Florida State Lien Law Summary

Licensed contractor, sub, or sub-sub; laborer; material supplier to owner, contractor, sub or sub-sub (i.e., not supplier to supplier, and not supplier to subcontractor beyond the second tier); and professional (e.g. architect, landscape architect, interior designer, engineer, or surveyor and mapper). (Note that the requirement of licensing as a prerequisite to lien rights applies only to those entities that are required by law to be licensed.)   Note that a firm that provides temporary help can also bring a claim. Residential cleaning, maintenance, and concierge services provided on behalf of condominium association are not lienable. Those providing consultant services to help the owner through the construction process, but do not supply labor or materials to the project, do not have lien rights. Suppliers and installers of audio entertainment systems are not required to be licensed. Note that where a contractor or sub is not licensed, their suppliers and licensed subs can still enforce their contract, lien or bond claims, but the unlicensed sub cannot bring a lien claim or a claim for breach of its contract. In addition, the unlicensed sub can also still be sued by the licensed general contractor with whom it contracted. [Earth Trades, Inc. v. T & G Corp., 108 So.3d 580 (Fla.,2013)] Note, however, that the contractor cannot make a claim against the contractor’s bond. [713.01, 713.02; MMII, Inc. v. Silvester, 42 So.3d 876 (Fla.App. 4 Dist.,2010); Parc Cent. Aventura East Condominium v. Victoria Group Services, LLC, 54 So.3d 532 (Fla.App. 3 Dist.,2011); Medellin v. MLA Consulting, Inc., 69 So.3d 372, (Fla.App. 5 Dist.,2011); Troup Bros., Inc. v. State for Use and Benefit of Meadows Southern Const. Co., 135 So.2d 755 (Fla.App. 2 Dist., 1961)] If the claimant is unlicensed, they MAY be allowed to enforce the contract, but that will likely be determined on a case-by-case basis. [489.128; MGM Const. Services Corp. v. Travelers Cas. & Sur. Co. of America, 57 So.3d 884, (Fla.App. 3 Dist. 2011); Austin Bldg. Co. v. Rago, Ltd., 63 So.3d 31 (Fla.App. 3 Dist.2011)] Total of all liens is limited to general contract amount, unless the owner disburses the final payment to the contractor without receiving the contractor’s Final Payment Affidavit. [713.06] Note that there are special rules where the project is a leasehold; see the discussion above in the “what work is covered” section. There are special rules, not discussed here, for a bond posted after the liens are filed. [713.245] Note, finally, that construction contracts can be enforced AGAINST an unlicensed contractor, but not BY an unlicensed contractor. [713.02, 489.128]

Same as private works (except the contractor). Note, however, that on a construction-management or design-build contract, if the public owner does not include in the bond amount the cost of design or other non-construction services, the bond may not cover these services, or the bond may exclude from its coverage the people providing these services. [255.05; Troup Bros., Inc. v. State for Use and Benefit of Meadows Southern Const. Co., 135 So.2d 755 (Fla.App. 2 Dist., 1961)] NOTE that one who supplies specially fabricated materials that are not ultimately incorporated into the project may still bring a claim against the bond. In addition, special plants may be considered “specially fabricated materials.” [Aquatic Plant Management, Inc. v. Paramount, 907 So.2d 600, 32 Fla. L. Weekly D2821 (Fla.App. 4 Dist.,2007)]

-Improvement and the land that is improved, including fixtures (see blue highlighted discussion at the bottom of this section regarding tenant improvements); or

-Contractor’s payment bond, where one is provided, which must be in at least the amount of the original contract price, must be provided before commencing the construction of the improvement under the direct contract, and a copy of the bond must be attached to the notice of commencement when the notice of commencement is recorded. [713.01(14), 713.05, 713.06, 713.23]

-Conditional payment bond, where one is provided. Note that where a conditional payment bond is given, it is an additional optional remedy – a lien can and should still be filed. [713.245; Schor and update at §10.02[E]]

-NOTE that there is established a Homeowners Construction Recovery Fund to compensate aggrieved homeowners who obtain a judgment or arbitration award against a licensed contractor or other business on the grounds of financial mismanagement or misconduct,; abandoning a construction project; or making a false statement with respect to a project; and who are unable to recover the judgment amount. The procedure for recovery from the fund is not set out here. [489.1401]

