A notice of unpaid balance should be sent to the owner of the project by every sub-contractor/material supplier (with a copy to the general contractor) for each month in which any unpaid balance remains, except contractual retainage. The notice should include the name of the general contractor, the amount due and unpaid and the nature of the work done. Additional "funds trapping" language can also be included and that language is found in the Texas Property Code in Section 53.056.
Additional notice must be sent if the owner's property is his homestead.
Additional language should be included in the event the property is homestead. This language is found in the Texas Property Code in Section 53.254.
Notice must be sent timely and for each unpaid month.
This notice of unpaid balance should be sent no later than the 15th day of the second calendar month following the month in which the unpaid work was performed or material delivered. A separate notice must be sent for each month during which work was done, but has not been paid.
An affidavit must be filed with the county clerk in the county of the property.
An affidavit of Claim of Lien must be recorded in the real property records of the county where the property is located by a claimant on each project and should be done not later than the 15th day of the third calendar month following each month during which work was done which is not been paid.
The affidavit of Claim of lien must include certain information.
1) sworn statement of the amount of the claim; 2) the name and last known address of the project owner; 3) a general statement of the kind of work done or materials furnished; 4) the name and last known address of the person who employed the claimant; 5) the name and last known address of the general contractor; 6) a legal description of the property where the project is located; 7) the claimant's name and address and 8) a statement identifying the date each notice of the claim was sent to the owner and the method used to send it (certified mail, return receipt requested is always preferred for all notices.)
Notice of the filing of the Affidavit must be given.
A copy of the lien affidavit for every claimant must be sent to the property owner and the original contractor. The copy of the lien affidavit must be sent within five (5) business days after the affidavit is filed.
A law suit may be required.
If the filing of the claim of a lien does not result in the resolution of the matter within one year of the filing of the affidavit, the claimant should consider retaining counsel to file suit to perfect the lien and foreclose on it. Statute of limitation time lines will eventually prevent collection on the claim.
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