The construction industry just loves to name things! And for many documents used in the construction payment process, different states will have a different name for the same basic document.
That’s why a “preliminary notice” is called a “notice to owner” in Florida, but is known as a “20-day notice” in both California and Arizona. Other states use a different name for the preliminary notice as well.
The same thing is true for a notice of commencement, which is a legal document that formally designates the beginning of a construction project. Filing a notice of commencement is required in the following states: Florida, Georgia, Ohio, Michigan, and Iowa.
A notice of commencement is optional (but still available) in South Carolina, South Dakota, and in TEXAS, where it’s known as the Affidavit of Commencement. Please read on for an overview of how this document is used on Texas construction projects.
What Is an Affidavit of Commencement?
The Texas Affidavit of Commencement contains information about the owner and original contractor, the description of the project site, the commencement date, and the general description of the job. It serves as a document that signifies that start of a project. This date is important because it can affect the timeline of the project. It also serves as a source of information for all project participants. Lastly, it can even affect the priority of encumbrances.
Who Is Required to File It?
An Affidavit of Commencement is not required in the state of Texas. It is completely optional! However, the parties that may want to file an option Affidavit of Commencement could be the property or project owner and the general or prime contractor on a project.
When Should It be Filed?
Even though it’s optional, if it is going to be filed, then it should be filed within 30 days of commencing the project.
Where Should It be Filed?
An Affidavit of Commencement is filed with the County Clerk. It is not required to be at the job site so if lower tiered parties need to access this document they can find it (if it exists) at the County Clerk’s office.
If an Affidavit of Commencement is an optional document, then why would it be sent? One reason is that it provides project participants such as subcontractors and suppliers with information that they will need during the project. It helps with notice requirements because it contains helpful information that is usually difficult to find. It will essentially help subs and suppliers to comply with notice of furnishing requirements by having easy access to information that they will need for their notice documents.
However, an Affidavit of Commencement does not affect notice requirements, because notice must generally be sent on Texas construction projects regardless of whether an Affidavit of Commencement is filed or not. But beware, because an Affidavit of Commencement can affect lien deadlines by setting a hard starting date for the project.
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