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Do I have to resend a notice after partial payment?

We are a Texas millworking subcontractor (we work directly for the GC). We sent the required notice of retainage. We have received half of the retainage with the GC saying that they are holding the remainder (apparently it has already been paid by the owner) until July 15 - which is the 15th day of the 4th month since we were on site. 1) It's still important to file a lien since that's the only leverage I have, right? 2) Do I need to send another notice of retention with the revised amount before filing a lien?

3 replies

Jun 9, 2020

First, the deadlines in this area are painfully complicated, even for practicing construction attorneys. My rule of thumb is send notice letters early and often and always preserve your lien rights. The earlier you file the better. A lot of times the lien filing can be smoothed over by early notification to your GC that the filing is happening simply to preserve your rights. In my experience, many GC's themselves do not understand how the deadlines work. While you've done a good job in providing facts, I don't have enough information to tell you where you are at timing-wise. My advice would be to do exactly what I just said and send a friendly letter and get your retainage lien on file. Make sure to follow each and every rule to the letter in filing your lien (which is difficult) or hire a service/attorney to take care of it for you. Very best, Ben House 281-762-1377 ben@houseperron.com

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Jun 9, 2020

Hello, Yes, you should absolutely file the lien. If you have ceased work on the project, you should file the lien now for only the unpaid amount. This would eliminate any need to send another notice. If your notices are proper under the Texas Property Code, you do not have to send another with a revised amount, although sending an additional notice would also be fine. There are other timelines in play for when a lien must be filed, when retainage must be distributed, and against whom you may have a claim for the unpaid amount, so it is best to contact an attorney to fully evaluate your contract and your situation. Please reach out to me directly if you have further questions. Kelly Stamy Associate Attorney 8431 Katy Freeway Houston, TX 77024 Tel: (713) 715-7334 KStamy@TheCromeensLawFirm.com www.TheCromeensLawFirm.com Privileged Attorney-Client Communication and/or Attorney Work Product: The above message and attachments, if any, are confidential and may be protected by the attorney/client privilege and/or attorney work product. The unauthorized disclosure, use, dissemination or copying of this e-mail, or any information it contains, by anyone other than the intended recipient, is prohibited. If you are not the named recipient, or have otherwise received this communication in error, delete it immediately and notify the sender at the office number listed above or by return email.

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Jun 9, 2020

I would be happy to discuss the issue with you (at no charge) if you would like. I have represented many subcontractors in Texas for the last 30 years.

You can contact me at the number below if you like. I work out of our Woodlands office.

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