Construction Law

Florida Construction Lien Law Executive Summary

The Construction Lien Law, formerly known as the Mechanic’s Lien Law, has served as a source of confusion to owners, contractors, suppliers and materialman that seek to enforce its provisions. As outlined in Chapter 713, Florida Statutes, the Construction Lien Law established the ground rules for enforcing a construction lien on real property. The lien law authorizes those that furnish labor and material to improve real property as well as those that perform professional services, such as architects, landscape architects, engineers, interior designers, land surveyors and mappers to file a lien as security for payment. By following the Construction Lien Law, owners also benefit by being assured that the total payments made to the general contractor will not exceed the original price.Florida’s Construction Lien Law creates a system of notices which, if used properly, provide a balance of protections for owners, contractors, subcontractors, sub-subcontractors and material suppliers. The statutory scheme is substantially affected by the relationship of contractual privity between various parties in the “chain of contracts.” The Construction Lien Law is strictly construed by the Florida courts, requiring careful compliance with the statutory time periods and other requirements governing service of all required notices of Chapter 713, Florida Statutes. If potential lienors violate a provision of Fla. Stat.§ 713 or miss a deadline, in most circumstances, they will forfeit their lien rights.Generally, an owner’s only responsibilities are to file and post a Notice of Commencement on the jobsite before an improvement is commenced and to make proper payments. The Notice of Commencement contains all the information necessary for potential lienors to file and perfect a construction lien. To make a proper payment, an owner should require that the contractor provide the owner with waivers from each subcontractor working on the job prior to each payment draw. This will ensure that each subcontractor has been paid for their work before the contractor is paid.

To obtain a lien, a lienor not in privity with the owner must file a Notice to Owner upon first furnishing services or materials, or within 45 days thereafter. Both non-privity lienors and lienors in privity must also record a Claim of Lien within 90 days after final furnishing and must serve a copy of the Claim of Lien on the owner 15 days after filing. Finally, the lienor must initiate a proceeding to enforce the lien within one year of filing the claim of lien, or else the lien is extinguished.

An owner may shorten the period for filing an action to enforce the lien in three ways. The owner may file a Notice of Contest of Lien, which shortens the deadline to foreclose to 60 days. The owner may also file a Complaint to show cause. This action requires the lienor to come before the court within 20 days to show proof of the lien, or else the lien is extinguished. Lastly, an owner may also try to extinguish a lien by serving upon the lienor a Demand for Sworn Statement of Account. This demand requires the lienor to respond within 30 days, under oath, with a statement containing the services provided by the lienor and the compensation owed for those services.

The following table is a quick reference chart to the deadlines for both an owner and a potential lienor.

Construction Lien Deadlines

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Q: What Florida statutes generally cover Florida construction lien law and how are they construed?

A: Chapter 713, Part I, Florida Statutes. Because a construction lien is a creature of statute, Florida case law holds that those seeking its benefit must strictly comply with the requirements of construction lien law or else forfeit their rights to claim a lien. However, compliance in most circumstances may often be very difficult since Florida’s construction lien law has long been recognized as one of the most complicated and confusing of all Florida statutes.

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Q: What is a construction lien?

A: A lien is a vehicle for a statutorily specified claimant who has furnished labor, materials or services to a private project to hold security in the improved property and ultimately get paid. Under Chapter 713, Florida Statutes, liens are affidavits prepared under oath by the lienor stating that the lienor has provided labor, material, supplies or services to improve real property and has not been paid the amount stated therein.

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Q: What is lienable?

A: The items that are considered lienable are set forth by lien statutes in Fla. Stat. §713.01. These items include items used for the “improvement” of real property. “Improve” means build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including the furnishing of carpet or rugs or appliances that are permanently affixed to the real property and final construction cleanup to prepare a structure for occupancy; or perform any labor or services or furnish any materials in grading, seeding, sodding, or planting for landscaping purposes, including the furnishing of trees, shrubs, bushes, or plants that are planted on the real property, or in equipping any improvement with fixtures or permanent apparatus or provide any solid-waste collection or disposal on the site of the improvement. “Improvement” means any building, structure, construction, demolition, excavation, solid-waste removal, landscaping, or any part thereof existing, built, erected, placed, made, or done on land or other real property for its permanent benefit. Furnished materials, including materials incorporated into improvements, specially fabricated products, extras or change orders, and contract modifications are also lienable. Punch list and warranty work is not. Lien claimants must improve the real property in such a way as to result in a “permanent benefit” to the land.