NOTE that where the lease expressly provides that the lessor’s interest shall not be subject to a lien, the lessee is required to notify the contractor of that provision, and failure to do so renders the contract voidable at the option of the contractor. NOTE ALSO that if, prior to recording the Notice of Commencement, the lessor of the property records either (a) the lease or a memorandum of the lease that contains specific language prohibiting the lessor’s interest in the property from being subjected to liens based on improvements made by the lessee, or (b) a notice advising that leases for rental of premises on the property prohibit such liability (and in fact the lien in question prohibits such liability), then the lessor’s interest will not be subject to the lien. A potential lien claimant can serve written demand (separate from a prelien) on the lessor for a copy of the lease provision prohibiting liability, identifying the lessee and the premises. If the lessor fails to serve a true and verified copy of the lease provision within 30 days after the demand, then the lessor’s interest will be subject to that claimant’s lien. The written demand must include a warning in conspicuous type in substantially the following form: WARNING   YOUR FAILURE TO SERVE THE REQUESTED VERIFIED COPY WITHIN 30 DAYS OR THE SERVICE OF A FALSE COPY MAY RESULT IN YOUR PROPERTY BEING SUBJECT TO THE CLAIM OF LIEN OF THE PERSON REQUESTING THE VERIFIED COPY. [713.10] NOTE that if this Notice of Lien Prohibition is recorded, and the lease does not require the tenant to make improvements, then a claimant contracting with a tenant will not have lien rights against the owner’s property, even if the owner records a Notice of Commencement. [MHB Const. Services, L.L.C. v. RM-NA HB Waterway Shoppes, L.L.C., 74 So.3d 587 (Fla.App. 4 Dist.,2011)]

Payment and performance bond of general contractor, or other security filed by the general contractor; and the retainage. Note, however, that there is only retainage where the contract is for $200,000 or less. [255.05, 255.052, 255.078; Schor at §10.01[B]]

LIEN:

ALL CONTRACTS:

Material suppliers, subs and sub-subs not in privity with the owner. Those with a direct contract with the owner must give special notice to obtain final payment. See sections below re: INTERIM NOTICE. [713.06(1) and (3)(d)]

NOTE that the notice to owner and the notice to contractor can be combined, and called “notice to owner/notice to contractor.”   [713.06] NOTE ALSO that where an owner transfers ownership of the property to a related entity after claimant has contracted with the owner, the claimant is not required to give the new owner a preliminary notice. (But be sure that the new entity is closely related to the previous owner before relying on this holding.) [Schor at §10.03[C]; Marble Unlimited, Inc. v. Weston Real Estate Inv. Corp., 125 So.3d 286 (Fla.App. 4 Dist. 2013)]

ALL 1-4 UNIT RESIDENTIAL CONTRACTS:

All contracts between the owner and the general contractor on a 1-4 unit residential project must include a specific notice. NOTE, however, that this notice need not be given when the owner is a licensed contractor, or is someone who creates, sells or leases parcels of land in the ordinary course of business. [713.015]

OWNER-OCCUPIED RESIDENCE:

The contractor contracting for the repair, restoration, improvement or construction of an owner-occupied residence, where the value of all labor and materials exceeds $2,500. [489.1425]

CONTRACTOR’S BOND:

A lienor not in privity with the contractor, except a laborer. It is best to obtain a copy of the bond, to be sure of the requirements. [713.23]

All claimants, except laborers, who do not have a contract directly with the contractor. [255.05(2)(a)2]

LIEN:

ALL CONTRACTS:

By Subs, Sub-subs & Materialmen:

-To the owner (in all cases);

-To the contractor (where supplying sub or sub-sub);

-To the sub (where supplying sub-sub).

-Must also give copy to person designated by owner in Notice of Commencement, if any, but failure to do so is not fatal.   [713.06(2)]

-May also give a copy to the lender. But if the lender receives a copy and pays the general contractor anyway, only the owner has a claim against the lender; no lienor has a claim against it.

