(813) 251-3013

Florida’s construction lien law is governed almost exclusively by Chapter 713, Fla. Stat. (1995). Liens under Chapter 713 apply only to work performed on privately owned property with one exception. As of October 1, 1996, a lien may be placed on the owner’s real property for money owed to a lienor for labor, services or materials furnished to improve public property required as a condition of obtaining the permit for work on the owner’s real property. We will see in a later section that public projects cannot be liened, but involve a payment bond furnished either under section 255.05, Fla. Stat. (1995) or the Miller Act.

Procedure for Perfecting Lien Rights – General Contractors

Prior to starting work all contractors should verify the ownership of the property by reviewing the Notice of Commencement. Pursuant to section 713.13, Fla. Stat. (1995), the owner is required to record it in the public records in the county where the project is located. A copy of the Notice of Commencement must also be posted at the job site. Section 713.135, Fla. Stat. (1995) also provides assistance in securing the necessary information by requiring that much of the information in the Notice of Commencement be included in the building permit application. Failure to record and post the Notice of Commencement will now result in disapproval of any inspection. § 713.135, Fla. Stat. (1995).

The Notice of Commencement is the key source document to be used throughout the course of performance to assure the perfection of your lien rights. Specifically, this document will describe the owner, the legal bounds of the property, and all persons who are to receive notices and claims under the lien statute. If a statutory payment bond is provided, a copy must be attached at the time of recordation of the Notice of Commencement. § 713.23(1)(a), Fla. Stat. (1995).

The date of recording of the Notice of Commencement sets the priority date for all subsequent construction liens. § 713.07(2), Fla. Stat. (1995); L.M. Adamson v. First Federal Savings and Loan Association, 519 So.2d 1036 (Fla. 1st DCA 1988). If there is a failure to record the Notice of Commencement, construction liens take priority as of the date of filing. Consequently, the first to file a Claim of Lien in the absence of a Notice of Commencement will be paid before any of those filing later in time.

For those contracting directly with the owner there is no need to furnish a 45 day “Notice to Owner” under the lien statute. Foley Lumber Co. v. Koester, 61 So.2d 634 (Fla. 1952); E. V. Construction Co. v. Newman, 418 So.2d 291 (Fla. 3d DCA 1982). Accordingly, the first step in perfecting a general contractor’s lien claim is the recording of the Claim of Lien. A general contractor’s Claim of Lien must be recorded in the county where the property is located within 90 days of the final furnishing of labor services or materials to the job site. A copy of the Claim of Lien must then be served on the owner and others referenced in the Notice of Commencement either before or within 15 days of recording. At least five days before any lawsuit is commenced to enforce the lien, the contractor must serve the owner with a Final Contractor’s Affidavit which recites the names and amounts of unpaid lienors, if any, contracting with the general contractor.

Failure to timely record the lien or to serve the Final Contractor’s Affidavit extinguishes the general contractor’s lien rights. Sunair Development Corp. v. Gay, 509 So.2d 1361 (Fla. 2d DCA 1987); Stenholm v. Calbeck, 265 So.2d 531 (Fla. 2d DCA 1972); Potts v. Orlando Building Service, Inc., 206 So.2d 221 (Fla. 4th DCA 1968). Service of the Final Contractor’s Affidavit is a prerequisite to filing a suit to foreclose a construction lien, but not a prerequisite for recording a Claim of Lien. In other words, a contractor need not serve a Final Contractor’s Affidavit prior to filing a Claim of Lien. Quality Industries, Inc. v. Keyes, 509 So.2d 1248 (Fla. 2d DCA 1987). Indeed, the Florida Supreme Court has ruled that a contractor may amend its lien foreclosure complaint to show delivery of a contractor’s affidavit provided it is within one year of recording the Claim of Lien Holding Electric, Inc. v. Roberts, 530 So.2d 301 (Fla. 1988).

Procedure for Perfecting Lien Rights – Subcontractors

A subcontractor’s first step in obtaining a lien claim is to serve on the owner a Notice to Owner. The Notice to Owner should be sent certified mail, return receipt requested. This notice should be served regardless of any existing decision not to lien a job since this position can change at a later date. The Notice to Owner must be received by the owner within the earliest of the \following time periods:

  1. 45 days of first furnishing labor, services or materials for the project
  2. Before final payment is made by the owner in reliance on the Final Contractor’s Affidavit

A subcontractor is not relieved of its obligation to timely file a Notice to Owner, notwithstanding the owner’s direct knowledge of the subcontractor’s work on the site. Tompkins Land Co., Inc. v. Edge, 341 So.2d 206 (Fla. 4th DCA 1976) (advice to subcontractor by owner that fire hydrant was in the wrong place was not evidence of notice under the lien statute). A copy of the Notice to Owner should also be served on any lender identified in the Notice of Commencement. If the lender is responsible for making progress payments to the general contractor, it will be obligated to seek lien waivers from subcontractors.

After this first step, the subcontractor must also follow all steps outlined above for the general contractor, except there is no need for a subcontractor to serve a Final Contractor’s Affidavit.

Procedure for Perfecting Lien Rights – Sub-subcontractors

A sub-subcontractor must take all steps taken by a subcontractor plus one additional step. A sub-subcontractor must also serve a copy of the Notice to Owner on the general contractor. A copy of the Notice of Owner should also be served on the lender as identified in the Notice of Commencement. The lender will be obligated to seek lien waivers from sub-subcontractors if it is responsible for making progress payments to the general contractor. The Notice to Owner must be served on the owner prior to final payment to the subcontractor through whom the sub-subcontractor is dealing.