Who is Entitled to a Construction Lien in Florida?
Contractors, Subcontractors and Sub-subcontractors
A contractor, subcontractor or sub-subcontractor who is licensed, if required to be licensed, is entitled to perfect construction liens under Florida law. This same concept also applies to subcontractors and sub-subcontractors who are perfecting payment bond claims. Most types of construction work in Florida require that the contractor, subcontractor or sub-subcontractor have a specific construction license to perform its scope of work. If a construction license is required for the work being performed, Florida law mandates that contractors, subcontractors and sub-subcontractors maintain proper licensure regulated by the state of Florida to enforce their claims.
- Contractors – Florida law defines a contractor as any person, other than a materialman or laborer, who enters into a contract directly with the owner to improve and improves real property pursuant to a contract, either written, unwritten, express or implied, including extras and change orders. Additionally, a contractor is further defined under Florida law as a person who takes over under an incomplete direct contract with the owner contracting for completion of the entire remaining work under the contract. Lastly, the law provides that a licensed architect, licensed landscape architect or licensed engineer who improves real property pursuant to a design-build contract with the owner is also a contractor.
- Subcontractor and Sub-subcontractors – Florida law defines a subcontractor as a person, other than a materialman or laborer, who enters into a contract with a contractor for the performance of any part of such contractor’s contract including the removal of solid waste from real property and temporary help firms. A sub-subcontractor must be in contract with a subcontractor, but otherwise has the same definition as a subcontractor. Subcontractors and sub-subcontractors are entitled to construction liens. However, it is important to note that more remote subcontractors, such as sub-sub-subcontractors are excluded from the class of persons entitled to a construction lien or payment bond claim under Florida law.
Florida law defines a materialman as “any person who furnishes materials under contract to the owner, contractor, subcontractor, or sub-subcontractor on the site of the improvement or for direct delivery to the site of the improvement or, for specially fabricated materials, off the site of the improvement for the particular improvement, and who performs no labor in the installation thereof.” Materialmen who contract to supply other materialmen or sub-sub-subcontractors are excluded from the class of personas entitled to a construction lien or payment bond claim. A materialman needs to be aware of situations where they may not have lien rights or payment bond claim rights. In other words, if they do not have lien rights or payment bond claim rights, a materialman needs to make sure their customer has good credit!
Professional Lienors – Architects, Landscape Architect, Engineers, Interior Designers, Surveyors and Mappers
Regardless of whether the real property is improved, professional lienors, if they have a direct contract with the owner, are entitled to a construction lien on the owner’s real property. The Florida construction lien law also requires that the professional lienor be properly licensed under Florida law (even if licensed in another state). However, the professional lienor (even if not in direct contract with the owner) may still have lien rights If the property was improved.
Mr. Kalmanson has concentrated his practice in the construction industry for more than 30 years. His emphasis is on the representation of subcontractors and materialmen. He has represented parties in thousands of construction lien, payment bond actions and construction payment disputes. In addition to being a licensed attorney and a State of Florida certified building contractor for more than 30 years, Mr. Kalmanson served as Chairman of the State of Florida Construction Industry Licensing Board pursuant to a gubernatorial appointment and Senate confirmation. He also served as a subject matter expert composing construction lien law test questions for the Department of Business and Professional Regulation’s construction licensure examinations. He is a frequent lecturer on the Construction Lien Law and has published numerous articles and a book on the subject.
This information presents the general scheme of Florida’s Construction Lien Law as of July 2020. 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.