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Do I file a lien on a Pay App for a job that we are not finished with yet? (in Texas)

I billed for a job back in November that is a Pay App. We have still not received this payment. I know November work is up for Liens this month, but if we haven't billed 100% per our contracted amount will us filing a lien possibly cause a mess later down the road if we have Change Orders that are added after we file this? We have filed intents prior to this on this property. Should we just file another intent until we are done on this job and haven't received payment?

1 reply

Feb 12, 2020

Texas' mechanics lien laws can be pretty confusing, but let's break down some of those requirements as they relate to your question above.

It's ok to file a Texas mechanics lien before your work is finished

First, it's worth noting that Texas mechanics lien claimants aren't required to wait until the project has ended in order to file a mechanics lien. If necessary, a claimant can file their lien claim as the project is still being undertaken. But, as you mentioned above, filing a lien can cause a mess on the project - and that's kind of the point! When a lien is filed, that claim makes sure the owner and other higher-tiered project participants feel the pain of the claimant going unpaid. If a claimant's work will continue well after their lien filing would occur, then it might be worthwhile to pursue some other recovery options before proceeding straight to a lien (and we'll discuss that more below). Though, if push comes to shove, a claimant could file their lien. With all of the above in mind, it's important to fully understand the Texas mechanics lien deadline when making a decision on whether or not - or when - to lien. The deadline for filing a Texas mechanics lien is based on the last date when the claimant performs labor or materials on the project. So, lien deadlines really don't relate to specific months of work or specific invoices so much as they relate to the claimant's overall work on the job. If the work is still ongoing, then, the deadline to file a lien hasn't really begun to run. You can read more about how to determine your last furnishing date here: What’s the ‘Date Labor or Materials Last Delivered’ and How Can I Prove It? For a bit more discussion on this topic, here's a helpful article and video: Can A Contractor File A Mechanics Lien If They Didn’t Finish The Work?

Other options for forcing payment before filing a mechanics lien

Obviously, there are some tools that can help to recover payment before filing a lien becomes necessary. And, it sounds like you're already using Notices of Intent to Lien which are certainly a powerful tool in that respect. Additionally, regularly sending invoice reminders for unpaid debts will help to ensure payment. They're just like they sound, simple reminders, and they're used to gentle prod a customer and remind them that payment remains outstanding. Though, if the dispute has already started to snowball, then a simple reminder might not be all that valuable. Another option that escalates things a bit further would be to send a payment demand letter. A demand will typically put a hard deadline on making payment and threaten legal action if that deadline isn't followed.

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