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Q: What property can be liened?

A: Liens can only attach to private projects on real property. “Real property” means the land that is improved and the improvements thereon, including fixtures, except any such property owned by the state or any county, municipality, school board, or governmental agency, commission, or political subdivision. Federal, state, county and municipal property is exempt from the operation of the Construction Lien Law.

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Q: What avenue for recovery exists for projects on public property?

A: The exemption of public property arises from the alternative remedy of recovery provided by Fla. Stat. §255.05. This statute, in most instances, requires the general contractor on a public project to provide a payment bond, which serves as a substitute for a construction lien and is the protection upon which claimants may rely for payment.

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Q: What must a material supplier be able to prove in order to claim a lien?

A: Aside from the common elements required of all lien claimants, material suppliers must prove actual incorporation of materials into the real property on which the claim is made. This is often difficult to verify, as suppliers rarely have employees on construction projects verifying actual use of materials provided. As a result, Florida law provides that after evidence is presented which establishes materials were delivered to a job site, it is presumed they were incorporated into the real property. Delivery tickets often suffice to meet this burden of proof. If materials are sold over the counter, specific information should be obtained from the customer confirming which project the materials are intended for. This information will further be helpful in completing a Notice to Owner. There are certain limited exceptions to incorporation requirement that are carved out by statute and case law.

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Q: Does a project actually have to commence and real property have to be improved in order for professional service providers to have lien claims?

A:  Regardless of whether the real property is improved, the professional service providers (architects, engineers, interior designers, land surveyors, landscape architects) if they have a direct contract with the owner and are properly licensed, are entitled to a construction lien on the real property for the amount due to them for their professional services.

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Q:  Can lienors lien for improvements on leased property?

A: Frequently, contractors that perform “tenant improvements” may lien property to the extent of the landlord’s interest. However, the landlord may exempt his property interest from liens if the lease entered into between the landlord and tenant prohibits such liability. In accordance with Fla. Stat. §713.10 the exemption must be evidenced, by recording the lease, or a short form of the lease, in the public records of the county where the property is located. If the landlord avails itself of these provisions, a lienor’s Claim of Lien will only attach to the leasehold interest of the lessee. Accordingly, contractors performing tenant improvements should first ascertain whether such an exemption has been recorded by the landlord.

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Q: What are the critical pre-lien notices required under Florida Construction Lien Law?

A: The Notice of Commencement and Notice to Owner/Contractor

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Q: What are the basics and functionality of the Notice of Commencement?

A: As set forth in Fla. Stat. §713.13, the first notice required by the Florida Lien Law is a Notice of Commencement. This statutory form notice is intended to be an easily accessible public record giving notice of the commencement of the construction project. It also contains a brief description of the project, a legal description of the property, and all of the information needed by other parties involved in the construction project (names and addresses of the owner, the contractor, the lender, a surety if the project is bonded, and any other person who should be served). The owner has primary responsibility for preparation of the Notice of Commencement and recording it in the public records of the county where the real property is located as well as posting a certified copy of the Notice on the site of improvement. If a lender is involved, the lender has a responsibility to the owner to insure that a Notice of Commencement is prepared and recorded prior to commencement of construction.

When an owner fails to file a Notice of Commencement, it creates several different problems for subcontractors and the owner. A subcontractor needs the Notice of Commencement for two reasons. The first is to provide the address of the owner for the subcontractor to send the Notice to Owner. The second reason is that the Notice of Commencement creates the date at which the lien attaches. If the owner fails to record a Notice of Commencement, then the lien attaches at the time the subcontractor files the lien. If there are multiple liens, then the priority is determined at the time the lien is recorded. Any conveyance, encumbrance or demand recorded prior to the time the notice is recorded has priority over any liens filed after recording. In addition to providing important project information, if a properly recorded Notice of Commencement exists for a project, all liens recorded against that project relate back to the date on which the Notice of Commencement was recorded and are, therefore, equal in priority.

If the homeowner fails to record a Notice of Commencement or makes payments after the expiration of the Notice of Commencement, then all payments made to the contractor would be deemed an improper payment and the homeowner could end up paying twice for the same work, once to the contractor and once again to the subcontractors.

