Required Procedures for Protecting Construction Lien Rights on Private Projects in Florida

Prepared by:

Stovash, Case & Tingley, P.A.
SunTrust Center
200 South Orange Avenue
Suite 1220
Orlando, FL 32801-3410
Phone: 407-316-0393
Fax: 407-316-8969

Perfecting a contractor's lien rights on a private project is critical to ensuring that contractor's right to payment on a construction project. Given the complexity of Florida's Lien Laws, the following summary may be helpful in planning the necessary steps to perfect your lien rights as a contractor performing services or providing materials to private construction projects.

I. Perfecting Liens of General Contractors on Private Projects: A General Contractor has contracted directly with the owner of the property.

1. Verify the ownership of the property by reviewing the Notice of Commencement which should be posted at the jobsite and recorded in the public records of the county of the project. If there is uncertainty as to ownership, or conflicting information, send all notices to all addresses you have obtained.
2. Prepare and execute a Claim of Lien and record the Claim of Lien in the public records of the county of the project within ninety (90) days of the final date you furnished labor or materials to the project.
3. Serve a copy of the Claim of Lien on the owner and all parties listed on the Notice of Commencement within fifteen (15) days of the date of recording the Claim of Lien in the public records. Send the Claim of Lien by certified mail and keep the executed green receipt to establish service.
4. Prepare a Contractor's Final Payment Affidavit stating that all lienors that have a direct contract with you to provide materials or perform services on the project and have timely served a Notice to Owner have been paid in full or, if any such lienors have not been paid, the names and amounts due to those unpaid lienors. The Contractor's Final Payment Affidavit must be served upon the property owner no less than five (5) days prior to initiating a lawsuit to foreclose the lien. Send the Final Payment Affidavit by certified mail and keep the executed green receipt to establish service.
5. File your lien foreclosure lawsuit within one (1) year of the date of recording the Claim of Lien in the public records. If the property owner has recorded a Notice of Contest of Lien in connection with your Claim of Lien, you must file your lien foreclosure lawsuit within sixty (60) days of the date the Clerk mails the Notice of Contest of Lien to you.

II. Perfecting Liens of Subcontractors on Private Projects: A Subcontractor has contracted directly with the General Contractor on the project.

1. Verify the ownership of the property and any lenders for the owner by reviewing the Notice of Commencement which should be posted at the jobsite and recorded in the public records of the county of the project. If there is uncertainty as to ownership, or conflicting information, send all notices to all addresses you have obtained.
2. Prepare a Notice to Owner and serve on the property owner and any lenders listed on the Notice of Commencement by certified mail, return receipt requested, within either (1) within forty-five (45) days of the first date you furnished materials or performed work on the project, or (2) before final payment is made by the owner in reliance on the Contractor's Final Payment Affidavit, whichever period is shorter. Service of the Notice to Owner means delivery, so postmarking the Notice to Owner on the 45th day is not sufficient. Send the Notice to Owner by certified mail and keep the executed green receipt to establish service.
3. Prepare and execute a Claim of Lien and record the Claim of Lien in the public records of the county of the project within ninety (90) days of the final date you furnished labor or materials to the project.
4. Serve a copy of the Claim of Lien on the owner and all parties listed on the Notice of Commencement within fifteen (15) days of the date of recording the Claim of Lien in the public records. Send the Claim of Lien by certified mail and keep the executed green receipt to establish service. There is no need to file a Contractor's Final Payment Affidavit.
5. File lien foreclosure lawsuit within one (1) year of the date of recording the Claim of Lien in the public records. If the property owner has recorded a Notice of Contest of Lien in connection with your Claim of Lien, you must file your lien foreclosure lawsuit within sixty (60) days of the date the Clerk mails the Notice of Contest of Lien to you.

III. Perfecting Liens of Sub-Subcontractors on Private Projects: A Sub-subcontractor has contracted directly with a Subcontractor of the General Contractor on the project.

1. Verify the ownership of the property, any lenders for the owner, and the general contractor by reviewing the Notice of Commencement which should be posted at the jobsite and recorded in the public records of the county of the project. If there is uncertainty as to ownership, or conflicting information, send all notices to all addresses you have obtained.
2. Prepare a Notice to Owner and serve on the property owner, any lenders, and the general contractor listed on the Notice of Commencement by certified mail, return receipt requested, within either (1) within forty-five (45) days of the first date you furnished materials or performed work on the project, or (2) before final payment is made by the owner in reliance on the Contractor's Final Payment Affidavit, whichever period is shorter. Service of the Notice to Owner means delivery, so postmarking the Notice to Owner on the 45th day is not sufficient. Send the Notice to Owner by certified mail and keep the executed green receipt to establish service.
3. Prepare and execute a Claim of Lien and record the Claim of Lien in the public recordsof the county of the project within ninety (90) days of the final date you furnished labor or materials to the project.
4. Serve a copy of the Claim of Lien on the owner and all parties listed on the Notice of Commencement within fifteen (15) days of the date of recording the Claim of Lien in the public records. Send the Claim of Lien by certified mail and keep the executed green receipt to establish service. There is no need to file a Contractor's Final Payment Affidavit.
5. File lien foreclosure lawsuit within one (1) year of the date of recording the Claim of Lien in the public records. If the property owner has recorded a Notice of Contest of Lien in connection with your Claim of Lien, you must file your lien foreclosure lawsuit within sixty (60) days of the date the Clerk mails the Notice of Contest of Lien to you.

IV. Perfecting Liens of Material Suppliers to Private Projects: A material supplier has contracted with any or all of the following: the property owner, the General Contractor, a Subcontractor, or a Sub-Subcontractor. The procedure for perfecting your lien is determined by which entity contracted with you to provide materials to the project.

1. If your contract is with the property owner, follow the requirements for a General Contractor outlined in section I, above, except that a Contractor's Final Payment Affidavit is not necessary.
2. If your contract is with the General Contractor, follow the requirements for a Subcontractor outlined in section II, above.
3. If your contract is with a Subcontractor, follow the requirements for a Sub-subcontractor outlined in section III, above.
4. If your contract is with a Sub-subcontractor, review section V, below, for your remedies.

V. Rights of Other Contractors: Generally, contractors in privity with Sub-subcontractors do not have any lien rights on a private project. Those third-tier contractors may only pursue their contractual remedies against the Sub-Subcontractors with which they contracted.