Texas notice of claim for unpaid retainage, free and on the statutory wording
Retainage gets its own notice in Texas and its own deadline, and the deadline usually lands earlier than people expect. Section 53.057 prints the form. Fill it in here and send it to the owner and the original contractor.
Section 53.057(a-1) asks for this notice not later than the earlier of two dates: the 30th day after the date the claimant's contract is completed, terminated or abandoned, and the 30th day after the date the original contract is terminated or abandoned. The second one can arrive with no warning on a job you finished months ago, which is why this notice is the one most often sent late.
Read the law: Tex. Prop. Code 53.057, 53.003, 53.052, 53.101, 53.103 and 53.254statutes.capitol.texas.gov
Fill it in online Type your details in and download it already filled in.Download a blank Texas notice of claim for unpaid retainage
Word for word from the form in Tex. Prop. Code 53.057, subsection (a-2). Page two is the homestead statement printed in section 53.254(g), which section 53.254 requires any Subchapter C notice to include or have attached whenever the property is a homestead. Print it and fill it in by hand, or use the builder below and get it back already filled in.
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When this notice is required and when it is not
Section 53.057(a) draws the line by what your earlier notices said, not by what your contract is called. To the extent that a claim for unpaid retainage is not included wholly or partly in a notice provided under section 53.056, a claimant other than an original contractor whose contract provides for retainage must give notice under this section for a lien for unpaid retainage to be valid.
Two conditions, both of them. Your contract has to provide for retainage, and the retainage has to be outside what you already noticed. A monthly notice of claim that stated the full amount including the held back 10 percent has already done part of this job, and this notice covers the rest of it.
Read that as a reason to send this one anyway. Sending a retainage notice that turns out to have been unnecessary costs a stamp. Not sending one that was necessary costs the lien on the retainage.
The two dates, and which one bites
Section 53.057(a-1) is a race between two clocks and the earlier one wins. The first is the 30th day after the date the claimant's contract is completed, terminated or abandoned. That date you know, because it is your own work finishing.
The second is the 30th day after the date the original contract is terminated or abandoned. That date is not yours and nobody is obliged to tell you it happened. A framer who finished in March and a general contractor who walks off in September can put the deadline in October, six months after the framer's own work ended.
Section 53.003(e) applies here as well. A deadline landing on a Saturday, a Sunday or a legal holiday moves to the next day that is not one of those.
The 10 percent this notice is aimed at
Section 53.101(a) makes the owner reserve, during the progress of the work and for 30 days after it is completed, either 10 percent of the contract price of the work to the owner or 10 percent of the value of the work measured by the proportion done. Section 53.102 says those reserved funds secure payment to the people who did the labor and furnished the material.
Section 53.103 is how a claimant reaches them: a claimant has a lien on the reserved funds if the claimant sends the notices required by the chapter in the time and manner required and, except as allowed by 53.057(f), files an affidavit claiming a lien not later than the 30th day after the earliest of the date the work is completed, the original contract is terminated, or the original contractor abandons performance.
Section 53.057(f) is the exception that gives you the ordinary affidavit deadline instead. A claimant has a lien on the reserved funds, and the owner is personally liable for them, if the claimant gives notice under this section and either complies with Subchapter E or files a lien affidavit by the date required under the applicable provision of 53.052, and then gives notice of the filed affidavit as required by 53.055.
What the owner may do with it
Section 53.081(a) lets the owner withhold from payments to the original contractor an amount necessary to pay the claim, and that authority is in addition to the reserved funds.
The timing is different from the monthly notice, and this is the one asymmetry worth knowing. Under 53.081(b) an owner may withhold immediately on receipt of a notice sent under 53.056. Under 53.081(c), where the notice is sent under 53.057, the owner may withhold immediately on receipt of a copy of the claimant's affidavit prepared in accordance with sections 53.052 through 53.055.
So the retainage notice preserves the claim, and it is the affidavit that starts the withholding. Section 53.084 still decides the liability either way: except for the 10 percent the owner failed to reserve, the owner is not liable for amounts paid to the original contractor before the owner was authorized to withhold, and is liable for what is paid afterwards once the lien is secured and the claim is reduced to final judgment.
Page two, and when to leave it off
Section 53.057 sits in Subchapter C, and section 53.254(g) speaks to the whole subchapter: for the lien on a homestead to be valid, the notice required to be given to the owner under Subchapter C must include or have attached the statement it prints. That statement is page two of this download.
It is addressed to the owner and it explains the two things that protect them, withholding after a written notice of claim and reserving the 10 percent, which is the same 10 percent this notice is about. On a homestead job it goes with the notice. On any other job it is not required and the page can be left off.
Sending it, and what to write down
Section 53.003(b) allows delivery in person to the party entitled to the notice or that party's agent, by certified mail, or by any other form of traceable, private delivery or mailing service that can confirm proof of receipt. Under 53.003(c) a certified mailing is compliance on the day it is deposited in the mail.
Record the date and the method the moment you send it. Section 53.054(a)(8) requires the lien affidavit of a claimant other than an original contractor to identify the date each notice of the claim was sent to the owner and the method by which it was sent, and the affidavit is sworn.
Section 53.057(a-3) allows an invoice or billing statement to be included with the notice. On a retainage claim that is often the clearest way to show the number, because the amount is a percentage of work already invoiced rather than a new charge.
Questions people ask
When is the Texas retainage notice due?
The earlier of the 30th day after the date your contract is completed, terminated or abandoned, and the 30th day after the date the original contract is terminated or abandoned, under 53.057(a-1). The second date is the one that surprises people, because it can run off an event on somebody else's contract.
Do I still need this if I sent monthly notices?
Only to the extent the retainage was not already in them. Section 53.057(a) requires this notice to the extent that a claim for unpaid retainage is not included wholly or partly in a notice provided under 53.056. If your monthly notices stated amounts that excluded the retainage, the retainage still needs this one.
Is a retainage notice the same as a notice of claim?
The forms are nearly identical because the statute prints them that way, with the heading and one line changed: this one says total retainage unpaid where the other says claim amount. The deadlines are completely different, and that is the reason they are two documents.
Does the owner have to withhold money when this arrives?
Not on the notice alone. Section 53.081(c) says that where notice is sent under 53.057, the owner may withhold funds immediately on receipt of a copy of the claimant's affidavit prepared in accordance with sections 53.052 through 53.055. The monthly notice under 53.056 is the one that authorizes withholding on receipt of the notice itself.
What is the 10 percent Texas retainage?
Section 53.101(a) makes the owner reserve 10 percent of the contract price, or 10 percent of the value of the work done, during the work and for 30 days after it is completed. Section 53.102 makes those funds security for the people who supplied the labor and materials, and 53.103 is how a claimant gets a lien on them.
Do I send this to the owner or to the general contractor?
Both. Section 53.057(a-1) says the claimant must send the notice to the owner or reputed owner and the original contractor.
Is this the official Texas form?
The wording is the form printed in Property Code 53.057(a-2), and page two is the statement printed in 53.254(g). Subsection (a-2) says the notice must be in substantially the following form. Nothing on this page is legal advice.
Once the job is running and you are getting paid on it, the paperwork that comes next is the waiver: see the Texas statutory lien waiver forms, and conditional vs unconditional lien waiver for which of the two to sign.