NOTE that where the owner and contractor are identical, and have the same corporate officer, you need not send separate copies of the Notice to Owner to both the owner and the contractor; one notice will suffice. NOTE ALSO that where an owner transfers ownership of the property to a related entity after the claimant has contracted with the owner, the claimant is not required to give the new owner a preliminary notice. (But be sure that the new entity is closely related to the previous owner before relying on this holding.) [Schor at §10.03[C]; Marble Unlimited, Inc. v. Weston Real Estate Inv. Corp., 125 So.3d 286 (Fla.App. 4 Dist. 2013)]

NOTE that the notice to owner and the notice to contractor can be combined, and called “notice to owner/notice to contractor.” [713.06]

RESIDENTIAL CONTRACTS OF 1-4 UNITS:

The notice, if required, must be included in the contract between the owner and the general contractor. [713.015]

OWNER-OCCUPIED RESIDENCE:

To the homeowner. [489.1425]

CONTRACTOR’S BOND:

To the contractor. Strongly recommend obtaining a copy of the bond, to be sure of the requirements. [713.23; Current Builders of Florida, Inc. v. First Sealord Sur., Inc., 984 So.2d 526 (Fla.App.2008)]

The contractor. [255.05]

LIEN:

ALL CONTRACTS:

By Subs, Sub-subs and Materialmen:

Before commencing or within 45 days after commencing to furnish services or materials, or within 45 days of commencing to make specially fabricated materials; must be before owner or contractor makes final payment to contractor or subcontractor through whom the claimant is working, and before abandonment. [713.06(2)(a) and case law (Stunkle v. Gazebo); Schor at §10.03[C] (“Subcontractors”)] NOTE that if the notice is mailed by certified or registered mail within 40 days of claimant’s first delivery, service of the notice is effective as of the date of mailing if the person serving the notice maintains a registered or certified mail log that shows the registered or certified mail number issued by the US Postal Service, the name and address of the person served, and the date stamp of the USPS confirming the date of mailing, OR if the person who served the notice maintains electronic tracking records generated through use of the US Postal Service Confirm service or a similar service containing the postal tracking number, the name and address of the person served, and verification of the date of receipt by the US Postal Service. [713.18] NOTE that the notice to owner and the notice to contractor can be combined, and called “notice to owner/notice to contractor.”   [713.06] NOTE ALSO that where a Notice of Commencement is terminated, and subsequently a new Notice of Commencement is recorded, a claimant must send a preliminary notice under the new Notice of Commencement in order to protect his or her lien rights. [Stock Bldg. Supply of Florida, Inc. v. Soares Da Costa Const. Services, LLC, 76 So.3d 313, (Fla.App. 3 Dist.2011)]

RESIDENTIAL CONTRACTS OF 1-4 UNITS:

The notice must be included in the contract between the owner and the general contractor. [713.015]

OWNER-OCCUPIED RESIDENCE:

It must be included in the written contract or agreement for the work. [489.1425]

CONTRACTOR’S BOND:

Notice must be received before commencing or within 45 days thereafter, but if the Notice of Commencement is not recorded with the attached bond before commencement of construction, then within 45 days after the lienor is served with a copy of the bond. NOTE that a notice to owner that is timely served on the contractor satisfies the requirements of this section. The notice can also be combined with the notice to owner and entitled “NOTICE TO OWNER/NOTICE TO CONTRACTOR”. The deadline is calculated as of service of the notice of bond upon the claimant, rather than learning of the bond. Strongly recommend obtaining a copy of the bond, to be sure of the requirements. NOTE that where a Notice of Commencement is terminated, and subsequently a new Notice of Commencement is recorded, a claimant must send a preliminary notice under the new Notice of Commencement in order to protect his or her right to bring a claim against the bond. [713.23; Current Builders of Florida, Inc. v. First Sealord Sur., Inc., 984 So.2d 526 (Fla.App.2008); Stock Bldg. Supply of Florida, Inc. v. Soares Da Costa Const. Services, LLC, 76 So.3d 313 (Fla.App. 3 Dist.2011)]

Before furnishing materials or not more than 45 days after beginning to furnish labor, services, materials, etc. NOTE that if the notice is mailed by certified or registered mail within 40 days of claimant’s first delivery, service of the notice is effective as of the date of mailing if the person serving the notice maintains a registered or certified mail log that shows the registered or certified mail number issued by the US Postal Service, the name and address of the person served, and the date stamp of the USPS confirming the date of mailing.   [255.05; 713.18]

LIEN:

ALL CONTRACTS:

By Subs, Sub-subs and Materialmen:

-Lienor’s name and address

-Description of property sufficient for identification, and

-Nature of services/materials furnished or to be furnished. [713.06(02)]

NOTE that the notice to owner and the notice to contractor can be combined, and called “notice to owner/notice to contractor.”   [713.06]

RESIDENTIAL CONTRACTS OF 1-4 UNITS:

Please contact Levy von Beck and Associates for this information.

