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Do I have lien rights if a notice of completion was filed on the project in Texas?

I am a Subcontractor who is not getting paid. I sent a demand letter to my customer and I received a letter from an attorney stating they filed a notice of completion and we do not have lien rights because we did not file the lien within the time frame. Please advise. Below is from Joe Browns Attorney: I attach for your review the Affidavit of Completion which was recorded on April 2, 2020, as Hays County Official Public Document No. 20012905. Pursuant to Tex. Prop. Code §53.106, an affidavit filed under this section on or before the 10th day after the date of completion of the improvements is prima facie evidence of the date the work under the original contract is completed for purposes of this subchapter and Section 53.057. If the affidavit is filed after the 10th day after the date of completion, the date of completion for purposes of this subchapter and Section 53.057 is the date the affidavit is filed pursuant to Tex. Prop. Code §53.057.

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May 29, 2020

As this attorney is citing the Texas Property Code to you, this is likely a private project. That's important, because even if you don't have statutory lien rights as against the owner, you are still able to sue the general contractor who has not paid you. Now, the contract between your company and the GC may create defenses for the GC in not paying you, such as a "paid if paid" clause, but generally speaking, you do not need a lien to proceed in court against a general contractor that you contracted directly with and who has not paid you for your work. Feel free to reach me at my office directly if you would like to discuss this issue further. 281-762-1377 ben@houseperron.com

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May 29, 2020

I would like a little bit more clarification on how an affidavit of completion filed will effect our right to file a lien

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May 29, 2020

It acts to create an additional deadline to the filing of a your lien notice/lien on retained funds that is the 40th day after the date of completion as stated in the affidavit. However, this is just one of several potential deadlines applicable to your lien filing depending on the facts of your specific case.

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Jun 1, 2020

Ben is absolutely right - if an Affidavit of Completion is filed, the deadline to file a mechanics lien on retainage amounts becomes the 40th day after completion (as set out in the Affidavit of Completion). However, an Affidavit of Completion won't affect the deadline for other rights. So, with the exception of retainage amounts, the ordinary Texas mechanics lien deadlines should apply. Finally, keep in mind that it's extremely common for an owner, a customer, or someone else on the job to dispute the availability of lien rights. Levelset discusses that here: My Lien Was Challenged: What Do I Do? If your right to lien has been challenged, assertions don't necessarily mean that your claims aren't valid - and consulting a Texas construction attorney, like Ben, could be useful in sorting out a lien challenge. And, even if lien rights are lost at some point, there are a multitude of legal claims that could be appropriate - like a breach of contract claim or claim under the Texas prompt payment laws, to name a few.

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