Specially fabricated material
The steel is cut, the dies are sunk, the panels are formed to an approved drawing nobody else can use — and the customer calls it off. Texas treats that as more than a breach-of-contract problem: Tex. Prop. Code § 53.021(2) gives a mechanic’s lien to a person who, under a contract with the owner or the owner’s agent, trustee, receiver, contractor, or subcontractor, “specially fabricates material, even if the material is not delivered,” and § 53.023(2) secures payment for that material “even if the material has not been delivered or incorporated into the construction or repair, less its fair salvage value.” The trap is the calendar, because the deadline runs from the month you would normally have been required to deliver — not from the month you were cancelled.
What’s included
How it works
The date that controls is not the cancellation. For a claimant other than an original contractor on a project that is not residential construction, the lien affidavit is due by the 15th day of the fourth month after the later of the month you last provided labor or materials or the month you “would normally have been required to deliver the last of specially fabricated materials that have not been actually delivered” (§ 53.052(b)), and the notice of claim to the owner and the original contractor is due a full month earlier (§ 53.056(a-1)(1)(B)). Residential construction projects run a month tighter on both (§§ 53.052(c), 53.056(a-1)(2)). An original contractor who contracted with the owner directly or through the owner’s agent skips the derivative notice and files off the month the work was completed, terminated, or abandoned (§ 53.052(a)). A cancellation in March on a June delivery schedule reads as breathing room and is not — it is a June clock, with notice required by September 15 and the affidavit by October 15. Send us the file now and you will know your dates in writing before anything is spent.
Three tracks diverge here, and the election you make early decides what is recoverable later. If the run was going into construction or repair of an improvement to private real property and you contracted with the owner, the owner’s agent, trustee, receiver, contractor, or a subcontractor, Chapter 53 is live (§ 53.021). If it was a public job, public property cannot be liened and the recourse is the prime contractor’s payment bond, which covers “specially fabricated material” as a defined category of public work material (Tex. Gov’t Code §§ 2253.001(6)(B), 2253.001(8)) but which protects only beneficiaries who have a direct contractual relationship with the prime contractor or a subcontractor (§ 2253.021(c)) — so where you sit in the chain matters. If the goods were never destined for an improvement to real property at all, Chapter 53 does not reach them and the sale is governed by the UCC as adopted in Tex. Bus. & Com. Code Chapter 2 — §§ 2.704(b), 2.709(a)(2), and 2.708(b). We sort which one your file is, find the project and the owner of record, and put the § 53.159 information requests in writing.
Your customer is who owes you; the lien is leverage against the property, not a substitute for collecting from the buyer. We work the account the way a commercial file has to be worked — demand, negotiation, skip tracing and asset investigation, field contact at the place of business — nationwide through a network of licensed collection attorneys, as we have for 25+ years. Where the statutory route is warranted, licensed counsel prepares and sends the notice, files the affidavit, and sends the owner a copy not later than the fifth day after filing, with a copy to the original contractor in the same period if you are a derivative claimant (§ 53.055). Then the hard limit: suit to foreclose must be brought no later than the first anniversary of the last day a claimant may file the affidavit under § 53.052 (§ 53.158(a)), unless the then-current record owner signs a written extension before that period expires and it is recorded with the clerk of the same county, which can reach the second anniversary of the filing date (§ 53.158(a-2)). That one-year rule arrived with H.B. 2237 and applies only to an original contract entered into on or after January 1, 2022 — an original contract entered into before then is governed by the longer prior law, which is continued in effect for that purpose, so the contract date is one of the first things counsel will want.
FAQ
Texas law reaches that situation. Tex. Prop. Code § 53.021(2) gives a lien to a person who, under a contract with the owner or the owner’s agent, trustee, receiver, contractor, or subcontractor, “specially fabricates material, even if the material is not delivered,” and § 53.023(2) provides that the lien secures payment for that material “even if the material has not been delivered or incorporated into the construction or repair, less its fair salvage value.” That is unusual — most of what a lien statute reaches is what actually went into the job. The two things that decide your file are whether the run meets the statutory definition and whether you are inside the deadline, which is why the first thing we do is date the file and assemble the record; whether the lien is available on your facts is a question for counsel.
Section 53.001(12) defines “specially fabricated material” as material fabricated for use as a component of the construction or repair “so as to be reasonably unsuitable for use elsewhere.” The test is unsuitability in another use, not how much effort or money went into the run. Stock material you bought for the job but could sell to the next customer is ordinary material; a panel formed to one approved elevation, or a weldment built to a project-specific drawing, is closer to what the statute describes. Approved submittals, drawings keyed to the project, and the cut tickets are what carry that showing, which is why we assemble that record before anything else.