OWNER-OCCUPIED RESIDENCE:

Please contact Levy von Beck & Associates for this information.

CONTRACTOR’S BOND:

Notice that the lienor will look to the contractor’s bond for protection on the work. We strongly recommend obtaining a copy of the bond, to be sure of the requirements.   [713.23; Current Builders of Florida, Inc. v. First Sealord Sur., Inc., 984 So.2d 526 (Fla.App.2008)]

Notice that the claimant intends to look to the bond for protection. [255.05]

-Personal service, or

-Actual delivery, or

-Common carrier delivery service or registered, Global Express Guaranteed, or certified mail (with postage or shipping paid by the sender), with evidence of delivery, and the evidence of delivery may be in an electronic format; or

– If none of the above permissible methods are possible, then service may be accomplished by posting on the premises.

– Service by fax is no longer permitted. NOTE THAT service on one owner or one partner of a partnership owing the property is service on all owners and partners. NOTE THAT where the owner, in the Notice of Commencement, designates someone in addition to themselves to receive a copy of the notice, the claimant must give that notice either by personal service, registered or certified mail, or by posting. NOTE THAT a notice to an owner served on a lender must be in writing, must be served by personal service, actual delivery, registered or certified mail, by overnight or second-day delivery with evidence of delivery, and shall be addressed to the persons designated, if any, and to the place and address designated in the notice of commencement. Note also that where a notice to owner or preliminary notice (private or public) is sent by registered, Global Express Guaranteed, or certified mail within 40 days after lienor’s first delivery, the service is effective as of the date of mailing IF a registered or certified mail log is kept showing the registered or certified mail number, the name and address of the person served, and the postal service date stamp, OR if the person who served the notice maintains electronic tracking records generated by the US Postal Service containing the postal tracking number, the name and address of the person served, and verification of the date of receipt by the US Postal Service. If a notice is sent to the last known address in the Notice of Commencement or any amendment thereto, or if there is no NOC then to the last address shown in the building permit application or the last known address of the person to be served, and it is returned as “refused,” “moved, not forwardable” or “unclaimed”, through no fault of the sender, then the service is effective as of the date of mailing. (Note that if the address shown on any of the listed documents is incomplete, the person serving the notice may complete the address using information obtained from the property appraiser or other public record without affecting the validity of service under this section. [713.06, 713.18; Schor and update at §10.03[C]] (cont’d below)]

The Notice required for a residential project of 1-4 units must be included in the contract between the owner and the general contractor if the contract is written. If the contract is oral or implied, the notice must be provided in a document referencing the contract.   The failure to provide the written notice, however, does not bar the enforcement of a lien against a person who has not been adversely affected. [713.015]

The Notice to the homeowner on an owner-occupied residence must be in writing, and must be included in the contract for the repair, construction, etc. [489.1425]

Same as for preliminary notice for private works. [255.05] (See above)

The general contractor. [713.05, 713.06]

NOTE, however, that if affidavit was not given, but the owner does not specifically challenge, in his or her answer, the claimant’s assertion in the foreclosure lawsuit that all requirements were met, then the owner may not subsequently be allowed to challenge it. It would NOT, however, be a good idea to rely on this happening. [Rivera v. Hammer Head Constr. & Development Corp., 14 So.3d 1190 (Fla.App. 5 Dist.2009)]

BOND: Strongly recommend obtaining a copy of the bond, to be sure of the requirements.   [713.23; Current Builders of Florida, Inc. v. First Sealord Sur., Inc., 984 So.2d 526 (Fla.App.2008)]

An interim notice is not required.

