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Will our lien filing be accepted if we did not send all monthly notices (Texas)

Anonymous Contractor

We had been furnishing rental equipment for a commercial project from October - December 2018. However, we only sent notices for the month of December totals. Can we file a lien for the amount the customer owes us in its entirety ($5,498.98) or only for the amount we sent notices for ($3,916.88)? Thank you for your help.

1 reply

Matt Viator

Construction Lawyer

Levelset Admin at Levelset

| 997 reviews

Mar 27, 2019

I'm sorry to hear you've had trouble getting paid - no one should have to jump through hoops to obtain payment that they've already earned. In Texas, in order to preserve the right to later file a mechanics lien, a party hired by someone other than the owner of the property must send monthly notices. When notices are required but not sent, the amounts for which notice was not sent generally cannot be later included in a lien claim. Though, in a situation where notice was sent for some months but not for others, a valid and enforceable lien claim could be filed for the months for which notice was sent. It's also worth noting that a Notice of Intent to Lien could also go a long way to recover payment, without the need for an actual lien filing. It isn't a required notice in Texas, but by sending a Notice of Intent to Lien, a potential lien claimant can let their owner and customer know that they're serious about payment, and that if payment isn't made soon, a lien claim will be filed. Because the mechanics lien remedy is so powerful, many owners won't be willing to call a claimant's bluff. Plus, by informing an owner about the nonpayment and warning of a potential lien claim, that owner will often put pressure on their contractor to resolve the payment dispute before a lien filing occurs. What's more, because a Notice of Intent to Lien is essentially just a warning or threat of lien that demands payment, claimants could potentially threaten to lien all amounts owed to them - not just the specific amounts where lien rights have been preserved with monthly notices. You can learn more about the Notice of Intent to Lien document here: What is a Notice of Intent to Lien?. Finally, it's also worth noting that even outside of the mechanics lien process, there are other options that could help with recovery - such as a claim in Texas small claims court. That idea is discussed in this article: Other Options For Recovery Outside of the Mechanics Lien Process.

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