Affidavit of Completion
A sworn instrument recorded by the owner of a Texas construction project stating the date the original contractor completed the work. It was historically used to shorten the deadline for certain retainage lien claims, an effect HB 2237 (effective January 1, 2022) eliminated for original contracts entered into on or after that date.
An affidavit of completion is a sworn instrument recorded by the owner of a Texas construction project, stating the date on which the original contractor completed the work. Under prior versions of Chapter 53 of the Property Code, the recording of a timely affidavit of completion (with required notice to the original contractor and subcontractors) could shorten the deadline for retainage claimants who had given a retainage notice to 40 days after the completion date stated in the affidavit. House Bill 2237 (effective January 1, 2022) eliminated that truncation effect for original contracts entered into on or after that date.
Pre-2022 mechanics
Before January 1, 2022, an owner who recorded an affidavit of completion under § 53.106, meeting all statutory content and service requirements, including delivery to all subcontractors with timely notice claims, could limit the period during which retainage claimants who had given a retainage notice could file lien affidavits to 40 days after the date of completion stated in the affidavit. The truncation was an important risk-shifting tool for owners and lenders preparing to release retainage and close out a project.
Current (post-HB 2237) mechanics
For original contracts entered on or after January 1, 2022, the affidavit of completion no longer shortens the lien-filing deadline. The affidavit remains prima facie evidence of the completion date for purposes of Chapter 53, and if it is filed more than 10 days after completion the filing date becomes the completion date for Subchapter E, except as to a person to whom it was not sent as required (§ 53.106(d)). That date matters for deadlines keyed to completion, such as the 30-day period to claim a lien on reserved funds under § 53.103, the retainage-lien deadline in § 53.052(d) and the reserve period in § 53.101, but the 40-day acceleration mechanism is gone.
Statutory content requirements
Under § 53.106(a), the affidavit is filed with the county clerk of the county where the property is located and must contain (1) the owner's name and address; (2) the original contractor's name and address; (3) a description of the real property legally sufficient for identification; (4) a description of the improvements furnished under the original contract; (5) a statement that the improvements have been completed and the date of completion; and (6) a conspicuous statement that a claimant may not have a lien on retained funds unless the claimant files a lien affidavit in the time and manner the chapter requires. A copy must go to the original contractor and to each claimant who sent a notice under § 53.056 or § 53.057, by the later of the third day after filing or the 10th day after the owner receives the notice (§ 53.106(b)).
Practical consequences
The HB 2237 amendments removed an important close-out planning tool. Owners and lenders on contracts post-dating January 1, 2022 must now wait through the full statutory deadline window (for original contractors, the 15th day of the fourth month after the month of completion on non-residential projects and the 15th day of the third month on residential projects, while subcontractor and retainage deadlines run on their own triggers under § 53.052(b)-(d)) before they can be certain that lien rights have expired.
The affidavit of completion is an example of a Texas statutory tool whose practical utility has shifted. Which regime applies turns on the date the original contract was entered into, because HB 2237 continues prior law in effect for original contracts entered into before January 1, 2022. Deals straddle both regimes and will continue to do so for several years given multi-year construction timelines.