GC in Texas - we had a project that was active and put on pause for a while because of covid. Work picked back up again in March when we finished and sent our final invoice. Since March we have been back doing punch list items. Is the mechanics lien deadline based off of the invoice we sent in March or the last day we worked on the project?
Chapter 53 of the Texas Property Code governs the validity and legitimacy of mechanic's liens. Contracts and invoices and interruptions of the project and Covid-19 do not.
Depending on whether the project is residential or commercial, the deadline for filing a mechanic's lien could be the 15th day of the third month or the 15th day of the fourth month, respectively, after the end of the month in which the debt accrued.
But if the owner filed an affidavit of completion, the deadline for filing a mechanic's lien could be shortened to 30 days after the project was complete.
Texas mechanic's liens are super complicated. Retain a construction attorney to evaluate your legal situation and to provide advice.
In Texas, a person claiming a lien "must file an affidavit with the county clerk of the county in which the property is located . . . not later than the 15th day of the fourth calendar month after the day on which the indebtedness accrues." If the lien arises from work performed for a residential project, that deadline is shortened to "15th day of the third calendar month after the day on which the indebtedness accrues."
The date on which indebtedness accrues is defined by statute (for a direct contractor) as: "(1) on the last day of the month in which a written declaration by the original contractor or the owner is received by the other party to the original contract stating that the original contract has been terminated; or (2) on the last day of the month in which the original contract has been completed, finally settled, or abandoned." For a subcontractor, indebtedness accrues "on the last day of the last month in which the labor was performed or the material furnished."
If, according to the above, the date indebtedness accrues is determined by the completion of the contract, that date means “the actual completion of the work, including any extras or change orders reasonably required or contemplated under the original contract, other than warranty work or replacement or repair of the work performed under the contract." [emphasis added]. So, if the last work was extras or change orders required for the completion of the original contract, it would count to extend the lien deadline. However, if the most recent work was merely warranty/replacement/repair work, then it would not extend the deadline.