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When to Send a Third Month Notice for Non-Residential Projects in Texas: Deadline and Requirements

When to Send a Third Month Notice for Non-Residential Projects in Texas: Deadline and Requirements

January 12, 2021

Texas’s preliminary notice requirements can be confusing. Not only must construction participants serve a notice every month, but the due dates also vary depending on what they do on a project.

Send a Texas Third Month Notice in Minutes

Send a Texas Third Month Notice in Minutes

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Construction participants working on non-residential projects in Texas may need to serve not one but two notices, a Second Month Notice and a Third Month Notice. This guide will walk you through the process of serving a Third Month Notice for non-residential projects in Texas.

What is a Third Month Notice in Texas?

The Third Month Notice is a preliminary notice in Texas that is served on the 15th day of the third month following each month in which there is unpaid work.

For example, if you work in December and you have not received your payment yet, you must serve a Third Month Notice by March 15th. The Third Month Notice is a recurring notice, so this requirement applies for every month in which you perform work on a project.

What is a 3rd Month Notice in Texas

Who must serve a Third Month Notice in non-residential projects in Texas?

The Third Month Notice must be served by parties who have no direct contractual relationship with the property owner of a non-residential project. This means that subcontractors and material suppliers of any tier in the contracting chain must serve a Third Month Notice.

Note that sub-tier subcontractors or those who have no direct contract with the general contractor must also serve a Second Month Notice for non-residential projects. In other words, if you have no direct contract with the GC of a non-residential project, you must serve two monthly preliminary notices for each month.

Who must serve a 3rd Month Notice for non-residential projects in Texas

When do you serve a Texas Third Month Notice for non-residential projects?

The Texas Third Month Notice for non-residential projects must be sent by the 15th day of the third month following each month in which there is unpaid work. In cases where the 15th day falls on a weekend or a holiday, the Third Month Notice must be served at an earlier date.

Be aware that payment does not have to be due in order for a Third Month Notice to be served. Even if there is no payment dispute or if the payment is not yet due until a much later date, you must still serve a Third Month Notice as long as your work over a given month has not yet been paid.

What happens if you fail to serve a Texas Third Month Notice for non-residential projects?

Failing to serve a valid Third Month Notice when required is fatal to your lien rights. You will not be able to record a valid mechanics lien if you do not serve a required Third Month Notice for a non-residential project in Texas.

How to serve a Texas Third Month Notice for non-residential projects

How to serve a Texas 3rd Month Notice for non-residential projects

1. Prepare the Texas Third Month Notice form

Texas does not have strict requirements regarding what pieces of information must be included in your Third Month Notice. However, it is a good idea to include the following details:

  • Your name and address
  • The name and address of the property owner
  • The name and address of the general contractor
  • The name and address of the party who hired you (if different from the GC)
  • A description of the property location
  • A description of the services that you performed
  • The amount that is currently unpaid; include the total as well as a breakdown per month

You may also attach to your Third Month Notice a statement of billing or copies of your invoices for the given month.

2. Serve the Texas Third Month Notice

How must you serve the Texas Third Month Notice for non-residential projects?

The Third Month Notice must be delivered via registered or certified mail. Based on current USPS rates, serving a document via certified mail costs around $3.50.

On whom must you serve the Texas Third Month Notice for non-residential projects?

The Third Month Notice must be served on both the property owner and the general contractor. This is a strict requirement – failure to serve on both the owner and the GC may cost you your lien rights for failing to follow the preliminary notice requirements.

When must you serve the Texas Third Month Notice?

The deadline for serving the Texas Third Month Notice for non-residential projects falls on the 15th day of the third month following each month in which there is unpaid work. If, for example, you have unpaid work in December, the Third Month Notice must be served by March 15th.

Send a 3rd month notice now

If the deadline falls on a holiday or a weekend, be sure to serve your Third Month Notice at an earlier date. Also keep in mind that a Third Month Notice must be served for every month in which there is unpaid work. You must therefore serve this preliminary notice even if the payment is not yet due or even if there is no ongoing payment dispute.

Note that a preliminary notice in Texas is considered served at the time of mailing.

Best practices for serving a Texas Third Month Notice for non-residential projects

1. Remember to serve a Third Month Notice even if there is no payment dispute

It is common for construction participants to hesitate to serve a Third Month Notice, or any type of preliminary notice at all, if there is no payment dispute. However, keep in mind that serving a Third Month Notice is a proactive way to preserve your lien rights in case payment issues come up later on. Be sure to serve this preliminary notice if you want to ensure that your right to record a mechanics lien is protected.

2. Sign an Affidavit of Mailing as payment proof

One of the best ways to prove that you have mailed a valid Third Month Notice is to sign an Affidavit of Mailing. This affidavit is signed by the party who mailed the preliminary notice, and it must be signed on the day that the Third Month Notice is mailed. If you have an Affidavit of Mailing, you have proof that you have served a valid Third Month Notice on time.

3. File a mechanics lien if necessary

Serving a preliminary notice in Texas is just a way to preserve your lien rights; filing a mechanics lien is still arguably the best payment recovery tool. If payment disputes come up, make sure that you exercise your lien rights and you record a valid Texas mechanics lien to recover your payment. Filing a mechanics lien in Texas comes with different rules and deadlines, so be sure that you are familiar with those requirements as well.

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