I have a GC that has not paid retainage . The building has been turned over to the owner. The retainage due date is 03/27/2021 I am in the state of Texas
Please review the following sections from Chapter 53 of the Texas Property Code (which governs the propriety of mechanic's liens). Retain a construction attorney to evaluate your legal situation and to provide advice.
You can review all of Chapter 53 at the following link: https://statutes.capitol.texas.gov/Docs/PR/htm/PR.53.htm
Sec. 53.057. DERIVATIVE CLAIMANT: NOTICE FOR CONTRACTUAL RETAINAGE CLAIM. (a) A claimant may give notice under this section instead of or in addition to notice under Section 53.056 or 53.252 if the claimant is to labor, furnish labor or materials, or specially fabricate materials, or has labored, furnished labor or materials, or specially fabricated materials, under an agreement with an original contractor or a subcontractor providing for retainage.
(b) The claimant must give the owner or reputed owner notice of contractual retainage 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.
(b-1) If an agreement for contractual retainage is with a subcontractor, the claimant must also give the notice of contractual retainage to the original contractor within the period prescribed by Subsection (b).
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Sec. 53.103. LIEN ON RETAINED FUNDS. A claimant has a lien on the retained funds if the claimant:
(1) sends the notices required by this chapter in the time and manner required; and
(2) except as allowed by Section 53.057(f), files an affidavit claiming a lien not later than the 30th day after the earliest of the date:
(A) the work is completed;
(B) the original contract is terminated; or
(C) the original contractor abandons performance under the original contract.
Hello!
You are likely out on your lien rights for retainage. Mr. Erikson graciously provided the statute above.
All hope is not lost, however, as you still retain your ability to sue the General Contractor in a court of law for things like Breach of Contract, Quantum Meruit or Promissory Estoppel (as applicable), Rule 185 (if you have been keeping good records), and violations of the Prompt Payment to Subcontractors Act.
E. Aaron Cartwright III
214.799.0776
Aaron@EACLawyer.com