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Can I send a Texas preliminary notice before being on site after I've signed a contract?

Anonymous Contractor

Can a Texas Preliminary Notice be sent even prior to being onsite…basically anytime after the contract is signed? If you have a very short duration project, let’s say it’s a one or two day project, do you still have until the 15th of the second month after your first day onsite to send the Preliminary Notice?

1 reply

Matt Viator

Construction Lawyer

Levelset Admin at Levelset

| 997 reviews

May 13, 2019

That's an interesting question, and ultimately, the answer will depend on what notice is being referred to as a preliminary notice. If you're referring to notice like the Texas retainage notice or the Texas notice for specially fabricated materials - sending those notices on early in a project makes a lot of sense, and doing so can help make sure everyone is on the same page about the project from the jump (while also preserving lien rights from the get-go). If you're referring to Texas' monthly notices - it's generally not a good idea to send such a notice before any work has been performed. Unlike preliminary notices in some other states, Texas monthly notices serve as an indicator that there is currently a debt that is owed but not paid. It's sort of like a step in between a preliminary notice and a Notice of Intent to Lien - it lets the recipients know that there's a payment problem and that further action will eventually be taken if payment is not made. So, by sending a monthly notice very early, before any work has been performed, a monthly notice might send the wrong message and could even damage relationships. But, to some extent, monthly notices may also be sent early - but they'd still need to be sent after the work in the notice has been performed. Regarding timeframes for sending the notice - those timeframes will apply regardless of how long a claimant has performed work on the job. Even if work is only peformed for one day, second-month notices must be sent on the 15th day of the second month after the month during which labor and/or material was provided but unpaid. Hope that was helpful! For more information on Texas notices and liens, these resources should be helpful: (1) Texas Monthly Notices; (2) Texas Notice & Lien Overview.

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