Another issue with the Notice of Commencement is that many homeowners are filing the Notice of Commencement prior to their lender recording the mortgage. This results in the construction liens taking priority over the mortgage. The reason that many homeowners file the Notice of Commencement prior to finalizing their mortgage is that contractors mistakenly believe that the Notice of Commencement is required in order to receive a building permit. The reason that contractors think that the Notice of Commencement is required is because many county and city building officials include the Notice of Commencement on their building permit checklist. Past research has yielded that several building officials indicated that the filing of a Notice of Commencement at the same time as the application for a building permit is filed streamlines the process. They indicated that if a building inspector inspects a job site and a Notice of Commencement has not been filed, then the inspection is not approved and construction is delayed. If the Notice of Commencement has been filed with the building official, then the first inspection goes much more smoothly. If the Notice of Commencement is filed before the lender records the mortgage, then the lender or homeowner will have to go through the expense of filing a Notice of Termination, obtaining waivers or release of liens from all subcontractors, and re-filing the Notice of Commencement after the lender has recorded the mortgage. This can lead to extra expenses for the lender and the homeowner.

The Notice of Commencement provides all necessary information for those who furnish labor and materials to send a Notice to Owner. By recording a Notice of Commencement, the owner can require the general contractor to supply releases of lien from all persons that have served a Notice to Owner. Construction must be commenced within ninety (90) days from the date that the Notice of Commencement had been recorded. The Notice of Commencement is effective for one (1) year after it is recorded unless otherwise provided in the Notice. The form for the NOC is provided in Fla. Stat. § 713.13(1)(d).

Previously recorded Notices of Commencement which have not expired or have been terminated may be amended to extend the effective period. A Notice of Commencement may be terminated by executing, swearing to, and recording a notice of termination according to the requirements of Fla. Stat. §713.132. The construction must be completed or ceased before termination and all lienors must be paid in full or pro rata. Notices of termination are not effective unless they have been served on the contractor and each lienor who has served a notice to owner.

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Q: What should I do if I am a lienor and have received a Notice of Termination?

A: If you are a lienor on a project who is still owed money and receive a notice of termination, you should immediately record your claim of lien. Otherwise, the notice of termination becomes effective to terminate the notice of commencement and your lien will not relate back to the date of recordation of the notice of commencement. Even if the lien is recorded within 90 days of the lienors final furnishing of labor, services and materials to the project, it will not have priority over interests acquired in the property prior to the construction lien being recorded after the notice of commencement is terminated.

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Q: Where are Notices of Commencement located?

A: Lienors can obtain copies of recorded notices of commencement from the county public records where the real property is located. Otherwise, the lienor may inquire to the building department for that county, job site bulletin boards or through Notice to Owner services.

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Q: How may lienors obtain information on the project when a Notice of Commencement is not recorded?

A: In the rare instance where an owner or lender has failed to record a notice of commencement, the lienor is entitled to rely on the information contained in the building permit application to serve his or her statutory notice to owner. Ownership and property description are required on building permit applications.

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Q: What are the basics and functionality of a Notice to Owner?

A: Section 713.06 of Florida’s Lien Law provides a statutory form for a Notice to Owner. Any lienor who is not “in privity” with the owner must serve a Notice to Owner in order to have lien rights on a particular project. This document advises the owner as to the identity of all persons that have furnished labor and material to improve his property. The owner can protect himself from paying twice for improvements to his property by requiring a contractor to furnish releases of lien from all persons that served Notices to Owner or alternatively, by requiring the general contractor to submit a partial payment affidavit. A partial payment affidavit will certify to the owner that all potential lienors have been paid to the extent payments have been made by the owner to the contractor.

A Notice to Owner must be served on the owner (or others set forth in Fla. Stat. §713.06 as required) within forty-five (45) days from the date that the lienor first furnished labor and/or materials to the project and prior to the contractor presenting the owner with a contractor’s final payment affidavit and the owner disbursing final payment. Failure to provide a Notice to Owner will preclude that particular lienor from placing a lien on the owner’s property. If a Notice to Owner has not been furnished or if it was filed in excess of forty-five (45) days from the date a lienor first furnished labor and material to the project, then the Claim of Lien may be subject to attack. As a practice tip, the Notice to Owner should be served on anyone in your contract chain you did not contract with.

