Hi! I finished a job in January and the customer is not paying the retainage. I know there are different rules with retainage and would really like to file a lien. I did send an intent to lien on this job, but not the actual lien. Can you tell me what steps I can take and if I can still file the lien on this job? Thank you for your help.
Hello,
You are completely out on your lien rights for a statutormy mechanic's lien under Chapter 53 of the Texas Property Code. You are also out on any lien for retainage. If you are the Original Contractor, you may still have a Constitutional lien against the Property.
Even if you cannot file a lien, you retain your ability to sue for breach of contract, quantum meruit or promissory estoppel (as appropriate), Rule 185 (if your records are good), and violations of the Prompt Payment to Contractors Act.
E. Aaron Cartwright III
214.799.0776
Aaron@EACLawyer.com
It is possible that you may have mechanic's lien rights against the retainage. Texas Property Code section 53.103 states:
Sec. 53.103. LIEN ON RETAINED FUNDS. A claimant has a lien on the retained funds if the claimant:
(1) sends the notices required by this chapter in the time and manner required; and
(2) except as allowed by Section 53.057(f), files an affidavit claiming a lien not later than the 30th day after the earliest of the date:
(A) the work is completed;
(B) the original contract is terminated; or
(C) the original contractor abandons performance under the original contract.
So, it depends on when the work for the project was completed, and whether you provided proper notices. Under Texas Property Code section 53.001 Definitions, the word "work" is defined as follows:
"(14) "Work" means any part of construction or repair performed under an original contract."
Retain a construction attorney to evaluate your legal situation and to provide advice.
Good luck.
Thank you!
Thank you!