In Texas, can a lien be filed before a preliminary notice is required? For example, can a lien be filed in month 1 when the notice is due in month 2? Does a notice have to be provided prior to a lien being filed?
May 2, 2019
That's a good question. First, let's look at whether or not filing a lien claim prior to sending monthly notice would be effective. Then, we can look into why or why not that's a good idea.
As for whether it's technically allowable - under the Texas Property Code, there's technically no time period that's too early to file a lien, as long as the work has been done and payment is owed but unpaid for the work performed. However, under § 53-056 of the Texas Property Code, for subcontractors or suppliers filing a mechanics lien, "the claimant must give to the original contractor written notice of the unpaid balance."
Now, when the deadline to send this notice has not yet occurred - there's likely a fair argument that the lien claim should be able to be filed without first sending notice. But, the safest way to proceed would likely be to send notice prior to sending the lien claim - especially considering monthly notice can be sent early, as well.
Now, practically speaking, it's generally wise to send monthly notice, as required. For one, as mentioned above, it's the best way to be sure that a subsequently filed lien claim would be valid. But, further - a monthly notice presents an opportunity to obtain payment without actually having to file a mechanics lien!
Texas monthly notices are sort of like a hybrid between a preliminary notice and a Notice of Intent to Lien. They're utilized to preserve lien rights (like a preliminary notice), but they also serve to warn other project participants about a payment issue (like a Notice of Intent to Lien). When a Texas monthly notice is sent, it shows recipients that there's a payment problem present and that, if unchecked, it might ultimately lead to a mechanics lien filing. When the prime contractor and property owner are both aware of an impending payment issue, they can work to make sure payment is made. Plus, if payment still isn't made, a mechanics lien could still be filed.
For more information on Texas lien laws and monthly notices, these resources should be valuable: (1) Texas Lien & Notice Overview; and (2) Texas Monthly Noticing Made Easy.