit.
While an Affidavit of Commencement form is not a very complex document in Texas, you can make the filing process really easy by just filing the document online.
This page provides frequently asked questions, forms, and other helpful information about Texas Affidavits of Commencement.
Video: What is a Texas Notice of Commencement (Affidavit of Commencement)?
Watch this short video that explains important Notice of Commencement requirements in easy to understand terms.
Texas Affidavit of Commencement FAQs
Texas mechanics lien laws are complex and have a lot of requirements and moving parts. One of these moving parts is the potential filing of an Affidavit of Commencement. While this affidavit does not impose any requirements on any other party, or even modify any deadlines, it can have significant consequences on the ability of construction participants to get paid by having an impact on lien priority. Even though an Affidavit of Commencement is a voluntary document, there are still rules and requirements that must be followed in the event it is decided an affidavit is to be filed.
For Property Owners, General Contractors, & Lenders
No. In Texas, an Affidavit of Commencement is a voluntary document that the owner and GC may “jointly” file. While there is no specific requirement that the Affidavit of Commencement be filed, there are benefits that can be gained from choosing to make the filing.
For most lien claimants, the filing of an Affidavit of Commencement provides a hard start date for the project, and the date of commencement of the work of improvement stated in the affidavit provides the time of inception of a mechanics lien arising from the work for priority purposes.
In some cases, materials can be delivered some time in advance of the actual beginning of the project – when that occurs it may be that the Affidavit of Commencement is required to be filed (if that choice is made) before the project starts. In these situations, it is worth considering whether filing an Affidavit of Commencement would be beneficial, or would set a priority date prior to when it would be desired.
Every county can have different and very specific rules for how construction notice documents should be filed. These requirements are strict and include the number of inches your document margins need to be, the size of the paper you need to use, the font (and color), cover pages, etc., so it’s a good idea to check with the county clerk prior to attempting recordation of an Affidavit of Commencement.
Can the property owner appoint a designee within the NOC?
No. Texas does not recognize the position of a party designated by the owner to receive notices on their behalf. All required TX notices that must be sent to the owner, must actually be sent to the owner – not some other party chosen by the owner to receive notice.
Am I required to provide copies of the Affidavit of Commencement to subs & suppliers?
Texas law is silent with respect to providing Affidavit of Commencement information or copies of the affidavit itself to sub-tier participants on the project. Not only is no specific notice to sub-tier participants required, but the affidavit is also not required to be posted at the job site. Accordingly, if lower tiered parties need to access this document they can find it (if it exists) at the County Clerk’s office.
Does the Texas Affidavit of Commencement need to be notarized?
While the statutory requirements of a Texas Affidavit of Commencement set forth by Texas Property Code Section 53.124 do not specifically mention the requirement of notarization with respect to a Texas Affidavit of Commencement, the name “affidavit” seems to require that the document be confirmed by oath or affirmation, which would generally require a notary. And, given Texas’s generally far-reaching notary requirements (even requiring notarization for lien waivers) it would be best to get the document notarized for filing.
No. There is no specific requirement to release or otherwise terminate a Texas Affidavit of Commencement. However, as a recorded document, it is likely possible, even if not required, to file an additional document to “cancel” the filed affidavit.
Do subcontractors and/or suppliers need to file a Notice of Commencement?
No. The Affidavit of Commencement requirement in Texas is exclusively for the property owners and general contractors. Subcontractors and suppliers do not need to file an Affidavit of Commencement, but they do have their own complicated preliminary notice requirements. Learn more about the subcontractor & supplier’s Texas preliminary notice requirements here.
Does the Notice of Commencement affect my preliminary notice or lien requirements?
No. If the Property Owner or GC files an Affidavit of Commencement it has no effect on any other preliminary notice or lien requirements – it just sets the time period for the inception of any subsequent mechanics lien for priority purposes.
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The Texas Affidavit of Commencement rules and requirements are found within the state’s general lien law statutes, which can be found in Texas’s Mechanics’ Lien Law, V.T.C.A.. Property Code § 53.001 et. seq. The below statute is an excerpt from that law that relates to the Affidavit of Commencement requirements.
Texas Affidavit of Commencement Statutes - Private Jobs
§ 53-124. Inception of Mechanic's Lien
(a) Except as provided by Subsection (e), for purposes of Section 53.123, the time of inception of a mechanic’s lien is the commencement of construction of improvements or delivery of materials to the land on which the improvements are to be located and on which the materials are to be used. (b) The construction or materials under Subsection (a) must be visible from inspection of the land on which the improvements are being made. (c) An owner and original contractor may jointly file an affidavit of commencement with the county clerk of the county in which the land is located not later than the 30th day after the date of actual commencement of construction of the improvements or delivery of materials to the land. The affidavit must contain: (1) the name and address of the owner; (2) the name and address of each original contractor, known at the time to the owner, that is furnishing labor, service, or materials for the construction of the improvements; (3) a description, legally sufficient for identification, of the property being improved; (4) the date the work actually commenced; and (5) a general description of the improvement. (d) An affidavit filed in compliance with this section is prima facie evidence of the date of the commencement of the improvement described in the affidavit. The time of inception of a mechanic’s lien arising from work described in an affidavit of commencement is the date of commencement of the work stated in the affidavit. (e) The time of inception of a lien that is created under Section 53.021(c), (d), or (e) is the date of recording of an affidavit of lien under Section 53.052. The priority of a lien claimed by a person entitled to a lien under Section 53.021(c), (d), or (e) with respect to other mechanic’s liens is determined by the date of recording. A lien created under Section 53.021(c), (d), or (e) is not valid or enforceable against a grantee or purchaser who acquires an interest in the real property before the time of inception of the lien.