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Florida Lien Law FAQs

Florida Construction Lien Law FAQs

1. Why is a construction lien important?

A lien is a claim against property for the payment of a debt. The improved property is security for the Lienor’s claim. When a final judgment is entered for enforcement of the lien, the improved property may be sold to satisfy the judgment. Even before a judgment is entered, a recorded claim of lien can create leverage because it can interfere with the property owner’s ability to get a mortgage loan or sell the property.

2. I am a contractor. What is required for me to have a lien?

Under Florida’s Construction Lien Law, a contractor is a “a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it, or who takes over from a contractor as so defined the entire remaining work under such contract. The term “contractor” includes an architect, landscape architect, or engineer who improves real property pursuant to a design-build contract authorized by s. 489.103(16).”

If you are a contractor, for you to have a lien, you must:
a. Have a valid contract with the owner. While a written agreement is strongly preferable, it is not necessary. Oral contracts, and even implied in fact contracts, can support a construction lien.
b. Record a proper and sufficient Claim of Lien within 90 days of your “final furnishing” of labor, materials, or services. Note: the 90-day period might be shorted if, after construction ceases or the direct contract is terminated, the owner records an affidavit of intent to recommence construction.
c. Give a Contractor’s Final Payment Affidavit to the owner at least 5 days before filing your suit to enforce the lien.
d. File your lawsuit to enforce the lien within 1 year of the date the lien was recorded. The owner can shorten the 1-year time period by recording a Notice of Contest of Lien in the official records or by serving you with a 20-day summons to show cause. You must file your lawsuit to enforce your lien within 60 days of the date the Notice of Contest of Lien is recorded or within 20 days of receiving the summons to show cause.

Note: Satisfying all of these conditions does not automatically give you the right to sell the owner’s property. A final judgment must be entered by a judge. Also, satisfying these conditions does not prevent the owner from asserting defenses or a counterclaim. For example, if you gave the owner a release in exchange for payment, the owner might assert it as a defense. As another example, if the owner believes your work was deficient, or that you caused damage while performing your work, the owner might assert those as defenses or a counterclaim.

3. I am a subcontractor. What is required for me to have a lien?

Under Florida’s Construction Lien Law, a subcontractor is “a person other than a materialman or laborer who enters into a contract with a contractor for the performance of any part of such contractor’s contract, including the removal of solid waste from the real property. The term includes a temporary help firm as defined in s. 443.101.”

If you are a subcontractor, for you to have a lien, you must:
a. Have a valid contract with the contractor. While a written agreement is strongly preferable, it is not necessary. Oral contracts, and even implied in fact contracts, can support a construction lien.
b. Serve a Notice to Owner on the owner and the contractor within 45 days after commencing to furnish labor, materials, or services to the project and before the owner disburses final payment to the contractor pursuant to a Contractor’s Final Payment Affidavit.
c. Record a proper and sufficient Claim of Lien within 90 days of your “final furnishing” of labor, materials, or services. Note: the 90-day period might be shorted if, after construction ceases or the direct contract is terminated, the owner records an affidavit of intent to recommence construction.
d. File your lawsuit to enforce the lien within 1 year of the date the lien was recorded. The owner can shorten the 1-year time period by recording a Notice of Contest of Lien in the official records or by serving you with a 20-day summons to show cause. You must file your lawsuit to enforce your lien within 60 days of the date the Notice of Contest of Lien is recorded or within 20 days of receiving the summons to show cause.
Note: Satisfying all of these conditions does not automatically give you the right to sell the owner’s property. A final judgment must be entered by a judge. Also, satisfying these conditions does not prevent the owner from asserting defenses or a counterclaim. You may have given a release in exchange for payment, and the owner might assert the release as a defense. As another example, if the owner believes your work was deficient, or that you caused damage while performing your work, the owner might assert those as defenses or a counterclaim.

4. I am a material supplier. My notice to owner was served on the owner within 45 days of first delivery of the materials to the job site but after 45 days of commencing fabrication of the materials. Do I have lien rights?

The general rule is that a notice to owner must be served before commencing to furnish or within 45 days of first furnishing labor, materials, or services to the project and before the owner makes proper final payment. To apply that rule, one must know what it means to “furnish materials.”

