Frequently Asked Questions:
Notice of Mechanic's Lien Filing
Q. I am a subcontractor. When do I have to send the owner a copy of my mechanic's lien? Can I wait until I receive my lien back from the county clerk with the recording information?
A. No. Section 53.055 of the Texas Property Code requires the lien claimant to provide notice of lien filing to the owner and original contractor within five days of filing the mechanic's lien. Waiting beyond five days will invalidate the lien. Note: The owner does not need the recording information to process payment to clear the lien if the owner is so inclined to pay the claim.
Q. If I performed the change order work, but have not received the change order paperwork, am I supposed to wait until the change becomes official and the change becomes part of my contract?
A. No. Under the Property Code, you must provide notice of non-payment by the 15th day of the third month after the month in which you performed the unpaid work. It does not matter whether the work is formally or officially part of your contract. If you performed the work, but have not been paid, time is running under the Property Code.
Filing Claims for Money Not Paid to the Original Contractor
Q. Can I file a claim for work for which the original contractor has not been paid?
A. Yes. In fact, if you delay making the claim, you will lose your rights under the Property Code. It does not matter whether the original contractor has been paid for the work. If you did the work, but have not been paid, time is running under the Property Code.
Relationship of Invoice with Deadline for Submitting Claim
Q. I submitted my invoice in July, but the work was done in May. Does my time for filing a claim start when I mailed my invoice?
A. No. The time for submitting a notice of non-payment starts at the end of the month in which the unpaid work was done. When you submit an invoice or request for payment for the work is irrelevant. It does not matter even if you submit an invoice. The time for filing a claim starts anyway.
Q. The contractor did not finish, but I paid in full – now what?
A. It happens often – the owner pays the contractor in full, but the contractor does not finish the project. Or, the contractor’s work is defective, and he does not return to correct it. Now what? First, you need to document the situation. You need to establish that the work is incomplete or defective. Take photographs, preferably with a digital camera which puts the date on the image. Then, write to the contractor by certified mail, to request that he return to complete/correct his work. You need to be specific – list what needs to be completed/corrected. The contractor may return to complete/correct his work, and the matter is resolved. If not, you should take bids to complete/correct the work, making sure that the scope of work for the replacement contractor matches the scope of the original contractor’s work. You cannot charge the original contractor for additional work, unless the additional work is necessary to resolve problems that the original contractor caused. With the replacement contractor bids, you should again write by certified mail to the original contractor and advise that if he does not return to complete/correct his work within five days (or advise in writing that he needs a reasonable amount of additional time), then you will default terminate your contract with the contractor, and hold him responsible for the money paid to the replacement contractor to complete/correct the original contractor’s work. If the original contractor returns and completes/corrects the work, the matter may be resolved. If not, retain the replacement contractor, and write a third time to the original contractor (by certified mail) and advise that your contract with the original contractor has been terminated for default, and that you will hold the original contractor responsible for the money paid to the replacement contractor. Unleash the replacement contractor, and have him complete/correct the original contractor’s work. The replacement contractor needs to keep track of the charges that relate to completing/correcting the original contractor’s work. You cannot charge the original contractor for costs that are enhancements or betterments. For example, if the original contractor was supposed to install a $100 fixture, you cannot charge for a $200 fixture. Once you have the itemized charges from the replacement contractor, you should write to the original contractor and present the charges for reimbursement. If the original contractor pays, or you negotiate an acceptable deal, then the matter is resolved. If not, you may have to file suit to collect your money. If the amount of money is within the jurisdiction of a small claims court, you may wish to file suit there, as you can file the suit yourself, the costs are low, and a court date is fairly quick. If the amount of money exceeds a small claims court’s jurisdiction, you should retain an attorney to undertake collection proceedings. The documentation and letter writing will be evidence in a collection suit.