Are we supposed to send monthly notices if only retainage is owed?

6 months ago

Are we supposed to send monthly notices if only retainage is owed? If we haven’t sent the Preliminary notice or any monthly notices yet can we start sending them or should we just send an Intent to Lien? This is for retainage only.

Senior Legal Associate Levelset

That’s a good question. While I’m not able to advise you on what you should do in your situation, I can provide some information that should help you make your own determinations.

In Texas, monthly notices are only required for amounts that are owed, but unpaid. In order to preserve the right to lien those amounts, they must generally appear in monthly notices. However, amounts representing retainage do not need to be included as long as a Retainage Notice is sent which informs the owner and contractor of retainage being withheld. So, retainage amounts can be preserved by sending monthly notice, but including retainage in monthly notices is generally unnecessary as long as a timely Retainage Notice is sent. And, in Texas, the timeframe for providing that notice is relatively lax.

A Retainage Notice must be sent no later than the earliest of (1) the 30th day after the date the claimant’s contract is completed, terminated, or abandoned; or (2) the 30th day after the date the original contract is terminated or abandoned. Note that when hired by the owner, this notice must be sent to the owner. But, when hired by some other party, a Retainage Notice should generally be sent to both the owner and the project’s prime contractor.

If you’ve got other questions on Texas notices, lien rights, and retainage, these resources should be valuable:
(1) About Texas Preliminary & Monthly Notices
(2) Texas Lien and Notice Overview, FAQs, and Statutes
(3) Texas Retainage Overview, FAQs, and Statutes.

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