A material supplier “furnishes” materials for purposes of the lien law when materials are first delivered to the project[1] or, if the materials are specially fabricated, when manufacture commences.[2] Materials are considered specially fabricated if the materials are not generally suited for nor readily adaptable for use in a like improvement.[3]

The question whether the notice to owner was timely turns on whether the materials were specially fabricated. If the materials were specially fabricated, then service of the notice to owner more than 45 days after commencing fabrication is not timely. If the materials were not specially fabricated, then service of the notice to owner within 45 days of first delivery of the materials to the project was timely.

[1] Stunkel v. Gazebo Landscaping Design, Inc., 660 So.2d 623 (Fla. 1995) (“a subcontractor begins to furnish services or materials for the purpose of giving notice to the owner under section 713.06(2)(a) when the services or materials are delivered to the job site.”).

[2] Oolite Indus., Inc. v. Millman Constr. Co., 501 So.2d 655, 656 (Fla. 3d DCA), review denied, 509 So.2d 1118 (Fla.1987).

[3] Surf Properties v. Markowitz Bros., 75 So.2d 298 (Fla. 1954).

5. How Do I Serve A Notice to Owner In Florida?

Florida’s Construction Lien Law has an entire section that details what “service” is.[1] Within that statutory section are provisions that are special to notices to owner and preliminary bond claim notices.[2]

Service of Notices to Owner Under Florida’s Construction Lien Law

The first method of service set forth in the statute is actual delivery. This provision states that actual delivery must be made to one of the partners, if a partnership is the person to be served; to an officer, director, managing agent, or business agent, if a corporation is to be served; or to a member or manager, if a limited liability company is to be served.[3]

The second delineated method of service is “common carrier delivery service, Global Express Guaranteed, or certified mail, with postage or shipping paid by the sender,” and this method requires “evidence of delivery, which may be in an electronic format.”[4]

For a third method, the statute allows posting on the site of the improvement, if the first or second methods discussed above cannot be accomplished.[5]

Special provision has been made for service of notices to owner and preliminary notices. If the following requirements are met, the statute deems service of a notice to owner to be complete as of the date of mailing:

(a) The notice is mailed by registered, Global Express Guaranteed, or certified mail, with postage prepaid to the person to be served at [the address shown in the notice of commencement, any amendment to the notice of commencement, the building permit application, or her the last known address];

(b) The notice is mailed within 40 days[6] after the date the lienor first furnishes labor, services, or materials; and

(c) The person who served the notice either:

(1) maintains a registered or certified mail log that shows the registered or certified mail number issued by the United States Postal Service, the name and address of the person served, and the date stamp of the United States Postal Service confirming the date of mailing; or

(2) maintains electronic tracking records generated by the United States Postal Service containing the postal tracking number, the name and address of the person served, and verification of the date of receipt by the United States Postal Service.

The statute also provides for occasions where service is by mail but the item is returned because it was refused, not forwardable, unclaimed, the addressee moved, or the item was “otherwise not delivered or deliverable through no fault of the person serving the item.” In such cases, the notice is deemed to have been served on the date of mailing if it was “sent to the last address shown in the notice of commencement or any amendment thereto or, in the absence of a notice of commencement, to the last address shown in the building permit application, or to the last known address of the person to be served.”[7]

The statute also provides for instances where a notice of commencement or building permit application does not provide complete mailing information. When this happens, the lienor should complete the addressing information in accordance with “United States Postal Service addressing standards using information obtained from the property appraiser or another public record[,] without affecting the validity of service under this section.”[8]

Timely service of the notice to owner is critical. Failure to do so is a complete defense to a lien claim.[9]

If you have questions about how to serve your notice to owner or whether a notice to owner was properly and timely served, call the Law Office of Robert S. Tanner today.

[1] Florida Statutes, section 713.18.

[2] Florida Statutes, section 713.18(2).

[3] Florida Statutes, section 713.18(1)(a). The statute also provides that, “A notice served by a lienor on one owner or one partner of a partnership owning the real property is deemed notice to all owners and partners.” Florida Statutes, section 713.18(4).

[4] Florida Statutes, section 713.18(1)(b).

[5] Florida Statutes, section 713.18(1)(c).

[6] Note that the 40 day deadline within this provision is shorter than the 45 day deadline for effecting service by any of the other methods.

[7] Florida Statutes, section 713.18(3)(a).

[8] Florida Statutes, section 713.18(3)(b).

[9] Florida Statutes, section 713.06(2)(a).