Protecting Your Receivables

Here is something I wrote after the residential housing bubble burst in order to help my clients protect themselves.  Over the last few months we have seen a size able up-tick in commercial clients having trouble getting paid, so I thought I would re-post it here.  Even though the Dallas local economy is “good” compared to other parts of the country I think right now you can’t be too cautious in protecting your business.

1) Require a Credit Application

Whether your clients are other businesses or individuals, if your client has an open account with you in which you are supplying a good or service prior to getting paid, you must first require a completed credit application. The credit application should include:

* Full legal name   
* Address   
* Social Security or Tax Identification Number

If your client fails to pay their account, your costs in collecting will be much lower if you have adequate information.

2) Require a Personal Guarantee

If you enter into contracts with other companies, you should always require a personal guarantee from the person acting as principle of the company. If your client fails to pay on the account, or otherwise breaches your contract, the principle is personally responsible to you as well as their company.

3) Receivable Turn-Around

Re-structure your companies billing cycle to issue invoices immediately or, at the very least, monthly. Also, shorten the due-date. Your companies accounting will operate much more smoothly without a 45 – 60 day lag in receivables. You will also be able to more accurately estimate your income for operating.  This also helps companies that can use Mechanic’s liens to recover money owed by being able to notify and file within the deadlines of the statutes.

Retainage Claims

Did you know that if you are having any retainage withheld from your draws that you are required to send an additional Retainage Notice?  This is generally ONE notice that gets sent out towards the beginning of the project that protects your rights to lien the retainage later down the line if the Owner or General Contractor fails to pay it.

Like the other Mechanic’s Lien laws, there are specific deadlines you must follow:

  • First Tier-Notice to the Owner by the 15th day of the second month following FIRST MONTH of delivery / work
  • Second and Below Tiers-Notice to the Owner and the General Contractor by the 15th day of the second month following FIRST MONTH of delivery / work.

It seems like lately, and in this declining economy, contractors are “writing off their retainage” more and more frequently.  They are having a harder time getting paid the retainage amounts.  If, you do not want to lose the right to your retainage (which, a lot of times, are quite large amounts), you have to follow the retainage statute.  If you are having any retainage withheld and are not sending a Retainage Notice letter at the beginning of the project, as set forth above, you are not protecting your rights to this money!

A lot of people don’t understand this portion of the mechanic’s lien law.  The best way I can explain it is that the “typical” mechanic’s lien notice letters are not practical for retainage funds that are withheld.  Because most contractors submit multiple payment applications, instead of sending a notice letter every month (because you won’t get paid on the retainage until the completion of the job which is past all bond or lien deadlines), the code allows you to simply send one letter at the beginning of the project to cover all the monies withheld for retainage.  Then, if for some reason you are not paid upon final completion, you can make a bond or mechanic’s lien claim for the retainage amounts AND you have already fulfilled your “notice letter” requirements pursuant to the Texas Property Code.

November Mechanic’s Lien Reminder

Last month, we talked about the differences between 1st Tier and 2nd Tier Claimants and reiterated that to file your mechanic’s lien and notice letters timely, first you really need to know whether or not you are a 1st Tier or 2nd Tier Claimant.  Another important difference to understand is whether you are working on a residential or commercial project.

Definition-Residential

A single family house, duplex, triplex, or quadruplex or a unit in a multi-unit structure used for residential purposes that is owned by one or more adult persons and is used or intended to be used  as a dwelling by one or more of the owners.

As an example, work on a residential house or multiunit structure is not necessarily a “Residential Project” when it comes to mechanic’s lien laws.  Specifically, if it is a spec or tract house and the builder or general contractor who owns the house does not intend to occupy it as a primary dwelling then, technically, this type of project falls under the mechanic’s lien rules for commercial projects.

Another easy hint is, does a corporation own the house or is it for an investment?  If so, it can never be “residential” for the purposes of the mechanic’s lien laws.

Once you know what type of Claimant you are and whether or not you are working on a residential or commercial project, refer to the Deadline Chart, within this email, for the current timeline on the lien process.

REMEMBER -   IF YOU ARE A 2ND TIER CLAIMANT OR ARE WORKING ON A RESIDENTIAL PROJECT, YOUR NOTICE LETTERS AND AFFIDAVITS ARE DUE 1 MONTH EARLIER THAN 1st TIERED CLAIMANTS ON COMMERCIAL PROJECTS.


November Mechanic’s Lien Deadlines

Commercial Projects

1st Tiered Claimant:

Your notice letters are timely for work done any time after August 1, 2009.
Your mechanic’s liens are timely for work done any time after August 1, 2009.

2nd Tiered Claimant:
Your notice letters are timely for work done any time after September 1, 2009.
Your mechanic’s liens are timely for work done any time after August 1, 2009.

Residential Projects

For all Claimants:

Your notice letters are timely for work done any time after September 1, 2009.
Your mechanic’s liens are timely for work done any time after August 1, 2009.

The “Irremovable Lien”

Score one for the Mechanic’s lien process.  Overall we see pretty good payment rate from Mechanic’s liens.   Today I got an email from a client saying they were contacted by an owner they had filed a lien against and the owner was wondering what they could do to get rid of this “Irremovable Lien”.

I always like to see the process work.

October Mechanic’s Lien Reminder

In order to make sure you are filing your mechanic’s lien and notice letters timely, first you really need to know whether or not you are a 1st Tier or 2nd Tier Claimant.
1st Tier Claimant:

  • One who works directly for, or supplies materials directly to, the original contractor
  • Has a contract, written or not, with the original contractor, but not with the owner

2nd Tier Claimant:

  • One who works directly for or supplies directly to any first tier or other lower tier subcontractor
  • Has a contract, written or not, with a first tier or lower tier subcontractor

If you have a contract directly with the Owner, technically, under mechanic’s lien laws, you are considered an original contractor.  Pursuant to the lien laws, the project can have many original contractors on a job.

Once you know what type of Claimant you are refer to the Deadline Chart, within this email, for the current timeline on the lien process which depend on the type of property the work was performed on – Commercial or Residential.

REMEMBER -   IF YOU ARE A 2ND TIER CLAIMANT, YOUR NOTICE LETTERS AND AFFIDAVITS ARE DUE 1 MONTH EARLIER THAN 1st TIERED CLAIMANTS ON COMMERCIAL PROJECTS.

October Deadlines


Commercial Projects

1st Tiered Claimant:

Your notice letters are timely for work done any time after July 1, 2009.
Your mechanic’s liens are timely for work done any time after June 1, 2009.

2nd Tiered Claimant:
Your notice letters are timely for work done any time after August 1, 2009.
Your mechanic’s liens are timely for work done any time after July 1, 2009.

Residential Projects

For all Claimants:

Your notice letters are timely for work done any time after August 1, 2009.
Your mechanic’s liens are timely for work done any time after July 1, 2009.