Does a NOC need to be filed in order to protect a contractors lien rights in Texas? What about in GA?
Sep 29, 2020
A Texas Affidavit of Commencement is a not a requirement, rather it's a voluntary document filed by the owner and GC to set the start date of the project. In Texas, the Affidavit of Commencement does not affect any TX mechanics lien actions or deadlines. The only real effect on lien rights is that the date indicated on the Affidavit will set the lien priority of claimants. Perfected liens all relate back to the "time of its inception." Which is when the project visibly commences, and any other encumbrance after wards will be inferior to mechanics liens in terms of priority. If an Affidavit is filed on the project, it takes the guesswork out of establishing when work is visibly commenced, by establishing a firm start date.
A Georgia Notice of Commencementon the other hand, is typically required to be filed by the property owner or general contractor. Once filed, any subcontractor, supplier, or equipment lessor that did not contract directly with the GC (prime contractor) must send a Notice to Contractor within 30 days of the filing of the NOC to secure their GA lien rights. However, if the NOC is not filed, then the notice requirements do not apply. Therefore, if a project participant goes unpaid, claimants can skip straight to filing a claim without having to provide preliminary notice to the owner and GC.