Under Fla. Stat. §713.06(2)(d), a Notice to Owner may be served on a lender if designated in the Notice of Commencement as a person to receive the Notice to Owner. After receiving a Notice to Owner, the lender is required to make proper payments. If the lender fails to do so, it is liable to the owner for “all damages sustained by the owner as a result of that failure.”

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Q: Who must receive the Notice to Owner?

A: The Notice to Owner must be sent to the owner. If there are two or more owners, a claimant should serve all owners, although Fla. Stat. §713.18 provides that if the real property is owned by more than one person or a partnership, a lienor may serve any notices or other papers under this part on any one of such owners or partners, and such notice is deemed notice to all owners and partners. Additionally, copies of the Notice to Owner should be sent to everyone superior to the claimant up the construction chain, except the party with whom the claimant has a contract. For example: a materialman who has a contract with a subcontractor is required to serve a copy of the notice to owner upon the contractor (but not the subcontractor), and a materialman who has a contract with a sub-subcontractor must serve a copy of the Notice to Owner upon the contractor and should serve a copy of the Notice to Owner on the subcontractor, if the materialman knows the name and address of the subcontractor (but not the sub-subcontractor).

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Q: How are Notices served?

A: The Florida Construction Lien Law is specific as to the methods allowed for service. Although, the personal delivery with a signed receipt or proof of delivery is allowed, the most common method of service remains service by certified mail, return receipt requested. During the past decade, the law has been amended to allow service by facsimile in those instances where the party to be served has included a fax number in the Notice of Commencement. Actual delivery, such as hand-delivery or overnight delivery is also permitted, but unlike certified mail which can be accepted by any person at the appropriate address, actual delivery must be made directly to the person to be served. Fla. Stat. §713.18 also provides that notices that are sent by certified mail are considered received if returned for any reason that is not the fault of the sender. In other words, if the sender mails the notice to the correct name and address listed in the Notice of Commencement (or building permit application) and attaches the proper postage, but the notice is returned “unclaimed,” “refused,” “moved, unforwardable” “addressee unknown,” “no such address,” or for any other reason not caused by the sender’s own error, it is considered served on the date of the postmark. Posting a notice on the construction site is also allowed, but this is a last resort if no other means of service is possible. If the last day for service is a Saturday, Sunday or a legal holiday, the time period is extended to the next business day.

It is also important to know that with respect to service of Notices under Florida Construction Lien law, the terms “service” or “served” is interpreted to mean the Notice is received within the time frame mandated and not mailed before the expiration of the time deadline. Because there is an exception for valid service of NTO’s upon mailing if mailed within 40 days of furnishing, it is advisable to always mail on or before day 40 and comply with Fla. Stat. §713.18 requirements. Prudent subs actually serve NTO’s on or before the first date work commences.

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Q: When is a Notice to Owner not required?

A: (1) When you are in direct contractual privity with the Owner; (2) On government jobs; (3) When there is common identity between the Owner and your customer, the general contractor; (4) When you are doing underground work for a subdivision, or are a supplier or subcontractor to such a contractor; and (5) When your customer is the Owner’s agent (Ex., a construction manager).

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Q:  What are the obligations and liabilities of lenders receiving Notices to Owner?

A: Lenders have a duty to exercise reasonable care to see that payments to contractors are made in compliance with the construction lien law when the lender is given sole authority on behalf of the owner to make such payments. Thus, a lender who is served with a notice to owner is required to make proper payments when it disburses construction funds for an owner (when lender pays contractors or other lienors directly) to the extent that the lender has received copies of Notices to Owner. In the event the lender does not make proper payments, it may be liable to the owner. It should be noted that the lien statutes do not prohibit a lender from disbursing construction funds at any time to the owner, in which event the lender has no obligation to make proper payments.

Fla. Stat. §713.3471 expanded the liability of lenders to protect contractors in very limited circumstances, such as when a lender on a construction project terminates draws on a construction loan, the lender must serve a written notice to the contractor and anyone who has provided the lender with a Notice to Owner within five (5) business days indicating that no future draws will be funded. If the lender fails to timely give the required notice of draw termination, the lender shall be responsible for all labor and materials plus 15% overhead and profit after the date the notice should have been given to the extent of the undisbursed funds remaining in the loan. However, if the lender intended to defraud the suppliers of labor or materials, the recovery is not limited by the amount of undisbursed funds.

