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Can we file a lien in TX if we did not file a Preliminary notice?

Arizona

We did not file a Preliminary notice and now may need to file a lien. This would be commercial and I'm not sure if we are a subcontractor or GC

2 replies

Sep 16, 2021

First, your role on the job will be determined by the party who hired you. If you were hired directly by the property owner, then you'll generally be considered a "direct" or "general" contractor. If you were hired by someone other than the owner, then "subcontractor" is likely more appropriate.

Regarding notices - that will depend on your role. If you're considered a general contractor for the job, and if it's a commercial project, then preliminary notice is generally not required.

If you are considered a subcontractor on the job, then there will be some notice requirements. Without sending the proper notice to preserve lien rights, a valid and enforceable mechanics lien cannot be filed. Namely, a retainage notice and monthly notices will be required (though, if retainage amounts are included in the monthly notice(s), then the separate retainage notice won't be necessary). For more discussion on those notice requirements: Texas Monthly Notices Rules & FAQs.

Note also that if there was some monthly notice requirement, and if some notices were required but not sent, it may still be possible to send notices to partially protect some of the past months of the project. That's true even if some months weren't properly noticed.

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Sep 17, 2021
In Arizona, if you do not send a preliminary 20-day notice, you do not have lien rights. However, if you are still working on the project, you can still send a preliminary 20-day notice, and you will have lien rights to secure the money owed for work done from 20 days before the notice is sent forward. If you are near the end of the project or done with your work, you are out of luck. Keep in mind, simply because you don't have lien rights doesn't mean you aren't owed money. You still have the option of suing for breach of contract or unjust enrichment depending on the circumstances.
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