We have a project in Texas that we are supplying material for. We are contracted with a subcontractor to the GC so we are considered a 2nd tier supplier. Our customer on behalf of the owner and GC requested that we purchase and store the material (Painted Aluminum Coil) to avoid any further escalation which we call "Stored Materials". We did this and sent our Invoice along with photos and Certificate of Insurance when the material arrived. However we have not been paid. Are we allowed to send a Notice to Prime for this unpaid material? I know our deadline for delivered material is 15th day of the second month in which material is delivered however I am not sure the rules for Stored Material.
There really are two issues: (1) What does the general contractor's contract with the owner say about stored materials? and (2) Are the stored materials considered to be specially fabricated for the project? The Texas Property Code Chapter 53 has provisions for specially fabricated materials which permit the provider to make claim for the materials even though the materials have not been delivered to the project. But the provider has to provide timely notice of the specially fabricated materials.
Typically, under Chapter 53, materials have to be delivered to be considered as support for a lien claim.
You really should retain a construction attorney to review and evaluate your legal position based on the contract and pertinent documents. The right to be entitled to file a mechanic's lien is set out in Texas Property Code Chapter 53, and you really need to make sure that if you file a lien, you have properly and appropriately done so.
Filing an invalid lien could subject you to liability under the Texas Fraudulent Lien Act, and you could be liable for statutory damages of $10,000, or actual damages, whichever is greater, plus attorney's fees. Facing such a claim would add insult to injury.
Good luck.
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