We obtained C of O 4/1/19 for a project in Austin. Should we still file a NOC now and how does that impact lien rights of our subcontractors? I just asked a similar question about the Affidavit of Completion.
May 22, 2019
Matt's previous answer was very good, and comprehensive. Whether you should file an Affidavit of Completion is a determination that must be made on your own - or with the assistance of your own attorney, if you need help. However, as Matt said, filing a Texas affidavit of completion is voluntary document, there is no specific requirement or need to file one. However, providing the information contained in an affidavit of completion to certain parties is required (of the property owner) if the project is terminated or abandoned.
The benefit to filing an affidavit of completion in Texas is, generally, that it provides a set date of the project's completion, and allows subcontractors and suppliers to receive notice that the project as a whole is complete. And, it also starts the clock running with respect to claims beginning on that set date, and shortens the time period in which a lien for retained funds can be filed.
The general deadline in which a claimant may file a lien for a claim on retained funds is by the earlier of the 15th day of the 4th month after the month in which the project was completed (3rd month if residential), or the 40th day after the date stated in the affidavit of completion.
However, if the affidavit of completion is not filed within 10 days from the completion of the improvements, the date of completion listed on the affidavit doesn't matter, and the the date of completion for purposes of deadline calculation is the date the affidavit is filed.
Accordingly, the deadline for a claimant to file a lien for retainage given a completion date of 4/1/2019 (no filed affidavit of completion) would be August 15, 2019.
The deadline for a claimant to file a lien for retainage if an affidavit of completion was filed today (more than 10 days from the end of the project), would be July 1, 2019.