What Law Governs?
In general, Chapter 713, Florida Statutes, governs private projects and Chapter 255 governs public project. Federal public projects are governed by federal law.
Preliminary Notice to Owner
The owner of real property requires notice by any entity that did not directly contract with it. In addition, each successive tier also requires notice. For example, a sub-subcontractor is required to provide notice to the general contractor and the owner that it is performing work on the property and identify the subcontractor it is working under. The notice to owner must be served prior to the start of the work or no later than 45 days after commencing to furnish labor, services, or materials. The last trades and those working on projects that progress quickly, must be mindful of the fact the 45 days may be shortened and the notice to owner must be provided before the date of the owner's disbursement of the final payment after the contractor has furnished its final affidavit pursuant to Section 713.06, Florida Statutes. The notice to owner and notice to contractor may be combined in the same form.
Claim of Lien
At the conclusion of the project or at any time during its progress, an unpaid lienor must record a claim of lien within 90 days of final furnishing. Final furnishing means the last date the lienor furnishes labor, services, or materials and is not to be measured by other standards, such as the issuance of a certificate of occupancy or the issuance of a certificate of final completion. Importantly, final furnishing does not include punchlist, warranty work, or other correction of deficiencies in the lienor's previously performed work. The lien must be served on the owner and anyone else requiring notice as set forth in the notice of commencement, before or within 15 days after recording.
Lien May Expire by Operation of Law
After the claim of lien is recorded, the lienor has one year in which to file a foreclosure action. The owner or its agent may shorten the one year by recording a notice of contest of claim of lien. If contested, the lienor must file suit within 60 days after service of the notice or the lien is extinguished automatically. The owner or any other interested party may also shorten the one year by filing a complaint demanding the lienor show cause within 20 days why the lien should not be enforced by action or vacated and canceled of record. If the lienor fails to show cause or otherwise fails to commence a foreclosure action within 20 days, the court is required to cancel the lien.
Public and private projects with unconditional payment bonds are exempt from liens. The notice to owner/contractor discussed above is still required. In addition, and as a condition precedent to recovery under the bond, the lienor is required to serve a written notice of nonpayment to the contractor and the surety not later than 90 days after the final furnishing of labor, services, or materials by the lienor. The bond may require additional notices and should always be inspected. A private project with a conditional payment bond requires both a claim of lien and a notice of nonpayment. When the contractor's written contractual obligation to pay lienors is expressly conditioned upon and limited to payments made by the owner to the contractor, this bond also protects the surety's obligation to pay. To be effectual, the notice of commencement must identify the conditional payment bond and certain language in a particular size.
Hopefully, you will be paid without the necessity of recording a claim of lien or at least without having to file a foreclosure action. During the progress of the job and upon final payment, you will most likely be required to execute a lien release or waiver. A person may not require a lienor to furnish a lien waiver or release of lien that is different from the forms in subsection (4) or subsection (5) of section 713.20, Florida Statutes. However, you may voluntarily agree to a different form in your contract. If you do, the agreed upon release will be enforced in accordance with its terms. Even though you may voluntarily agree to a lien waiver in a form other than that provided by statute, you may not waive your right to a lien in advance. A lien right may be waived only to the extent of labor, services, or materials furnished and any waiver of a right to claim a lien that is made in advance is unenforceable. ? 713.20, Fla. Stat.
Florida's Construction Lien Law does not prohibit other remedies, including those available under any contract. ? 713.30, Fla. Stat. You may maintain simultaneous actions for lien foreclosure and breach of contract. Alternatively, if you lose lien rights, you may still look to the contract for payment. Realistically, however, the rise of pay when paid clauses make collecting from the contractor very difficult if the owner did not honor its payment obligations.