Affidavit stating, if true, that all lienors under his direct contract who have timely served a Notice to Owner on the owner and the contractor have been paid in full, or if not, the name of each lienor who hasn’t been paid in full and the amount due or to become due to each for labor, services or materials furnished.  Note, however, that, if sub hasn’t given preliminary notice, this notice will not protect them if their notice time has expired. NOTE that where a supplier has not given a Notice to Owner, and the direct contractor does not include that supplier in his or her affidavit, the contractor’s lien will still be valid, as long as the owner is not prejudiced. For example, if the supplier has filed its own lien, the owner is not prejudiced by the contractor’s failure to list the supplier. [Fetta v. All–Rite Paving Contractors, Inc., 50 So.3d 1216, 36 Fla. L. Weekly D40 (Fla.App. 4 Dist.,2010)] Note also that neither the statute nor the case law suggests that anyone other than the claimant can sign this affidavit. Note further that where a contractor fails to timely furnish a final payment affidavit, the owner is generally entitled to dismissal of the contractor’s suit to foreclose a lien. If, however, the affidavit was not given, but the owner does not specifically challenge, in his or her answer, the claimant’s assertion in the foreclosure lawsuit that all requirements were met, then the owner may not subsequently be allowed to challenge it. Delivery of that notice is a prerequisite to foreclosing on a lien, even if the contract was terminated before completion. [713.06(3)(d); Puya v. Superior Pools, Spas & Waterfalls, Inc., App. 4 Dist., 902 So.2d 973 (2005); Rivera v. Hammer Head Constr. & Development Corp., 14 So.3d 1190 (Fla.App. 5 Dist.2009)]

Not applicable.

When final payment becomes due from the owner to the contractor, and it must be received at least five days before starting a suit against the owner. [713.06(3)]

Not applicable.

All claimants. [713.08, 713.23]

All claimants not in privity with the contractor. [255.05]

LIEN:

-Clerk of county where property is located

-The owner

-Recommend also sending to the contractor. [713.08(5), 713.08(4)(c)]

CONTRACTOR’S BOND:

Contractor and surety. [713.23] Strongly recommend obtaining a copy of the bond, to be sure of the requirements.   [713.23; Current Builders of Florida, Inc. v. First Sealord Sur., Inc., 984 So.2d 526 (Fla.App.2008)]

Contractor and surety. [255.05]

LIEN:

To County Clerk:

During the work or within earliest of 90 days after claimant’s final delivery or work, or 90 days after the original contract is terminated. [713.08]

To owner, contractor, and sub:

Notice must be received before recording or within 15 days after recording.

NOTE that, per case law, a defective lien cannot be amended outside 90-day period for filing lien. [713.08(4); In re CJW Ltd., Inc., Bkrtcy.M.D. Fla. 1994, 172 B.R. 675]

Note that in determining the last day of work, for purposes of calculating the 90-day deadline, the relevant considerations are whether the work was done in good faith, within a reasonable time, pursuant to the terms of the contract, and whether it was necessary to a finished job; however, remedial work such as warranty work, corrective work, repair work, or work that is incidental and not necessary to a completed contract does not extend the time for filing a claim of lien. Note, however, that additional work performed after work was stopped due to owner or purchaser’s failure to make payments, where the work performed was designed to prevent damage to partially-completed home and secure it from the elements, that work benefited the purchaser or owner, and thus, was authorized by the contract, thereby extending the time for claimant to file a construction lien; work was contemplated by the contract and was completed in a good faith effort to mitigate damages. [Sam Rodgers Properties, Inc. v. Chmura, 61 So.3d 432 (Fla.App. 2Dist. 2011)]

CONTRACTOR’S BOND:

Notice must be received within 90 days after claimant’s last delivery or performance – but note that failure to pay retainage of 10% or less does not constitute nonpayment. NOTE that if the payment bond is not recorded prior to the commencement of construction, then the lienor may choose to serve the final notice either within 90 days after claimant’s last delivery or performance, or within 90 days after the lienor is served with a copy of the bond. Note, though that the date for commencing an action on the bond does not change. NOTE that if the bond is not attached to the Notice of Commencement, then the final notice is required to be given within 90 days after the LATER of claimant’s last delivery or performance OR service of the notice of bond upon the claimant. Recommend continuing to give the notice within 90 days after claimant’s last delivery or performance. NOTE ALSO that remedial work in the nature of correction or repair – including punch list work and warranty work – will not extend the time for filing the bond claim. [Delta Fire Sprinklers, Inc. v. OneBeacon Ins. Co., 937 So.2d 695 (Fla.App.5Dist.2006)] Strongly recommend obtaining a copy of the bond, to be sure of the requirements.   [713.23; Current Builders of Florida, Inc. v. First Sealord Sur., Inc., 984 So.2d 526 (Fla.App.2008)]

