Florida law provides that certain lienors (subcontractors, sub-subcontractors and materialmen to contractors, subcontractors or sub-subcontractors) are required to serve notice to owner, failure to do so in a timely fashion is a complete defense to the enforcement of a construction lien. The statute specifically provides that “failure to serve the notice, or to timely serve it, is a complete defense to enforcement of a lien by any person.”
Copies of the notice to owner (subject to one exception) must be sent to everyone superior to the claimant up the construction chain, except the party with whom the claimant has a contract. By way of example, using the illustration above, the materialman who has a contract with the sub-subcontractor would need to send a copy of the notice to owner to the subcontractor, contractor and the owner. Note that there is an exception for materialman supplying materials to a sub-subcontractor in that they are only required to serve a copy of the notice on the subcontractor if they have actual knowledge of the name and address of the subcontractor.
Sub-subcontractors or materialmen to subcontractors or sub-contractors often do not have knowledge of the identity of the general contractor or subcontractor on a specific construction improvement. Although this scenario may appear to be unlikely, it is a problem that I see rather frequently. This problem can usually be avoided by examining the notice of commencement as well as asking questions at the site of the improvement.
Florida law requires the owner to record a notice of commencement and to post a copy of it on the site of the improvement prior to improving the real property. However, when the improvements are being financed by a construction loan, the lender is responsible for recording the notice of commencement in the public records, but the lender is not responsible for posting the notice of commencement at the construction site. The posting of the notice of commencement at the construction site remains the owner’s obligation. To avoid missing anyone requiring service, it is recommended that copies of the notice to owner by mailed to all persons or companies listed on the notice of commencement, including but not limited to the owner, the general contractor, any bank, lender, surety company or any other third party listed on the notice of commencement, as well as all subcontractors superior to the claimant up the construction chain.
This information presents the general scheme of Florida’s Construction Lien Law as of November 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.
