When sending the Retainage Notice do we go by when the entire project is complete or when our part of the project is complete? Do we send the Contract Notice when we are done with our part of the job and bill our retainage or 30 days after we bill retainage?
Texas has some pretty complex rules and requirements surrounding pretty much every aspect of construction payment – and retainage is definitely no different. Some helpful information about retainage in TX generally at a glance, and answers to some frequently asked questions can be found here. There are tricky requirements with respect to retainage notices in Texas, just like there are with respect to “regular” notices. Let’s take a look at Texas retain age notices and see if we can clear it up.
The rules that apply to a Texas Notice of Contractual Retainage can be found in § 53-057. This notice is an additional notice requirement separate from the “monthly” notices that must be given by Texas construction participants who do not have a contract directly with the property owner. The Notice of Contractual Retainage must be given to the owner (and to the original contractor if there was no direct contractual relation between the original; contractor and the party giving notice):
“not later than the earlier of:
(1) the 30th day after the date the claimant’s agreement providing for retainage is completed, terminated, or abandoned; or
(2) the 30th day after the date the original contract is terminated or abandoned.
So, what this means is that the notice must be provided within 30 days of the end of the claimant’s work, unless the original contract was terminated or abandoned prior to that date, in which case the deadline is shortened to 30 days after the termination or abandonment of the original contract.
This is the only “preliminary” notice required for a claim of lien on the retained funds (although, note that other notices are required for a lien with respect to the other amounts due). Also note that this is a deadline, there is nothing in Texas statute that prohibits sending the Notice of Contractual Retainage at any point prior to that deadline, so it may be sent at the start of the project to make sure that the deadline does not slip by.
In order to have a lien against the retained funds, and make the owner personally liable for their payment, the claimant must give the Notice of Contractual Retainage as set forth above, and file a lien affidavit. The lien affidavit must be filed by either:
not later than the 30th day after the earlier of the date:
a) the work is completed;
b) the original contract is terminated; or
c) the original contractor abandons the project
(if the lien affidavit is solely on contractual retainage)
not later than the earliest of:
(i) the 15th day of the 4th month after the claimant’s last furnishing of labor or materials (3rd month if the project was residential)
(ii) the 40th day after the completion date stated in an affidavit of completion provided the owner sent the claimant notice of an affidavit of completion in the time and manner required;
(iii) the 40th day after the date of termination or abandonment of the original contract, if the owner sent the claimant a notice of such termination or abandonment in the time and manner required; or
(iv) the 30th day after the date the owner provided the claimant with a written demand (meeting the statutory requirements) for the claimant to file the affidavit claiming a lien.
That’s a lot.
Broken down a bit more simply.
– If the claim is on retainage only the affidavit of lien may be filed 30 days after the job is done (unless the original contractor was terminated or abandoned the project, in which case the deadline is shorted to 30 days from that date).
– Otherwise, the affidavit of lien must be filed by the general lien filing deadline (unless an affidavit of completion, notice of termination or abandonment, or a demand to file affidavit of lien is provided to the claimant).
Texas is very confusing, but I hope the above provides a more digestible overview of the deadline requirements for Retainage notices and claims in Texas.