Further, prior to a lender disbursing funds to an owner which were previously allocated to actual construction costs for any other purpose such as marketing, a written notice of the reallocation of funds must be given to the contractor and anyone who has served a Notice to Owner. If the lender fails to timely give the required notice of fund reallocation, the lender shall be responsible for all labor and materials plus 15% overhead and profit or the value of the disbursements, whichever is less. However, the reallocation of funds provision does not apply to residential projects of four units or less and does not apply to loans of less than $1 million.

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Q: Describe the who, what, when, where and how of recording and serving the lien.

A: Who (who is entitled to lien rights?)- A lienor who either has contractual privity with the owner or who has preserved its lien rights by properly serving a Notice to Owner can record a Claim of Lien.  Under Fla. Stat. §713.01, Florida law provides lien rights for architects, landscape architects, interior designers, engineers, mappers, land surveyors, laborers, contractors, subcontractors, sub-subcontractors, and material suppliers who are furnishing materials directly to an owner or to one of these other lienors. The following have no lien rights under Florida construction law:

• Florida law does not allow a sub-sub-subcontractor or material supplier to a material supplier to have lien rights. If you are supplying materials to another material supplier, you may want to consider procuring an assignment of the primary supplier’s lien rights.
• Unlicensed contractors. Fla. Stat. §713.02
• Corporations not licensed to perform architectural or engineering services are not entitled to lien for architectural or engineering services provided by it.
• A materialman’s fabricator. Fla. Stat. §713.02
• A sale of goods not designed for any site but simply for the customer’s shelf. Fla. Stat. §713.01(19).
• Persons working on governmental property. Fla. Stat. §713.01 (26)
• Persons working on jobs that are properly bonded under Fla. Stat. §713.23.
• Persons not in privity with the Owner when the Owner’s contract for improvements is less than $2,500. Fla. Stat. §713.02 (5).

What (what information must be included in the lien?)- To perfect a lien on an owner’s property, every lienor must record a Claim of Lien in the form outlined in Fla. Stat. §713.08(3), including the warning language outlined therein. A Claim of Lien must be signed and sworn to or affirmed by the lienor or his or her agent acquainted with the facts. A valid Claim of Lien must include the name and address of the lienor, name of contracting parties, the labor, services or materials furnished to the property, the contract price, a description of the property, name of the Owner, date the lienor commenced improvements, date the lienor last furnished labor, materials or services, amount remaining unpaid and date and method of service of NTO if applicable.  The law provides penalties for filing a false, fraudulent or exaggerated Claim of Lien. The amount of the lien should only be the money owed on the contract, together with extras and contractual finance charges. Courts award attorneys’ fees and costs to prevailing parties. Damages for lost profit and delay cannot be included in the lien amount.

Construction liens must be made under oath. Therefore, it is important to verify the accuracy of the information and financials in the Claim of Lien. It is critical for lienors to keep accurate dates and proper records on all projects. Willfully filing a false construction lien amounts to perjury and is punishable as a criminal offense. However, the omission of any details or minor errors in a lien does not prevent its enforcement against a party that has not been adversely affected.

When (when must lien be recorded?)- The Claim of Lien may be recorded at any time during the progress of the work, but must be recorded no later than ninety (90) days from the date the lienor last furnished labor, services or materials to the project. It is significant to note that returning to a project to perform inconsequential work, such as minor punchlist type repairs or warranty work, may not extend the ninety (90) days from the last date that meaningful work was performed. As a matter of prudence, I always advise my clients to file their liens on the 60^th day if unpaid as a matter of company policy. Claims of Lien may be amended at any time during the period for recording the lien if there is no detriment to the party relying upon the lien in good faith. Even if the time for amending an initial claim of lien has expired, a lien containing a minor error or omission still may be enforceable so long as the owner or other person challenging the lien is unable to persuade the court that they have suffered damages or have been prejudiced by the error or omission. If a claimant fails to timely record his or her construction lien and loses lien rights, then the lienor may still be able to recover by suing for an equitable lien or by suing on the contract.

Where (where do you record the lien?)- A Claim of Lien must be recorded in the public records of the county where the property is located.

