Texas Preliminary Notice Guide and FAQs

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Texas Preliminary Notice FAQs

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Texas Notice Rules
At A Glance


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Notices Are Required Monthly for Most Parties

If you’re a subcontractor, sub-sub, material supplier, equipment lessor, or anybody that did not contract directly with the property owner or general contractor, then you have to send monthly recurring notices in order to protect your right to file a lien.


N/A
GCs Are not required to send Notice

Texas contractors who contract directly with the owner do not need to send Preliminary Notice.


Each
MONTH
Subcontractors Must Send Notice Monthly

For residential projects, notice is required to be sent to the owner and prime contractor by the 15th day of the 2nd month following the month that work was performed and unpaid. (Notice must be sent for each month work was performed and unpaid.)

On non-residential projects, first-tier subcontractors must send notice by the 15th day of the 3rd month following each month work was performed and unpaid.

Subcontractors who contracted with a party other than the direct contractor on non-residential projects must send a notice by both the 15th day of the 2nd month, and the 15th day of the 3rd month following each month in which work was performed and unpaid.


Each
MONTH
Suppliers Must Send Notice Monthy

For residential projects, notice is required to be sent to the owner and prime contractor by the 15th day of the 2nd month following the month that work was performed and unpaid. (Notice must be sent for each month work was performed and unpaid.)

For non-residential projects, first-tier suppliers (those who contract with the prime/direct contractor) must send notice by the 15th day of the 3rd month following each month work was performed and unpaid. And suppliers who contracted with a party other than the direct contractor must send a notice by both the 15th day of the 2nd month, and the 15th day of the 3rd month following each month in which work was performed and unpaid.


icon-can't waive lien rights
You Cannot Send Notices Late

Texas does not allow late notices. Failure to deliver monthly notices when required (even if just one day late) precludes the ability to file a valid mechanics lien for the amount due for the labor or material furnished in the month(s) associated with the improper notice(s). And, failure to provide a notice of specially fabricated materials means that a claimant may only file a lien claim for materials that were actually delivered and incorporated into the project


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Send to GC and Owner.

2nd month notices on residential projects, and 3rd month notices on all other projects must be sent to the owner and the GC. 2nd month notices on non-residential projects and notices of specially fabricated materials must be sent to the owner.

Notices Are Required

Public jobs (i.e. city, state, government) in Texas require preliminary notices in order to retain the right to make a bond claim.


X
No Notice Required from GCs

On public jobs, any claims for non-payment are made against the general contractor's bond. Since GCs will not make a claim against their own bond for non-payment, they do not have bond claim rights, and have no preliminary notice requirement.


Each
MONTH
Subs Must Send Notice Monthly

First-tier subcontractors must send notice by the 15th day of the 3rd month following each month work was performed and unpaid.

Subcontractors who contracted with a party other than the direct contractor must send a notice by both the 15th day of the 2nd month, and the 15th day of the 3rd month following each month in which work was performed and unpaid.


Each
MONTH
Suppliers Must Send Notice Monthy

First-tier suppliers (those who contract with the prime/direct contractor) must send notice by the 15th day of the 3rd month following each month work was performed and unpaid.

Suppliers who contracted with a party other than the direct contractor must send a notice by both the 15th day of the 2nd month, and the 15th day of the 3rd month following each month in which work was performed and unpaid.


icon-can't waive lien rights
You Cannot Send Notices Late

Texas does not allow late notices. Failure to deliver monthly notices when required (even if just one day late) precludes the ability to file a valid bond claim for the amount due for the labor or material furnished in the month(s) associated with the improper notice(s). And, failure to provide a notice of specially fabricated materials means that a claimant may only file a claim for materials that were actually delivered and incorporated into the project


Icon_SearchContractor
Send to GC & Surety

In Texas, the 2nd month notice must be sent to the GC; and the 3rd month notice must be sent to the GC and the Surety.

    Texas construction law requires contractors and suppliers to send monthly notices to the prime contractor and property owner. Sending these notices is a requirement in order to retain the right to file a Texas mechanics lien if they are not paid. When it comes to notice requirements, Texas mechanics lien law gets complex pretty quickly; it’s important for construction businesses to follow the rules closely.

    Texas notices fall somewhere between a preliminary notice and a notice of intent to lien. A notice may be required at the start of work, but there can also be multiple notices due after each and every month in which labor is performed or materials furnished (but unpaid). This can easily result in a complex mess of paperwork that is difficult to manage, especially on long projects or projects with long payment cycles.

