HOW TO FILE A FLORIDA MECHANICS LIEN (Florida Mechanics Lien and Notice Requirement Overview)
Mechanics liens are a crucial component of the construction payment ecosystem, and a powerful tool to make sure construction companies get paid what they deserve. However, the requirements surrounding mechanics liens and notices are complex and confusing. This guide sets out and simplifies the rules
Who Can File?In Florida, the protection of a mechanics lien is broadly available. The following parties have mechanics lien rights: Prime contractors, subcontractors, sub-subs, laborers, material supplier to owner/contractor/sub/or sub-sub, and professionals (architect, landscape architect, interior designer, engineer, surveyor or mapper).
In order to have lien rights in Florida, a license is a prerequisite for those entities by which license is required by Florida law. If a contractor is not licensed as required, the sub's, sub-sub's, and supplier's and supplier's lien rights are not affected. Parties without mechanics lien protection in Florida include suppliers to suppliers, and suppliers to any subcontractor beyond the second tier. For landscapers, "planting for landscaping purposes" is considered a permanent improvement, though simple landscaping maintenance (such as lawn mowing) does not qualify.
PRELIMINARY NOTICE (Notice to Owner)Preliminary notices (called "Notices to Owner" in Florida) are very closely integrated into the fabric of the state's mechanics lien laws. Most participants will need to send a notice, and if a notice is required pursuant to the statutes, the requirement is very firm.
Any party (except wage laborers) who does not have a direct contractual relationship with the property owner is required to serve a Notice to Owner. Laborers and design professionals are not required to provide the preliminary notice to owner.
Who Must Receive Notice?
The notice to owner must be served on the owner, and all other parties "up the chain" from the party providing the notice.
Florida's mechanics lien rules are unique in that property owners or agents of the owner are required to file a "Notice of Commencement" at the start of the project, and when this is done, they are allowed to appoint an "Owner Designee." This "Owner Designee" is a person or organization who will receive Notice to Owner filings on behalf of the owner. Generally speaking, when an Owner Designee is designated in a Notice of Commencement, the furnishing party can provide notice to that party instead of the actual owner.
There are many complexities presented, however, in the case the Owner Designee changes, is not designated in the Notice of Commencement, or if a Notice of Commencement cannot be located. Another complexity may exist if the ownership of a property transfers or changes during the course of a construction project.
A notice to an owner served on a lender must be in writing, must be served in accordance with s. 713.18, and shall be addressed to the persons designated, if any, and to the place and address designated in the notice of commencement.
When determining who must receive notice, senders can rely on publicly available information.
Timing of Notice to Owner
Parties required to send the notice to owner must send it within the earlier of:
1) 45 days from first furnishing services or materials,
2) 45 days from when work begins on making specialty materials; or
3) before owner's final payment to prime contractor.
If the contractor posted a payment bond, and the property owner recorded the bond with his Notice of Commencement, all lien claimants who did not contract directly with the owner must serve the contractor a Notice to Contractor within 45 days of the date on which they first supplied labor or materials.
How to Send the Notice
The notice to owner should be sent by registered, Global Express Guaranteed, or certified mail, with postage prepaid.
When is Notice Effective?
The notice to owner is considered delivered at the time of mailing only if the notice is sent within 40 days of first furnishing labor or materials. Otherwise, the notice is considered served on the date of receipt.
Content of Preliminary NoticeThe notice to owner must set 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. A sub-subcontractor or a materialman to a subcontractor must serve a copy of the notice on the contractor as a prerequisite to perfecting a lien under this chapter and recording a claim of lien.
A materialman to a sub-subcontractor must serve a copy of the notice to owner on the contractor as a prerequisite to perfecting a lien under this chapter and recording a claim of lien. A materialman to a sub-subcontractor shall serve the notice to owner on the subcontractor if the materialman knows the name and address of the subcontractor. The notice must be served before commencing, or not later than 45 days after commencing, to furnish his or her labor, services, or materials, but, in any event, before the date of the owner's disbursement of the final payment after the contractor has furnished the affidavit under subparagraph (3)(d)1.