Notice must be received more than 45 days after first furnishing labor or materials, and not later than 90 days after claimant’s last delivery of materials, etc. NOTE that a payment bond surety cannot rely on pay-when-paid language in the general contractor’s contract as a defense to a sub’s claim; the bond is a separate contract from the contractor’s contract. Conditional payment bonds are not authorized for public works projects in Florida. NOTE that the date of last delivery or final furnishing is NOT determined by the issuance of a certificate of occupancy or a certificate of final completion, and the date of final furnishing does NOT include the correction of deficiencies in the claimant’s previously performed work or materials delivered. [255.05; Everett Painting Co., Inc. v. Padula & Wadsworth Const., Inc., 856 So.2d 1059 (Fla.App. 4 Dist.2003)]

For rental equipment, the notice must be given within 90 days after the date the rental equipment was last on the jobsite available for use. [Schor § 10.02[F]]

LIEN:

Recorded, and served via personal service, actual delivery, registered or certified mail, or overnight or second-day delivery with evidence of delivery, which evidence may be in an electronic format; or if none of the above are possible, by posting on the premises. Service on one owner is service on all owners. If a notice is sent by certified or registered mail, or overnight or second-day delivery, to the last known address in the Notice of Commencement but is returned as “refused,” “moved, not forwardable” or “unclaimed”, through no fault of the sender, then the service is effective as of the date the notice was sent. [713.08(4)(c), 713.18; Schor and update at §10.03[C]]

CONTRACTOR’S BOND:

Personally served or by certified or registered mail. Strongly recommend obtaining a copy of the bond, to be sure of the requirements. It appears that actual receipt is necessary for this claim; attempted delivery may not be adequate. [713.23; Current Builders of Florida, Inc. v. First Sealord Sur., Inc., 984 So.2d 526 (Fla.App.2008)]

Same as for preliminary notice to contractor, but registered or certified mail to the surety will be adequate. [255.05]

LIEN:

-Lienor’s name and address where notices or process may be served on the lienor; (Note that where there is a discrepancy between the name on the contract and the name on the lien, but there is no prejudice or adverse affect from the discrepancy, the line will be allowed to proceed. [Premier Finishes, Inc. v. Maggirias, 130 So.3d 238 (Fla.App.2013)])

-Name of person with whom lienor contracted or was employed;

-Labor, services or materials furnished and contract price or value thereof. If materials were specially fabricated but not used, they must be separately stated;

-Description of real property sufficient for identification;

-Name of owner;

-Time when first and last labor, services or materials furnished;

-Amount of unpaid labor, services or materials and contractual finance charges due for them. NOTE that the total of all liens is limited to the amount of the general contract, unless the owner disburses the final payment prior to receiving the contractor’s Final Payment Affidavit. NOTE ALSO that profit and overhead are not to be included in the lien amount. NOTE ALSO that including in a lien services that do not “improve” the real property — such as pool upkeep, lawn maintenance or homeowner’s association fees – may make the lien fraudulent, even if these items are included in the claimant’s contract. [713.08, 713.31, 713.06; Politano v. GPA Const. Group, 9 So.3d 15 (Fla.App. 3 Dist. 2008); Levin v. Palm Coast Builders and Constr., Inc., 840 So.2d 316 (Fla. Dist. Ct. App. 4th Dist 2003)]

-Date and method of service of preliminary notice on owner, contractor, and sub, where necessary; and

-Must be signed and sworn to or affirmed by claimant or claimant’s agent acquainted with the facts stated in the lien. According to Schor this means that the claimant’s attorney may NOT sign the lien (though the attorney may prepare it), though the statutory language is not clear and courts have not explicitly addressed the issue.

-Mandatory warning, which is contained in attached form.

