To be enforceable, a construction lien must be timely recorded in the clerk’s office of the county in which the real property is located. Generally, a construction lien is considered timely if it is recorded during the progress of the work or thereafter, but not later than ninety (90) days after the final furnishing of the labor, services or materials by the lienor, or, with respect to rental equipment, within ninety (90) days after the date that the rental equipment was last on the job site available for use or two (2) business days after the rental equipment company receives a written notice to pick up the equipment, whichever occurs first.
The time period for recording a construction lien is not measured by the issuance of a certificate of occupancy or issuance of a certificate of substantial completion. If punch-out and/or warranty work was performed, that work does not extend the time for recording the construction lien because the contract was already complete, and the additional work performed was incidental to the contract. If it is unclear whether the last work was actual work under the lienor’s contract or was punch-out and/or warranty work, the courts will make that determination for the lienor if a lawsuit is brought.
The test to determine final furnishing as elaborated by the court in Zupnik Haverland, L.L.C. v. Current Builders of Florida, Inc., 7 So. 3d 1132 (Fla. 4th DCA 2009) is whether the work was done:
(1) in good faith,
(2) within a reasonable time,
(3) in pursuance of the terms of the contract, and
(4) was necessary for a “finished job”.
It is recommended that a lienor record a construction lien within forty-five (45) days after the final finishing of labor, services or materials to the improvement, so that if an error or omission becomes apparent, the construction lien can be amended.
Additionally, Florida law provides if the 90th day for recording of the construction lien is a Saturday, Sunday or legal holiday, the time period for recording the construction lien is extended until the end of the next business day. In addition, during the Covid-19 epidemic, many of the clerks’ offices were closed for in-person recording of documents. In response, the Improved Construction Practices Committee https://icpc-florida.com advocated for the rights of lienors and had the Florida Legislature enact Section 713.011, Florida Statutes, which provides …
If the clerk’s office is closed in response to an emergency for 1 or more days so that a person may not present a document for recording … in person to the clerk’s staff, the time period for recording a document … with the clerk’s office under this part is tolled. When the clerk’s office reopens, the time period is extended by the number of days the clerk’s office was closed.
Now, if the county recording department is closed due to a hurricane or other emergency, the time period for recording the construction lien is extended by the number of days the clerk’s office was closed (which may be far in excess of ninety (90) days).
Since the ninety (90) day time limit is strictly construed, it is imperative that a lienor timely record its construction lien.
This information presents the general scheme of Florida’s Construction Lien Law as of August 2024. 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.