How (how do you record and serve the lien?)- After recording the Claim of Lien in the public records through the Clerk of the Court, the Claim of Lien must also be served on the owner or other persons listed in the Notice of Commencement within 15 days of its recording. Serve in the methods set forth above (preferably certified mail, return receipt requested). Failure to serve the Claim of Lien on the owner makes the lien voidable “to the extent that the delay is shown to have been prejudicial to any person entitled to rely on the service.” Though the statute only requires service on the owner, it is advisable to serve it on everyone in your contract chain.

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Q: Can subcontractors or suppliers who contract with unlicensed contractors maintain lien and bond claims?

A: Yes.

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Q:  Can you lien for rented and leased equipment?

A: Equipment owners have lien rights in Florida just like any other type of supplier. In order to avoid disputes over the time period for recording a Claim of Lien for rental equipment, Florida law specifically states that the Claim of Lien may be recorded “within 90 days after the date that the rental equipment was last on the job site available for use.”

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Q: What are the significant deadlines after the Lien is recorded to be aware of?

A: A copy of the Claim of Lien must be served on the owner within fifteen (15) days from the date it is recorded. Thereafter, a lienor must file a lawsuit to foreclose the Claim of Lien within one (1) year from the date it is recorded unless a “Notice of Contest of Lien” is served on the lienor by the owner. A “Notice of Contest” shortens the statute of limitations to sixty (60) days after it is recorded. If a lienor fails to file a lawsuit within one (1) year of filing a Claim of Lien or sixty (60) days from recording a Notice of Contest, the Claim of Lien is subject to dismissal. This is a favorite tactic for Owners looking to dismiss liens filed by uninformed lienors.

Owners may also shorten the 1 year time period by filing a Complaint for an order to show cause in which the clerk of court issues a summons to the lienor to show cause within 20 days why the lien should not be enforced by action or vacated. The lienor seeking to satisfy the order to show cause typically files a lien foreclosure Complaint.

If a lienor is in privity with the Owner, it must deliver a Contractors Final Payment affidavit to the Owner at least 5 days before commencing legal action to foreclose the lien.

Lastly, a lienor can lose its lien rights if, upon written request, it fails to furnish a Sworn Statement of Account requested by the Owner, setting forth the labor and materials furnished and the amounts due and owing, within 30 days.

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Q: What is a Contractors Final Payment Affidavit?

A: A Contractors Final Payment Affidavit is a document furnished by the contractor that must state that all lienors under direct contract with the general contractor who have timely served a Notice to Owner on the owner and the contractor have been paid in full or, if otherwise, must show the name of each lienor who has not been paid in full and the amount to or to become due each for labor, services, or materials furnished. Contractors must provide a final payment affidavit at least 5 days before filing suit or he or she is precluded from foreclosing on real property.

In certain instances, and in reliance on the Contractor’s Final Payment Affidavit, an owner of the real property improved may disburse monies owed to subcontractors and/or materialmen disclosed in the Contractor’s Final Payment Affidavit. An owner may do so only after giving the contractor at least ten (10) days written notice of his or her intention to do so and the amount he or she proposes to pay each of the subcontractors and/or materialmen.

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Q: How are liens waived, released and satisfied?

A: The terms waiver and release, when used in connection with construction claims, have been used interchangeably. Technically speaking, a waiver is the giving away of a future right. A release is the giving away of an accrued right. A satisfaction of lien is the term that is generally used to denominate the giving away of an asserted claim after a claim has been recorded.

During the past decade, statutory forms have been added to the laws governing private and public construction projects. Although the law permits a lienor to utilize a different form of their own choosing, it prohibits anyone from forcing a lienor to use a different form. These provisions were enacted in order to protect lienors from waiving rights other than lien and bond rights and to help curtail the widespread use of complex forms that require review by attorneys on a case-by-case basis. The statutes provide separate waiver forms to be used for progress payments and for final payments, for bonded projects and for non-bonded projects. Releases will release lien rights up to a specific sum or all claims for work done through a certain time.

Fla. Stat. §713.20 provides for the waiver or release of a lien by any lienor giving a Notice to Owner and may be requested by the owner prior to making a payment to the contractor. The provision does not allow the lienor to waive the right to payment in advance of doing the work, but nothing prohibits the waiver prior to receiving payment. These waivers must be obtained by the owner prior to each payment to the contractor if the owner has received a Notice to Owner from a subcontractor. If the owner does not request a Waiver or Release of Lien prior to each payment, the payments become improper. If the owner’s payments become improper, he or she may become liable to any lienor who has properly served notice and recorded a lien and therefore may end up paying twice for services or materials. Requiring and obtaining a Release of Lien at each payment for every Notice to Owner filed by a subcontractor “closes the loop” and releases the owner from liability for those payments.