NOTE that the negligent inclusion or omission of any information in the lien that doesn’t prejudice the owner won’t defeat an otherwise valid lien. [713.08]

NOTE that a lienor is required to record only one claim of lien covering the lienor’s entire demand against the real property, when the claim is for labor or services or material furnished for more than one improvement under the same direct contract. The single claim of lien is sufficient even though the improvement is for one or more improvements located on separate lots, parcels, or tracts of land. If materials to be used on one or more improvements on separate lots, parcels, or tracts of land are sold under one direct contract and are delivered by the lienor to a place designated by the person with whom the lienor contracted, other than the site of the improvement, the delivery to the place designated is prima facie evidence of delivery to the site of the improvement and incorporation in the improvement. The single claim of lien may be limited to a part of multiple lots, parcels, or tracts of land and their improvements or may cover all of the lots, parcels, or tracts of land and improvements. NOTE, HOWEVER, that in each claim of lien under this section, the owner under the direct contract must be the same person for all lots, parcels, or tracts of land against which a single claim of lien is recorded. [713.09; IberiaBank v. Coconut 41, LLC, 984 F.Supp.2d 1283, 1303 (M.D.Fla.2013)]

CONTRACTOR’S BOND:

We strongly recommend obtaining a copy of the bond, to be sure of the requirements.   [713.23; Current Builders of Florida, Inc. v. First Sealord Sur., Inc., 984 So.2d 526 (Fla.App.2008)]

Notice of performance of labor or delivery of materials, and of nonpayment. If the notice of nonpayment is served by a claimant who is not in privity with the contractor, and it includes sums for retainage, then the notice must also specify the portion of the amount that is claimed for retainage. [255.05]

LIEN:

Within one year of record­ing the lien or one year after the recording of an amended lien that shows a later date of final furnishing of labor, services or materials. A lien that continues beyond the 1-year date because of the commencement of an action is only enforceable against creditors or subsequent purchasers for value and without notice if a lis pendens is recorded. NOTE that if the owner or general contractor files suit to seek to have the lien discharged, the claimant must, within 20 days, either file its foreclosure action or show good cause why enforcement should not be commenced. Filing a motion to compel arbitration, even if consistent with the contract, will not satisfy the requirement of filing a foreclosure action or showing good cause why enforcement should not be commenced. Similarly, filing an answer to the discharge action, even if it includes affirmative defenses and counterclaims, does not satisfy the requirement of filing a foreclosure action. NOTE that if the owner provides a bond, and transfers the lien to the bond, then suit against the bond must be commenced within 1 year after the transferred lien is recorded, even if an action on the lien that was transferred had already been commenced. Note that venue for an action against this bond must be in the county where the bond is deposited, regardless of any contractual venue provisions agreed to between the parties. [713.21, 713.245, 713.24; Brookshire v. GP Const. of Palm Beach, Inc., 993 So.2d 179, 46 Fla. L. Weekly D2593 (Fla.App. 4 Dist.,2008); Unnerstall v. Designerick, Inc., 17 So.3d 900 (Fla.App. 2 Dist.2009); W.W. Plastering, Inc. v. Chism Const. Inc., 867 So.2d 600 (App. 1 Dist. 2004); Cool Guys, LLC v. Jomar Properties, LLC, 84 So.3d 1076, (Fla.App. 4 Dist.,2012); Attaway Elec., Inc. v. Kelsey Const., Inc., 120 So.3d 77 (Fla.App. 4 Dist., 2013)] Furthermore, if the owner or its attorney records and serves a Notice of Contest of Lien, then the claimant must file suit within 60 days of service of that notice. NOTE that this notice is served by the county clerk. NOTE ALSO that filing for arbitration, or responding to a claim in arbitration, does not qualify as commencing a lien enforcement action in court. NOTE ALSO that the contractor must have given the owner its Final Payment Affidavit more than five days before filing suit. If the claimant neglects to give the owner the Final Payment Affidavit five days before filing suit, it may be given later, as long as it is given within the 60-day filing deadline. This is allowed, but strongly discouraged. [713­.22, 713.06; Snell v. Mott’s Contracting Services, Inc., 141 So.3d 605 (D.C.App.Fla. 2014); Pierson D. Const., Inc. v. Yudell, App. 4 Dist., 863 So.2d 413 (2003) rehearing denied, review denied]  NOTE FURTHER that where the claimant contracts with the homeowner association on a condominium project for work solely on common areas (such as the roof), it may be acceptable to bring the foreclosure action only against the condominium association, though it would be safest to name and serve the individual unit owners as well. [Trintec Const., Inc. v. Countryside Village Condominium Association, Inc., 992 So.2d 277, 33 Fla. L. Weekly D2093 (Fla.App. 3 Dist. 2008)]

A claim that is in the monetary jurisdiction of the county court may stay there. [713.24]

CONTRACTOR’S BOND:

