CofO was issued on 4/1/19 for a self storage project in Austin, TX that we were the general contractor on. Is it in our best interest to still file the Affidavit of Completion now? Do I use the 4/1/19 date for the completion date?
May 22, 2019
Good question! In Texas, an Affidavit of Completion is filed by the property owner. However, as far as industry practice goes, it's not necessarily uncommon for a GC to file an Affidavit of Completion as an agent of/on behalf of the owner. Any party who has sent preliminary notice (like a retainage notice or a specially fabricated materials notice) or a monthly notice must receive a copy of the Affidavit of Completion. Further, anyone who has provided work on the project and makes a written request for the Affidavit of Completion to the owner must receive a copy of the notice.
While I'm not able to advise whether you should or should not file an Affidavit of Completion under your circumstances, I can explain what the Affidavit of Completion does so you can make the determination yourself.
In Texas, an Affidavit of Commencement is a voluntary filing. When filed, it creates a concrete date for the project's completion date. That way, there's an obvious point in the project's timeline where work has been completed, and any lien or retainage deadlines would run from that date. However, to be totally effective, an Affidavit of Completion must be filed within 10 days of the date of completion of the improvement in order to be effective to shorten these timeframes. When filed within 10 days of completion, the date of completion will be the date when work was actually completed. An Affidavit of Completion can be filed more than 10 days after the completion of work, but if that's done, the date of completion for the project will be considered the date that the affidavit was filed (rather then when the work was finished).
So, by filing an Affidavit of Completion late, the party filing the notice may actually be extending the timeframe for which lien claims could be filed. Because an Affidavit of Completion is not required, and because there are often other reference points that show when a project was completed, it might not make sense for a party to file their Affidavit of Completion late.