It does not start when you are cancelled. For a claimant other than an original contractor on a project that is not residential construction, the affidavit is due by the 15th day of the fourth month after the later of the month you last provided labor or materials or the month you “would normally have been required to deliver the last of specially fabricated materials that have not been actually delivered” (§ 53.052(b)), and the notice of claim to the owner and the original contractor is due by the 15th day of the third month after the month during which “the undelivered specially fabricated materials would normally have been delivered” (§ 53.056(a-1)(1)(B)). Residential construction projects are a month tighter on both (§§ 53.052(c), 53.056(a-1)(2)). Notices must be delivered 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 (§ 53.003(b)). If the deadline or the last day of the period is a Saturday, Sunday, or legal holiday, the period is extended to include the next day that is not a Saturday, Sunday, or legal holiday (§ 53.003(e)) — which is the only extension the statute volunteers.
Section 53.021 reaches a contract with the owner’s contractor or with a subcontractor, so that is the ordinary case rather than a problem. Two consequences follow. You are a derivative claimant, so the § 53.056 notice step applies to you and an original contractor’s shorter path under § 53.052(a) does not. And the amount is capped: § 53.024 limits a subcontractor’s lien to an amount equal to the proportion of the total subcontract price that the sum of the labor performed, materials furnished, materials specially fabricated, reasonable overhead costs incurred, and proportionate profit margin bears to the total subcontract price, minus the sum of previous payments received on the subcontract.
Whatever the material is genuinely worth in another use or as scrap — and that is a question of evidence, not argument (§ 53.023(2)). A fabricator holding a dated scrap quote and a documented attempt to resell the run is on firmer ground than one asserting the material is worthless. The same record does double duty if the claim turns out to belong under the UCC instead, because § 2.704(b) measures the alternatives against scrap or salvage value too. We collect that evidence while the material is still on your floor and before anyone has cut it down or moved it.
No. Public property is not subject to a mechanic’s lien, and the recourse is the prime contractor’s payment bond. Tex. Gov’t Code § 2253.021(a) requires a payment bond on a public work contract in excess of $25,000, or in excess of $50,000 where the governmental entity is a municipality or a joint board created under Subchapter D, Chapter 22, Transportation Code, and “specially fabricated material” — material ordered by a prime contractor or subcontractor that is specially fabricated for use in a public work and reasonably unsuitable for another use — is a defined category of public work material (§§ 2253.001(6)(B), 2253.001(8)). The bond protects only beneficiaries with a direct contractual relationship with the prime contractor or a subcontractor (§ 2253.021(c)). Note the wrinkle: the notice deadline in § 2253.041(b) is keyed to each month in which any of the claimed material was delivered, and the chapter does not spell out the equivalent date for a run that was never delivered — so that timing has to be pinned down with counsel immediately, not assumed. Suit on the bond is available if the claim is not paid before the 61st day after the notice is mailed (§ 2253.073(a)) and may not be brought after the first anniversary of the date notice for the claim is mailed (§ 2253.078(b)).
A different statute does. Where the goods were never destined for an improvement to real property, Chapter 53 does not apply and the sale is governed by the UCC as adopted in Tex. Bus. & Com. Code Chapter 2. Section 2.704(b) lets an aggrieved seller of unfinished goods, in the exercise of reasonable commercial judgment for the purposes of avoiding loss and of effective realization, either complete the manufacture and wholly identify the goods to the contract, or cease manufacture and resell for scrap or salvage value, or proceed in any other reasonable manner. Section 2.709(a)(2) allows an action for the price of goods identified to the contract if the seller is unable after reasonable effort to resell them at a reasonable price, or the circumstances reasonably indicate that such effort will be unavailing, and § 2.708(b) measures damages by the profit, including reasonable overhead, the seller would have made from full performance where the market-price measure of § 2.708(a) is inadequate. Which election you make now shapes what is recoverable later, so it is worth deciding before the material moves.
No, and we will not pretend otherwise. We are a commercial collection agency, not a law firm — we do not file liens or affidavits, file suit, or give legal advice. What we do is date the file against the statute, assemble the record the claim stands on, work your customer for payment, and route the matter to licensed collection attorneys in time for them to prepare and send the statutory notice and file the affidavit. We take commercial accounts on contingency, and the fee is agreed before you place anything.
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