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Q:  Should I sign a lien release that differs from the statutory forms?

A: Many general contractors and some owners insist that their form be used, despite the language in §713.20 which says that a person may not require any form different from the statutory form. Sneaky contractors often request endorsement of non-statutory forms because they contain unfavorable language not contained in the statutory forms which purport to waive claims other than lien rights, including claims for additional compensation, delay damages and the like. Signing any lien waiver form with extraneous language purporting to waive claims other than lien rights is not encouraged, as it may act as a bar to any future claim for a change order, delay damages or additional compensation based on events happening before the effective date of the lien waiver form. Once endorsed, lien waivers are binding. If a lienor refuses to sign a non-statutory form, the Owner in all likelihood, is prohibited from using proper payment as a defense.

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Q: Should I sign a lien waiver that contains a different dollar amount than that actually received?

A: The effective date, NOT the amount, is the critical information on the lien release. A release of lien is not required to recite the amount of money exchanged for the release. Many clients inquire as to the correct dollar amount to insert in the “in consideration of the sum of $________” line on the lien waiver form. The recitation of consideration ($10) does not have the purpose of releasing $10 worth of lien rights, but is only to show that the release is supported by some consideration. Unless the release is drafted to release a specific dollar amount, courts do not care about the amount so long as the release is absolute on its face and releases for work completed through an effective date. Therefore, the critical information in the lien release is the effective date of the release, because that is the date through which lien rights are effectively waived. For materials and labor furnished after the effective date, lien rights remain intact, regardless of amount. Therefore, lienors must determine whether their release is drafted to release rights for a sum certain, or through an effective date, or else they may end up releasing more than is intended. If the sum released is not as large as all sums due through the date released, then the lienor may be giving away more than it should have. Ideally, the date and the amount released are in sync.

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Q: What can I do to protect myself from permanently releasing a lien in return for a worthless check?

A: Surprisingly, this issue comes up a lot. Florida courts have held that a returned check for insufficient funds is valid consideration to support a release of lien, despite the money not actually being transferred. A way to protect against this is for the lienor to write on the face of or include in the release or waiver of lien form “this release is conditioned upon payment and clearance of check or draft No. ______ issued on the account of ___ at _____ in the amount of $_____; this Release of Lien is conditioned upon payment of the consideration described above.  It is not effective until said payment is received by lienor in paid funds, otherwise this Release is void” or words of similar effect.

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Q:  What do I do if the contractor is requesting a release and I haven’t been paid yet?

A: The timing of releases is a significant topic of concern. Florida’s construction lien law tends to presume a fiction. The law presumes that a contractor has the funds to pay subcontractors and material suppliers before the contractor is paid by the owner. In practice, this is not always the case. Often, the contractor gathers releases from subcontractors and suppliers in anticipation of payment. If the contractor gives the releases he or she collected to the owner to receive payment and then does not pay the subcontractors, the releases will be valid (so long as the owner does not have knowledge of the nonpayment to the subcontractors).

It is important to inspect the contract or subcontract to be sure that there is no obligation to furnish a release of lien prior to payment. The wording of such a contract should be changed to require release in exchange for payment. The best practice is to give the release only in exchange for, or after, payment. If this does not work for the parties, a conditional release or escrow agreement should be negotiated by the parties.

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Q: Do the timelines and enforcement requirements differ for bonded projects?

A: If an owner wants to limit his or her exposure to liens on a private construction project, the owner can request that the contractor obtain a payment bond. The Florida Lien Law contains specific requirements for bonded projects. These requirements are similar, but not identical, to the requirements and time periods for non-bonded projects.

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Q: What is a fraudulent lien and what are the penalties for filing one?

A:  A fraudulent lien is a complete defense to a lien foreclosure action. A fraudulent lien arises when a lienor has: (1) willfully exaggerated the amount for which the lien is claimed; (2) included a claim for work not performed or materials not furnished; or (3) asserted a lien for work admittedly not performed, non-lienable items, or compiled a claim of lien with such willful and gross negligence as to amount to a willful exaggeration. Fla. Stat. §713.31.

