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What should we use as our first delivery date?

We often order materials up to 3 months before they actually get delivered to the jobsite itself. Which date should we use to calculate our monthly notice deadlines? The date the materials are first delivered to us, or the date they are delivered to the job site? These are custom-made materials - how does the law define "specially fabricated materials?"

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Feb 18, 2020

The Texas Property Code defines "specially fabricated material" as "material fabricated for use as a component of the construction or repair so as to be reasonably unsuitable for use elsewhere" at § 53-001(12). As you can see - that's pretty broad, and if the materials are made specific for a given job and relatively unusable elsewhere, those materials will typically be considered specially fabricated. As for when monthly notices should be sent: As you may know, monthly notices should be sent for months during which labor was performed or materials were furnished and the work was not paid for. And, based on the monthly notice requirements found at § 53-056, the time for sending monthly notices will be when the sender delivers material to the job site - whether that's ordinary construction materials or specially fabricated materials. Still, Texas monthly notices can be sent a bit early. Of course, regardless of notice requirements, keep in mind that "A person who specially fabricates material has a lien even if the material is not delivered," under § 53-021(b) of the Texas Property Code. So, even in situations where there's an issue with actual delivery of specially fabricated materials to the job site, there will be some lien protection available. Though, to best preserve all potential rights, it's important to send a Notice of Specially Fabricated Materials early on.

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