If the 3rd-month Notice is delivered later than the lien, is the lien still legally effective? Do we have to refile a lien?
Aug 2, 2018
That's a fair question, especially considering that Texas is already home to some of the nation's most complex lien and notice rules. In Texas, the deadline to file a lien will be the 15th day of the 4th month after alien claimant last furnishes labor or materials to the project (15th day of the 3rd month for residential). Of course, this is just that - a deadline. A Texas mechanics lien may be filed well before that time. As you know, certain notices are required to be sent in order to preserve the right to lien, and they must be sent by a specific deadline. Specifically, under § 53-056(a) of the Texas Property Code, "...a claimant other than an original contractor must give the notice prescribed by this section for the lien to be valid." That section goes on to state that a 2nd and 3rd month notice is required to preserve the right to lien, as you seem to be aware of. However, if a lien is filed prior to the deadline for sending such notice, the failure to send such notice will likely not render a mechanics lien invalid because the notice had not yet become due under the Texas Property Code. Of course, sending notice is inexpensive and relatively easy - so if a claimant is nervous about their lien's validity, they could always send a 3rd month notice despite having already filed a lien. However, nothing in the Texas Property Code indicates that a lien may not be filed until after a 3rd month notice is sent.