I am an HVAC subcontractor. This job is in Texas. This fast food restaurant job is finished, mostly, and the end user customer is using the facility. They have become unresponsive to us and the general. We previously filed some notices, and we were paid on those. Now it is just the retainage, about $10K. I just sent (with Levelset) a preliminary notice of retainage. But then I got a Levelset notice that I am late on that. The retainage is now getting late. We were last there in October. We were there in September. There was a factory startup of the HVAC equipment probably within the last 30 days, but we can't even get clear info about it. Should we send another monthly notice? Is there another form for retainage? Thanks! I am a little unclear since the retainage gets paid when the job gets closed out and, therefore, depends on factors outside of our immediate HVAC scope. In other words, even though we may not have been there in several months, that doesn't make the retainage technically late. Other work may need to be completed. On the other hand, that may be the wrong perspective.
Hi John,
Retainage is complicated, but you may not be completely out of luck, especially if you move fast. Your previous notices may have put the owner and/or GC properly on notice of your retainage claim, but that notice would not require the owner to hold retainage longer than thirty days past completion of the project. There are different types of notices, with different deadlines. For instance a fund trapping notice, if sent timely, would require the owner to withhold retainage and secure it for direct payment. I cannot be sure where you stand right now, but the point I'm trying to make is that there may be options. Proceeding against the general contractor may also be possible depending on your contract terms.
Now, given that the amount owed is $10,000, I would understand your reluctance to hire an attorney, but it is absolutely your best chance in understanding your position and getting paid. Attorney's fees and prompt payment interest can be demanded as well to cover your costs.
Very best,
Ben House
281-762-1377
ben@houseperron.com