Florida Lien Law
Non-lawyers in Florida may not draft a Claim of Lien, Satisfaction of Claim of Lien, prepare a Notice of Commencement, Construction Lien Documents, lien waivers, demand letters, contracts, determine the timing, method or form of giving notices, etc. See The Florida Bar re: Advisory Opinion, 681 So.2d 1119 (Fla. 1996); The Florida Bar re: Proposed Advisory Opinion FAO #2012-2. If a non-lawyer (i.e. a construction notice company who is not a law firm) claims they can prepare Construction Lien documents for your construction company, please know that such service may constitute the unlicensed practice of law or otherwise be illegal under Florida law. We recommend you only use Board Certified Construction Lawyers to prepare your company’s Construction Lien documents (i.e. claim of lien, satisfaction of lien, release of lien, notice of commencement, lien waiver, demand letter, contract, etc.).
Williams Law Firm has licensed lawyers prepare your Florida Construction Lien documents. Since preparation of Construction Lien documents may constitute the practice of law in Florida, we require a fully signed Legal Representation Agreement before our Law Firm can provide these services. Please contact us today at 407-926-4100 in inquire about our services.
**Florida’s Lien Laws have harsh time limitations and pitfalls for lien and bond claims with the law changing yearly. ALWAYS use the most current statutory forms and consult an experienced, board certified, construction attorney about your particular claim.**
STEP #1 – ALWAYS OBTAIN RECORDED NOTICE OF COMMENCEMENT “NOC” FIRST – This is critical! Lienors have a legal right to rely on NOC (if not available, then must use building permit application as source document). NOCs are recorded in official public records of county where project located. Make sure you obtain all pages of the recorded NOC. Any trouble locating NOC, contact attorney. Use NOC as source document for preparing and delivery of notices and claims.
CHECK NO BOND EXEMPTING PROJECT–Payment bonds are required to be recorded with NOC you already obtained in STEP #1 above (if not attached to NOC, re-check NOC before sendingNTO andlien claim). If bonded, then follow claim procedures identified in payment bond. Notice to Contractor may be required. If “conditional” payment bond (i.e. bond states that surety’s obligation only extends to payments made by owner to contractor), contact attorney.
TIMELY AND PROPER NOTICE TO OWNER “NTO”–Must be received by owner within 45 days of day you first started work. §713.06(2)(c) Fla. Stat. contains the form to use. Include new WARNING language. Send completed form to everyone listed in NOC, see STEP #1 above. OK to send NTO before starting work. Any question, contact attorney. NTO Form at: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0713/Sections/0713.06.html
CONFIRM OWNERSHIP–If party contracting for improvement has no legal or equitable interest in the property, a construction lien may not be enforceable. Also, you want to send your NTO and Claim of Lien to the proper owner. If leased or condominium property, consult attorney. Ownership records can be found at STEP #1 link or by going to the county’s property appraiser’s website. Any question, contact attorney.
FORM OF CLAIM OF LIEN – §713.08(3) Fla. Stat. contains the form to use. Includenew WARNING language.Form at: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0713/Sections/0713.08.html Any question, contact attorney.
CONFIRM PROPERTY’S LEGAL DESCRIPTION–See STEP #1, use legal description from NOC and refer to recorded NOC book/page number too in legal description of lien claim. Any question, contact attorney.
ENSURE TIMELY CLAIM AND DETERMINING LAST DAY OF WORK–Must be recorded within 90 days of last day of contract work (or final furnishing). Final furnishing does not include time for punchlist or warranty work. Any question, contact attorney.
CHECK LIENOR PROPERLY LICENSED, IF NECESSARY– Unlicensed = NO lien rights. Entity signing Lien must have DBA license. Verify Lienor licensed by searching at this link: http://www.myfloridalicense.com/dbpr/. Must be licensed at time of signing contract. Don’t forget to check if local license needed. Any question, contact attorney.
ENSURE AMOUNT CLAIMED IS LIENABLE–Lien only for work performed pursuant to signed contract and signed change orders. Do not lien for unsigned change orders not authorized by owner, overhead, lost profit, bonuses, non-permanent work, delays, acceleration, claims, unperformed work, materials not furnished, etc. A lien for improper amounts could subject you to fraudulent lien exposure and significant statutory penalties, including loss of lien rights. Any question, contact attorney.
REVIEW BACK-UP FOR ACCOUNTING–Review your contract, change orders, and project billings to ensure nothing non-lienable is included in the lien amount. Any question, contact attorney.
ENSURE LIENOR HAS LIEN RIGHTS – §718.01(18) identifies those lienors entitled to lien. They are the contractor, subcontractors, sub-subcontractors, laborers, professional lienors, materialmen contracting with owner, contractor, subcontractor or sub-subcontractor. All others have no lien rights. Any question, contact attorney.
APPORTIONING AMOUNT, IF NECESSARY–If perform work on multiple lots or parcels under 1 direct contract, then one claim of lien may be OK. However, if multiple contracts, then need separate liens and lien amount must be properly apportioned for the work associated with each particular lot or parcel. Any question, contact attorney.
PLACE OF RECORDING–Must record in county where project is located.
Florida’s Construction Lien Laws allow you to lien the real property you improved if you are not timely paid. However, if you do not have a direct contract with the real property owner, then you must timely and properly serve the Owner (and possibly others) a “Notice to Owner” and follow Florida’s Lien Laws in order to preserve your rights later to record a claim of lien. The Notice to Owner or “NTO” for short, puts those you serve it to on “notice” that you are working on their job and you will be looking to them for payment for your work. If your Notice is timely and properly served, then you can preserve your rights to possibly Get Paid from a forced sale of the property if you do not get paid what you are owed.
If the job is bonded (i.e. there is a payment bond – usually recorded with the Notice of Commencement, or can be requested from the General Contractor or Owner), and you do not have a direct contract with the General Contractor, then you must timely and properly serve the General Contractor and Owner with a Notice to Contractor.
FLORIDA CONSTRUCTION LIEN LAW ALLOWS SOME UNPAID CONTRACTORS, SUBCONTRACTORS, AND MATERIAL SUPPLIERS TO FILE LIENS AGAINST PROPERTY, EVEN IF THE OWNER HAS MADE PAYMENT IN FULL TO THE GENERAL CONTRACTOR. UNDER FLORIDA LAW, AN OWNER’S FAILURE TO MAKE SURE THAT THOSE GIVING THE OWNER A NOTICE TO OWNER ARE PAID, MAY RESULT IN A LIEN AGAINST THE OWNER’S PROPERTY AND THE OWNER HAVING TO PAY TWICE. TO AVOID A LIEN AND PAYING TWICE, OWNER’S NEED TO MAKE PROPER PAYMENTS BY GETTING A LIEN RELEASE FROM THOSE WHO HAVE SERVED NOTICE TO OWNER EVERY TIME THE OWNER PAYS ITS CONTRACTOR.
Disclaimer:This article is intended to be a source of general information on a specific construction-related topic. Its content should not be considered legal advice. See Terms of Use for additional information. If you are seeking legal advice, please consult with professional legal counsel. For assistance with any specific construction-related issue, please contact Glenn Williams, Esq. directly at 407-926-4100.
