As a subcontractor on a private commercial job, retainage was billed on 5/31/20 (last date of work). What is the lien filing requirement? This is the only amount due at this time.
Sep 11, 2020
The deadlines for notices and claims with respect to retainage in Texas are tricky, and can be modified by other parties’ actions.
For private projects, the rules that apply to a Texas Notice of Contractual Retainage can be found in § 53-057. Note that this is a different notice than the generally required "monthly" notices. The retainage notice must be given by participants who do not have a contract directly with the property owner, separately from actually making a claim on the retained funds.
This notice must be given "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, 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. If it was, the deadline is then shortened to 30 days after the termination or abandonment of the original contract.
Then, in order to claim a lien on, and make the owner personally liable to the claimant for, the retainage, the next step would be to file a lien.
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"
ORnot 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 – yes, retainage requirements apply to residential projects, too) (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.
Retainage is complex, and you can learn more about the requirements for making a claim on retainage here.