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Do I have to file a bonds claim in order to file a lien on retainage?

Texas

We are a commercial glass company and we finished work on a public school. We have filed an intent to lien notice for the remaining amount due which is just retainage. Do we have to file a notice of bond claim in order to be able to file a lien on retainage?

2 replies

Feb 23, 2021

Hello,

In all likelihood, the answer is "Probably". The reason I say probably is because retainage is supposed to be paid within 30 or so days after you've completed your punchlist items. If someone is holding back your payment, they are probably thinking they can pay retainage on completion of the entire project which is not the complete truth but people tend to do it and get away with it.

There is a likelihood that if you file against the bond, the bonding company may call the GC and instruct them to pay your retainage. With that being said, this is one of those situations that would require examination of your contract, pay apps, and the terms of the bond.

E. Aaron Cartwright III
214.789.1354
Aaron@EACLawyer.com

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Feb 23, 2021
If the school is owned by a public school district, and not a charter school, then it is likely that Chapter 2253 of the Texas Government Code controls the claims process. Section 2253.046 lists the notice requirements as follows: Sec. 2253.046. NOTICE REQUIRED FOR CLAIM FOR PAYMENT OF RETAINAGE. (a) To recover in a suit under Section 2253.073 on a payment bond for a claim for payment of retainage, a payment bond beneficiary whose contract with a prime contractor or subcontractor provides for retainage must mail written notice of the claim to the prime contractor and the surety on or before the 90th day after the date of final completion of the public work contract. (b) The notice shall consist of a statement of: (1) the amount of the contract; (2) any amount paid; and (3) the outstanding balance. (c) Notice of a claim for payment of retainage is not required if the amount claimed is part of a prior claim made under this subchapter. You can review Chapter 2253 at the following link: https://statutes.capitol.texas.gov/Docs/GV/htm/GV.2253.htm Retain a construction attorney to evaluate your situation and to provide advice. Good luck.
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