Fraudulent liens typically involve situations where the completion of the work is disputed. A fraudulent lien can also arise where the lien amount is based upon a disputed method of compensation, or where the lien includes amounts not authorized by contract or change orders. A minor mistake in a lien or a good faith dispute as to the amount due is not considered a willful exaggeration and will not give rise to a fraudulent lien.

A fraudulent lien can also give rise to an affirmative claim for damages against the lienor. A lienor who files a fraudulent lien may be liable for actual damages, including attorney’s fees, the amount of any bond premium required to discharge the lien, court costs, and punitive damages not exceeding the difference between the amount claimed by lienor and the amount actually due. Further, in extreme cases, a fraudulent lienor may be subject to criminal and administrative penalties.

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Q: How are unlicensed contractors treated under Florida Lien law?

A: The Construction Lien Law only permits a licensed contractor, subcontractor or sub-subcontractor to lien property. Upon receipt of a Claim of Lien, the owner should ascertain whether the lienor was properly licensed to perform work. Confirmation can be acquired by contacting the appropriate licensing authority, such as the Florida Construction Industry Licensing Board. If not licensed, the lien can be declared invalid and unenforceable.

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Q: What disciplinary actions and criminal penalties can be imposed for abuse of Florida’s Construction lien laws?

A: Fla. Stat. §713.345 provides that a permissive inference that a person knowingly and intentionally misapplied construction funds when: a) valid lien has been recorded against the property of an owner; b) over 45 days have passed since the person who ordered the labor, services or materials received sufficient funds to pay for such labor, services or materials; and c) the person has failed to remit sufficient funds to pay for the labor, services or materials. Based on the amount misapplied, the accused may be charged with a felony of the first, second or third degree.

Further, Fla. Stat. §713.35 provides that anyone who knowingly and intentionally furnishes an affidavit, a waiver or release of lien or other document containing false information about the payment status of subcontractors, sub-subcontractors or suppliers on which others rely is guilty of a felony in the third degree.

Any licensed contractor may be subject to disciplinary action by the Florida Construction Industry Licensing Board for attempting to discourage service of Notice to Owner or Bond Notices. A contractor may also be disciplined if it is proven that a valid lien has been recorded against the property of a contractor’s customer for supplies or services ordered by the contractor for the customers job; the contractor has received funds from the customer to pay for the supplies or services; and the contractor has not had the liens removed from the property by payment or by bond within 75 days.

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Q:  How are liens treated if the Owner files Bankruptcy?

A.  Perfecting lien rights can make the difference between being an unsecured creditor, which typically means no compensation or a de minimus pro rata payment on the outstanding obligation and being a secured creditor, which typically means an opportunity to be paid in full. If there is a properly recorded Notice of Commencement for a construction project, a Claim of Lien is effective on the date the Notice of Commencement was recorded. Consequently, an automatic stay in a bankruptcy proceeding does not preclude the filing of a Claim of Lien so long as a Notice of Commencement has been recorded. This gives the lienor a secured claim in the bankruptcy proceeding as opposed to unsecured creditor status. A lienor may also make a demand to reclaim any unused materials that were furnished to the project within 10 days of the bankruptcy filing, but the demand must be made within 10 days of the bankruptcy filing. If no Notice of Commencement has been filed or it has expired, recording a Claim of Lien after a petition for bankruptcy would violate the automatic stay. In this situation, relief would need to be obtained from the bankruptcy court to allow for perfecting of the Claim of Lien.

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Conclusion
The Construction Lien Law is confusing and requires careful consideration when pursuing enforcement of a lien and paying those that furnish labor and materials to improve real property. As required by Chapter 713, Florida Statutes, timetables established for recording the Notice of Commencement, serving Notices to Owner, and recording and foreclosing on a Claim of Lien must be followed or a lien may be declared invalid. Construction Lien Law is a much nuanced piece of jurisprudence with draconian means of punishment for non-compliance. Accordingly, you should consult with a Jimerson & Wilson attorney specializing in construction law when confronted with challenging issues relating to the enforcement or preservation of your lien rights.

Information and Source reference for this webpage is courtesy of Leiby, Florida Construction Law Manual, 2009-2010 ed. (Vol. 8, Florida Practice Series) West Publishing.