    Part of the complexity of the Texas notice scheme is that only a few notices have specific names. The most common construction notice that is generally required by Texas law can be called a 2nd month notice or 3rd month notice (depending on which deadline applies), a “fund-trapping notice”, a preliminary notice, or something else. For the information contained on this page, we’ll use the term “monthly notice.”

    Texas Notices Required by Role & Project Type

    A direct contractor – one who contracts directly with the property owner – is not required to send a preliminary notice on non-residential projects in Texas. However, they are required to send the owner a disclosure statement with a list of all of the subcontractors and suppliers working on the project.

    Texas notice requirements infographic

    Subcontractors, material suppliers, equipment lessors, or anybody that did not contract directly with the property owner, must send monthly notices in order to protect the right to file a lien. The further removed from the property owner you are, the more notices you must send.

    The rules and requirements related to Texas notices can change depending on project type, the project tier of the party sending the notice, and the work provided by the noticing party.

    Texas Construction Notices Deadlines

    The deadline in Texas for most construction notices is the 15th day of the month, except for the notice for a retainage claim. If the 15th falls on a weekend or holiday, the notice should be sent prior to the 15th.

    Texas’s monthly notice requirement is generally set forth by Texas Property Code § 53-056. The law requires a monthly notice to be sent by the 15th day of the second month after each month in which the claimant performed labor or furnished materials for which they remain unpaid.

    And, since Texas monthly notices contain language that is a bit aggressive, and which falls somewhere between a general preliminary notice and a notice of intent to lien, many Texas construction participants don’t want to send the notices unless and until absolutely necessary. This can make the 15th of the month an extremely stressful and busy day for construction companies in Texas.

    2nd Month Notice

    In Texas, parties hired by a subcontractor (e.g. a sub-subcontractor or a supplier to a subcontractor) must send notice by the 15th day of the second month.

    Material suppliers who fabricate custom materials for a construction project must also send a notice of specially fabricated materials by the 15th day of the second month.

    Notice of Specially Fabricated Materials

    Texas 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.”

    Parties who fabricate special materials for a construction project in Texas must provide a notice of specially fabricated material. This notice is due by the 15th day of the second month following the month in which the claimant received the order for the material. This notice preserves the supplier’s lien rights even if the materials aren’t delivered or used in the project.

    This notice must be sent in addition to any other monthly notice that may be required, in order to retain lien rights.

    3rd Month Notice

    First-tier subcontractors in Texas (those who have a contract with a Direct Contractor) must send notice by the 15th day of the 3rd month following each month work was performed and unpaid.

    In addition to the 2nd month notice, parties hired by a subcontractor must send a notice by the 15th day of the third month after furnishing as well.

    Contractual Retainage Notice

    In order to file a mechanics lien for unpaid retainage in Texas, a claimant must mail a notice no later than the earlier of these dates:

    • 30 days after the date the claimant’s agreement providing for retainage is completed, terminated, or abandoned; or
    • the 30th day after the original contract is terminated or abandoned.

    Penalties for Failing to Send Notice

    The penalties for not providing the required notices in Texas can be severe. Failure to deliver monthly notices when required (even if just one day late) eliminates the ability to file a valid mechanics lien for the amount due for the labor or material furnished in the month(s) associated with the improper notice(s).

    And failure to provide a notice of specially fabricated materials means that a claimant may only file a lien for materials that were actually delivered and incorporated into the project (provided other notice requirements are met).

    Texas Notice Frequently Asked Questions

    If you're sending notices in Texas, it's important to get all the details right. The rules are complex and many notices can be required for every project. If you're receiving prelims, it's important to know what you're looking at and know what to do to followup. Since Texas notices are subject to a lot of complex rules and requirements, this can all be difficult. Not to mention that the process is tedious for everyone involved. These are some frequently asked questions about the process, with answers written by construction attorneys and payment experts in Texas.

    Notice FAQs on Private Projects

    Do I need to send a preliminary notice in Texas?

    Yes, except for some circumstances.  The notice requirements in Texas are an absolute mess.

    We break down the process in full in our Step-by-Step Guide to Preparing & Sending Texas Monthly Notices.

    Subcontractors and suppliers are required to send preliminary notices on all projects in the 2nd and/or 3rd month after furnishing labor or materials. Note that there are also special notice requirements for suppliers of specially fabricated materials, and for claims on contractual retainage.

