Working With Florida Construction Liens
The Florida Construction Lien Law is a great tool for contractors and others in the building industry to recover the money they are owed, but there are stringent rules and time frames that, if not strictly followed, may result in loss of lien rights or worse.
At Magaziner Law, P.A., we can help contractors protect themselves by effectively employing liens for the projects they work on. We know the deadlines and can ensure that your liens are filed on time and that they accurately reflect your exposure on a job.
You may want to save money and file your liens on your own, but that may not be cost-effective. You may become busy, forget a deadline, or make some factual mistake with the filing. A defective lien filing can be very expensive.
Years of Real-World Experience With Liens
Because our founding lawyer has over a decade of experience in the construction industry and has handled numerous liens, he understands the process, knows what is required and knows how to deal with problems when they occur.
As a general contractor, you probably hire specialty tradespeople all the time to deal with specific aspects of your project. Hiring us to assist with your liens is similar to hiring a specialty tradesperson to ensure that an element of a project is completed correctly, on time, and on budget.
A Brief Summary of Lien Law Requirements
The following is a brief (really) summary of the Florida Construction Lien Law sections. We recognize that these requirements may be less than clear, and we help you perfect your liens correctly so that they are fully enforceable, should the need arise.
Notice to Owner
Under Florida Statute 713.06 “persons not in privity with the owner” (i.e. materialmen, laborer, subcontractors, and sub-subcontractor who did not contract directly with an owner) has a right to make a claim of lien on the real property improved for any money that is owed to him or her for labor, services, or materials furnished when the total contract price exceeds $2,500. In most circumstances, the total amount of allowable liens must not exceed the amount of the contract price fixed by the direct contract between the owner and the contractor.
To perfect the right to such a claim, the lienor must serve a Notice to Owner setting forth the lienor’s name and address, a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished. The notice must be served upon the owner, and generally upon the direct contractor and/or subcontractor as well, no later than 45 days after furnishing the labor, services, or materials, or before the owner’s disbursement of the final payment after the contractor, whichever occurs first. If the materials being furnished by a materialman are “special order” or “custom materials” or otherwise specially fabricated materials, and are not readily useable on a different project, the clock begins to run at the time such materials begin to be made.
Failure to serve the notice, or to timely serve it, is a complete defense to enforcement of the claim of lien.
Claim of Lien
Claim of Lien. Under Florida Statute 713.08, a contractor, laborer, materialman, architect, landscape architect, interior designer, engineer, or surveyor and mapper in direct privity (contract) with the owner may make a claim of lien against the owner’s improved property by recording with the Clerk of Court for the county where the property is located. The claim must be recorded within 90 days of the lienor’s last day of scope work or 90 days from the termination of contract or stop work order by owner or stop work notice by the lienor, whichever occurs first.
Scope work does not include punch list, warranty work, or other corrective measures, or inspections. The clock technically begins the day following the last date of scope work and if the last day falls on a weekend or observed holiday, it rolls over to the next business day.
A copy of the claim of lien must be served upon owner within 15 days of return of the recorded lien by the Clerk. Failure to serve a copy of the claim of lien within the 15-day requirement may adversely affect the lienor’s rights if owner can show harm as a consequence of not receiving the copy of the claim of lien within the 15 days.
Before the lienor can foreclose on the claim of lien against owner’s property, the lienor must serve both the claim of lien and a final payment affidavit (under Florida Statute 713.06) and wait at least 5 days from the date of service of the last of the two documents (if service of each is not done at the same time).
The claim of lien remains in effect for a period of one year from the date of recording unless it is satisfied, or owner serves lienor with a recorded notice of contest of lien, or the lienor is served with a 20-day summons to show cause to the court, or suit is filed to enforce the lien by the lienor. If a notice of contest of lien is served on the lienor, the lienor has 60 days from the date that the clerk certifies that a notice of contest of lien was served to file suit.
If the lienor is served with a 20-day summons to show cause, the lienor has 20 days from service to file suit. Otherwise, the lienor has one year to file suit to enforce his or her claim of lien before the claim is forfeit. Filing suit will stay the expiration of the lien until the suit for enforcement is resolved. A lien cannot be renewed by re-recording it.
Request for Copy of List of Subs and Suppliers
Under Florida Statute 713.165, an owner may demand the contractor provides a list of all subcontractors and suppliers who have any contract with the contractor to furnish any material or to perform any service in furtherance of the project.
The request must be in writing and delivered by registered or certified mail to the address of the contractor shown in the contract or the recorded notice of commencement. The contractor must respond within 10 days of receipt with a list of all such subcontractors and suppliers. If the contractor fails to furnish the list, the contractor forfeits any right to assert a lien against the owner’s property to the extent the owner is prejudiced by the contractor’s failure to furnish the list or by any omissions from the list.
Request for Sworn Statement of Account by Owner
Under Florida Statute 713.16, an owner may, at any time before suit is filed to enforce the related lien, request the lienor to furnish a written statement of account consisting of a written statement under oath showing the nature of the labor or services performed and/or the materials furnished, and, if known, the amount paid on account to date, the amount due, and the amount to become due, if known, as of the date of the statement by the lienor.
Any such demand to a lienor must be served on the lienor at the address and to the attention of any person who is designated to receive the demand in the notice to owner, and must include a description of the property and the names of the owner, the contractor, and the lienor’s customer.
The lienor must respond within 30 days of receipt of the demand and must substantially comply with the form allowed within that section of the statute. Failure to respond, or furnishing a false or inaccurate response, may deprive the lienor of his or her lien rights unless the owner serves more than one demand for statement of account on a lienor and none of the information regarding the account has changed since the lienor’s last response.
Request for Sworn Statement of Account by Lienor
Also under Florida Statute 713.16, a lienor who has recorded his or her claim of lien may demand a written sworn statement of account from the owner showing the amount of the direct contract under which the lien was recorded, the dates and amounts paid by or on behalf of the owner for all improvements; the reasonable estimated costs of completing the scope of the direct contract; and, if known, the actual cost of completion.
Any written demand served on the owner must also include a description of the property and the names of the contractor and the lienor’s customer, as set forth in the lienor’s notice to owner. If the owner does not provide the statement within 30 days of the demand, or provides a false or fraudulent statement, the owner cannot be deemed the prevailing party for purposes of an award of attorney fees under Florida Statute 713.29, as long as the lienor includes the statutory warning statement in conspicuous type and in substantially compliant form.
Contact Magaziner Law, P.A., for Help With Liens
Filing liens must be done correctly and within the strict deadlines mandated by statute in Florida. Failure to do so will cost you your lien and your material. Call our Tampa Bay office at 727-900-7557 or use our online contact form.