The notice must be served regardless of the method of payments by the owner, whether proper or improper, and does not give to the lienor serving the notice any priority over other lienors in the same category; and the failure to serve the notice, or to timely serve it, is a complete defense to enforcement of a lien by any person. The serving of the notice does not dispense with recording the claim of lien. The notice is not a lien, cloud, or encumbrance on the real property nor actual or constructive notice of any of them.
Required Language on Preliminary NoticeThe notice may be in substantially the following form and must include the information and the warning contained in the following form:
WARNING! FLORIDA'S CONSTRUCTION LIEN LAW ALLOWS SOME UNPAID CONTRACTORS, SUBCONTRACTORS, AND MATERIAL SUPPLIERS TO FILE LIENS AGAINST YOUR PROPERTY EVEN IF YOU HAVE MADE PAYMENT IN FULL. UNDER FLORIDA LAW, YOUR FAILURE TO MAKE SURE THAT WE ARE PAID MAY RESULT IN A LIEN AGAINST YOUR PROPERTY AND YOUR PAYING TWICE. TO AVOID A LIEN AND PAYING TWICE, YOU MUST OBTAIN A WRITTEN RELEASE FROM US EVERY TIME YOU PAY YOUR CONTRACTOR. NOTICE TO OWNER
To (Owner's name and address)
The undersigned hereby informs you that he or she has furnished or is furnishing services or materials as follows:
(General description of services or materials) for the improvement of the real property identified as (property description) under an order given by____________. Florida law prescribes the serving of this notice and restricts your right to make payments under your contract in accordance with Section 713.06, Florida Statutes.
IMPORTANT INFORMATION FOR YOUR PROTECTION
Under Florida's laws, those who work on your property or provide materials and are not paid have a right to enforce their claim for payment against your property. This claim is known as a construction lien. If your contractor fails to pay subcontractors or material suppliers or neglects to make other legally required payments, the people who are owed money may look to your property for payment, EVEN IF YOU HAVE PAID YOUR CONTRACTOR IN FULL.
- RECOGNIZE that this Notice to Owner may result in a lien against your property unless all those supplying a Notice to Owner have been paid.
- LEARN more about the Construction Lien Law, Chapter 713, Part I, Florida Statutes, and the meaning of this notice by contacting an attorney or the Florida Department of Business and Professional Regulation. (Lienor's Signature) (Lienor's Name) (Lienor's Address)
Copies to: (Those persons listed in Section 713.06(2)(a) and (b), Florida Statutes)
The form may be combined with a notice to contractor given under s. 255.05 or s. 713.23 and, if so, may be entitled "NOTICE TO OWNER/NOTICE TO CONTRACTOR."
MECHANICS LIENContents of a Florida Mechanics Lien
A claim of lien shall state the name of the lienor and the address where notices or process under this part may be served on the lienor. The name of the person with whom the lienor contracted or by whom she or he was employed must also be included.
The labor, services, or materials furnished and the contract price of that work should be included. Materials specially fabricated somewhere other than the site of the improvement for incorporation in the improvement but that have not yet been incorporated shall be separately stated in the claim of lien.
A description of the real property sufficient for identification must be included, as must the name of the owner, the time when the first and the last item of labor or service or materials was furnished, and the amount unpaid the lienor for such labor or services or materials and for unpaid finance charges due under the lienor's contract.
If the lien is claimed by a person not in direct contract with the owner, the date and method of service of the notice to owner must be included. If the lien is claimed by a person not in direct contract with the contractor or subcontractor, the date and method of service of the copy of the notice on the contractor or subcontractor.
Along with the amounts described in the Contents of a Mechanics Lien section, the following restrictions apply:
Extraneous amounts for anything not specifically contributing to the permanent improvement of real property are not allowed in a lien claim. However, attorney's fees are recoverable as costs in a lien foreclosure action (pursuant to F.S. 713.29). Despite being statutorily available to the "prevailing party," recent Florida cases shows that it is difficult to be certain as to whether you will or will not be awarded attorney fees.
Unlike attorney's fees and "extraneous amounts," it is important to note that Florida is among a minority of states that expressly allows claimants to include "unpaid finance charges" within the lien claim. Specifically, F.S. ?713.08(1)(g) provides that the lien claim must state "The amount unpaid the lienor for such labor or services or materials and for unpaid finance charges due under the lienor's contract."