    The general contractor is generally not required to give any preliminary notice. However, on residential projects, the general contractor must give the owner a disclosure statement before signing the contract, and a written list of all the subs and suppliers intended to be used (updated periodically) unless the owner has specifically waived this requirement in writing (the waiver may be part of the original contract). Further, in order to obtain a lien on a homestead, the general contractor must execute and file with the county clerk a written contract setting forth the terms of the contract prior to the furnishing of labor and/or materials signed by both spouses if the owner is married.

     

    When do I need to send a preliminary notice in Texas?

    In Texas, there’s one date that matters the most when it comes to sending notice: The 15th day of the month.

    Subcontractors, suppliers, and anyone else who doesn’t have a direct contract with the owner will need to send a notice in the 2nd month, the 3rd month, or both.

    See How to Prepare & Send Texas Monthly Notices

    Keeping track of notice deadlines can be a monumental task! Our Texas Monthly Notice Deadline Calendar makes tracking your deadlines incredibly simple (we update it annually).

    What happens if I send a Texas lien notice late?

    If you fail to send a required notice on time, it’s unlikely that you will be able to file a mechanics lien claim in Texas for that amount.

    If a custom material supplier misses the deadline to send a specially fabricated materials notice, that lien claimant may only claim for any materials that were actually delivered and used in the project.

    How should a construction notice be sent in Texas?

    All Texas notices (except contract regarding homestead) should be sent by registered or certified mail.

    A contract for improvement to a homestead must be filed with the county clerk in the Texas county in which the property is located, prior to the furnishing of labor and/or materials.

    Note, however, that despite the general statutory requirement to send notices by registered or certified mail, Texas specifically states that:

    “Any notice or other written communication may be delivered in person to the party entitled to the notice or to that party’s agent, regardless of the manner prescribed by law” and “[i]f a written notice is received by the person entitled to receive it, the method by which the notice was delivered is immaterial.”

    If you deliver a notice by hand, it’s important to document the delivery in some way, in order to prove that the delivery occurred if necessary.

    Who do I send a Texas preliminary notice to?

    For homestead improvements, the contract must be recorded with the Texas county clerk in the county in which the property is located. General contractors may give any preliminary notice required to the lender, as well as the owner.

    Subcontractors/suppliers must give the required notices to the general contractor as well as the property owner.

    Suppliers of specially fabricated materials must provide notice to the owner and to the general contractor (if they supply a subcontractor).

    Is a Texas notice considered served when sent or delivered?

    The requirement to send most Texas notices (including monthly notices) is fulfilled upon mailing.

    See Mailing Construction Notices: Is Notice Served When Mailed or Delivered?

    According to Texas Property Code § 53-003(c), “If notice is sent by registered or certified mail, deposit or mailing of the notice in the United States mail in the form required constitutes compliance with the notice requirement.”

    Note, however, that “[t]his subsection does not apply if the law requires receipt of the notice by the person to whom it is directed.”

    Notice FAQs on Public Projects

    Do I need to send a Texas notice on public projects?

    Contractor’s Bond: All claimants who do not have a direct contractual relation to the contractor furnishing the bond must send a preliminary notice. Laborers making a claim for wages only are excepted from this requirement.

    Contract Funds: No claimants making a claim on contract funds are required to provide a preliminary notice.

    When is the deadline to send notice on a public project in Texas?

    Contractor’s Bond: Preliminary notice must be mailed no later than the 15th day of the 2ndmonth after each month in which the claimant furnished labor and/or materials for which there is an unpaid balance. Notice of claim must be given prior to the 15th of the month if the 15th falls on a Saturday, Sunday, or legal holiday.

    Contract Funds: N/A

    What if I send the Texas preliminary notice late on a public project?

    If a notice is required, failing to send one is fatal to a construction party’s right to make a bond claim.

    How should the Texas preliminary notice be sent for a public project?

    Contractor’s Bond: Preliminary notice must be sent by certified or registered mail – there is no requirement of actual receipt.

    Contract funds: N/A

    On a public project, who needs to receive a Texas preliminary notice?

    Contractor’s Bond: The 2nd month notice must be sent to the prime contractor.

    The 3rd month notice is actually the claim itself, and that must be sent to both the prime contractor and the surety.

    Contract funds: N/A

    Claims for retainage must be given to both the general contractor and the surety.

    Need More Help with Texas Notices?

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