After both the preliminary and final notices have been given, if required, and within 1 year of claimant’s last performance or delivery. If, however, the contractor provides a payment bond that is NOT attached to the Notice of Commencement, then the time to start suit is within one year of the LATER of claimant’s last performance or delivery, OR the date the notice of the payment bond is served upon the claimant. HOWEVER, if, after a notice of nonpayment (if required) has been served, the contractor or the contractor’s attorney records a Notice of Contest of Claim Against Payment Bond, claimant must file suit within 60 days after the contractor or the contractor’s attorney serves a copy of the notice of contest on the lienor. NOTE that if the owner provides a bond, and transfers the lien to the bond, then suit against the bond must be commenced within 1 year after the transferred lien is recorded, even if an action on the lien that was transferred had already been commenced. [713.23, 713.13, 95.11, 713.21, 713.245, 713.24; Cool Guys, LLC v. Jomar Properties, LLC, 84 So.3d 1076, (Fla.App. 4 Dist.,2012)]

BOND:

Within one year of claimant’s complet­ing the furnishing of labor or materials, and after both the preliminary notice (notice to the contractor) and the final notice (notice of nonpayment) have been served, if required. HOWEVER, if the contractor files a Notice of Contest of Claim Against Payment Bond, then the claimant must file suit within 60 days after the notice has been served on the claimant. [255.05(2)(a)1; 95.11] NOTE that where a contractor is suing its subcontractor (or a sub is suing its sub-sub) on a performance bond, the time (5 years) for bringing such a suit is calculated as of the date that subcontract is completed, not as of the date that the general contract is completed. [BDI Const. Co. v. Hartford Fire Ins. Co., 995 So.2d 576 (Fla.App. 3 Dist.,2008)] NOTE that a case has held that where the surety fails to record the bond in the public records, the bond becomes a common law bond rather than a statutory bond, and the one-year statute of limitations does not apply. [Apac-Florida, Inc. v. OneBeacon Ins. Co., Inc., 888 So.2d 126 (Fla.App. 3 Dist.,2004)]

Note: Suit is only against contractor and surety – not government entity. [255.05]

NOTE that contractors must pay their subs and suppliers within 30 days after their work or materials were furnished performed and payment became due, or within 10 days after the contractor receives payment for that work or those materials, whichever is later. These statutes require a subcontractor to timely pay its subs and suppliers as well, but within the later of 30 days after the due date or 7 days after the sub receives payment. If the contractor or sub fails to do so, then an unpaid sub or supplier can bring a suit against the contractor or sub, and obtain an accounting, an injunction, prejudgment attachment, and other remedies. Note that, for projects involving municipal governments, if the project engineer or other agent must approve the payment request or invoice before it is submitted to the government entity, payment is due 25 business days after the invoice is received. If it is not paid, the contractor may send an overdue notice, and if the payment request or invoice is not paid within 4 business days, then the request or invoice is deemed accepted (less any portion that is fraudulent or misleading). Payments not timely made bear interest at the rate of 1% per month. There are specific statutory requirements for the content of the complaint itself, which are not included here. This is separate from a claim against the bond. In order for this to be appropriate, however, the nonpayment cannot be due to a bona fide dispute over price or a material breach of the contract by the claimant. [255.071, 255.073, 218.735]

RETAINAGE:

All of the following applies to suits that are solely for retainage. Suit must begin within one year of last delivery AND at least one of the following must have also occurred:

(a) The public body has paid claimant’s retainage to the contractor, and the contractor has not paid it to claimant within the required 7-10 days; or

(b) The claimant has completed all its work under the contract and 70 days have passed since the contractor sent its final payment request to the public body; or

(c) At least 160 days have passed since reaching substantial completion of the construction services purchased, as defined in the contract, or if not defined in the contract, since reaching beneficial occupancy or use of the project; or

(d) The claimant has asked the contractor in writing, and the contractor has not responded in writing within 10 days of receipt of the request, for any information pertaining to whether the project has reached substantial completion or beneficial occupancy or use; whether the contractor has received payment of the claimant’s retainage, and if so when; or whether the contractor has sent its final payment request to the public entity, and if so, when.

If none of the conditions (a) – (d) occur, and suit cannot be started within the 1-year limitation, then the time limit will be extended until 120 days after one of the conditions (a) – (d) is satisfied. [255.05]