We are currently about to file a lawsuit with the contractor on this property. Our attorneys have been going back and forth. My question is can I only file lien for december work billed 1/6/2022 in which both a notice and lien intent were sent on 3/4/2022. or for total up until march? Also, we recieved a termination of project letter on 3/4/2022 from contractor. Can we also file lien on the 10% retainage at this point. It looks like texas has a Notice of contractual retainage that needs to be filed as well. Please advise. We need to make sure we get this right. They owe us around $450,000 total and we dont want to give them any outs to pay us.
Retainage for work done, but not paid for, may generally be included in TX mechanics lien claims. And, in order to pursue those retainage amounts, it's generally necessary to send a Notice of Contractual Retainage. That notice is sent within 30 days of (a) the claimant’s contract is completed, terminated, or abandoned, or (b) the original contract is terminated or abandoned. So, if there's been a Notice of Termination or some other termination letter given, and if you intend to include retainage amounts in a lien claim, it'd be wise to do so shortly after receiving a termination letter.
As for other amounts that may/may not be included in the lien: All amounts owed but unpaid for work performed will be subject to a mechanics lien, as long as the necessary monthly notices were sent to preserve lien rights for each month where work was unpaid. Even if some months were not protected by sending the required monthly notices, it's possible to have partial protection for the months which did have proper notices. To be sure, notices must be sent in accordance with the rules discussed here: When is the deadline to send a notice in Texas?
Finally, note that the information and insight given here is limited, and that your attorneys will be able to review your documentation and circumstances more thoroughly to provide detailed legal advice. If you'd like to discuss with a Texas construction attorney, Levelset has a helpful directory of them here: Top Texas Construction Lawyers.