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Can you send a Texas notice of retainage too early?

Once we're under contract, are we able to send out our notice of contractional retainage even if we haven't stepped onto the job yet? Sometimes our projects are contracted and don't start for almost a year. Is there a date that's too early in Texas to send this notice out?

1 reply

Nov 15, 2019

A Notice of Contractual Retainage may be sent in Texas even where the sender hasn't begun their work on the project. § 53-057(a) of the Texas Property Code, which creates that notice requirement, states that the notice can be sent by someone "is to labor, furnish labor or materials, or specially fabricate materials, or has labored, furnished labor or materials, or specially fabricated materials, under an agreement with an original contractor or a subcontractor providing for retainage." So, it appears that notice can be sent whether or not work has actually begun. Of course, sending a notice a year in advance may be pushing things a bit - it's likely more practical and acceptable to send note much more closely to when the work will be performed. Though, there's no specific, statutory limit on how early a Texas Notice of Contractual Retainage can be sent. For more information on Texas notices: Texas Preliminary Notice Guide and FAQs

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