Florida law provides if a notice to owner on an improvement without a payment bond or a preliminary notice on an improvement with a payment bond is mailed by registered, global express guaranteed, or certified mail with postage prepaid within forty (40) days after the date the lienor first furnishes labor, services or materials, the notice is effective as of the date of mailing if a registered or certified mail log is maintained which shows:
- The date the notice was served;
- The registered or certified mail number issued by the United States Postal Service;
- The name and address of the person served and the date stamp of the United States Postal Service confirming the date of mailing or electronic tracking records generated by the United States Postal Service containing the postal tracking number;
- The name and address of the person served; and
- Verification of the date of receipt by the United States Postal Service.
The rules are different if the notice is not served within forty (40) days. However, even if the lienor maintains a mail log but fails to mail the notice to all those required to be served within forty (40) days, or if the lienor fails to maintain a mail log, then, the lienor does not receive the benefit of this provision. In such an instance, all those required to be served with the notice must receive the notice within forty-five (45) days unless the notice is returned from the postal service. As a result, it is imperative that persons using this method serve their notice on all those required to be served early in order to avoid losing the benefit of this provision.
It is recommended that subcontractors and materialmen serve notices on or before the date of the delivery or on or before the date work commences. Procrastination in serving the notice may result in forfeiture of the right to a construction lien or payment bond claim. A claimant may still be able to recover by suing its customer on its contract. However, the contract remedy is sometimes illusory because the customer may be insolvent or bankrupt. The only real security for payment is to perfect a valid construction lien on the improvement or payment bond claim under the Florida Construction Lien Law.
This information presents the general scheme of Florida’s Construction Lien Law as of March 2022. The Construction Lien Law is constantly being amended; therefore, this material should not be relied upon in place of experienced legal advice in specific situations. This material is copyrighted and cannot be reproduced without written permission from Barry Kalmanson, Esq.