Florida requires that the property be described sufficiently for identification. This may not necessarily rise to a full a legal property description, but the more specifically and fully the property can be described, the better.
Florida law requires that a mechanics lien must be notarized to be valid.
A mechanics lien may be filed against an individual condominium just as against every other property. If a claim is to be filed against a condominium project as a whole, such that it is to attach to each unit in a condominium development, each individual property owner must have consented to the project. However, if the condominium association consents to or contracts for the work, each individual condominium owner is presumed to have consented.
DEADLINES & NOTICE OF FILINGDeadline to File
Florida law requires that all lien claimants file their mechanics lien within 90 days of the date they last supplied labor or materials.
Deadline to Enforce Lien
Generally, a Florida mechanics lien must be enforced within one year of the date the lien was recorded. However, this time period can be both extended and shortened. If the lien claimant supplied labor or materials after the original lien was recorded, and filed an amended claim of lien noting that later date, the one-year time limitation runs from the date the amended lien was filed.
Either of those one-year periods may be shortened, however. If the owner or owner's agent files and serves a Notice of Contest of Lien, the time limit is shortened to 60 days from that date. Also, any interested party may shorten the time limit to a mere 20 days by filing and serving a summons and complaint to show cause why the lien should not be enforced by suit, or vacated.
Notice of Recordation
Florida law requires that the Claim of Lien be served on the owner of the liened property either prior to the recording of the lien or within 15 days of its recording. Failure to do so will render the lien voidable to the extent that the failure is shown to be prejudicial to any person entitled to rely on such service. The notice may be served by personal delivery, by sending by registered or certified mail return receipt requested, by sending second-day delivery with evidence of delivery, or if none of those can be accomplished, by posting on the premises.
REQUIRED TEXT - LIEN FORMThe claim of lien shall be sufficient if it is in substantially the following form, and includes the following warning:
THIS LEGAL DOCUMENT REFLECTS THAT A CONSTRUCTION LIEN HAS BEEN PLACED ON THE REAL PROPERTY LISTED HEREIN. UNLESS THE OWNER OF SUCH PROPERTY TAKES ACTION TO SHORTEN THE TIME PERIOD, THIS LIEN MAY REMAIN VALID FOR ONE YEAR FROM THE DATE OF RECORDING, AND SHALL EXPIRE AND BECOME NULL AND VOID THEREAFTER UNLESS LEGAL PROCEEDINGS HAVE BEEN COMMENCED TO FORECLOSE OR TO DISCHARGE THIS LIEN. CLAIM OF LIEN
State of ____
County of ____
Before me, the undersigned notary public, personally appeared ____, who was duly sworn and says that she or he is (the lienor herein) (the agent of the lienor herein ____), whose address is ____; and that in accordance with a contract with ____, lienor furnished labor, services, or materials consisting of ____ on the following described real property in ____ County, Florida: (Legal description of real property)
owned by ____ of a total value of $____, of which there remains unpaid $____, and furnished the first of the items on ____, (year) , and the last of the items on ____, (year) ; and (if the lien is claimed by one not in privity with the owner) that the lienor served her or his notice to owner on ____, (year) , by ____; and (if required) that the lienor served copies of the notice on the contractor on ____, (year) , by ____ and on the subcontractor, ____, on ____, (year) , by ____. (Signature)
Sworn to (or affirmed) and subscribed before me this ____ day of ____, (year) , by (name of person making statement) . (Signature of Notary Public - State of Florida) (Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known ____ OR Produced Identification ____
Type of Identification Produced____________
CONCLUSIONA mechanics lien can be a powerful tool to get paid on construction projects. But, the efficacy of the tool is dependent on the lien being valid. Following the necessary notice requirements and procedures from the beginning of the project, and following the lien filing rules in order to make sure the lien is valid greatly increase a lien's ability to result in payment.
A potential lien claimant should make sure to give careful attention to the requirements if filing themselves, utilize software products to manage lien rights as an intermediate step, or obtain assistance from attorneys if they need legal guidance or assistance.