A Florida mechanic’s lien is a right created by statute providing any person who performs services or provides materials to a property for construction, to have a lien on that property for any money that is owed to that person for his or her services or materials furnished. In other words, those who work or provide materials a property, and are not paid-in-full, have a right to file a lien against the property. A mechanic’s lien can be filed against a property if a contractor fails to pay subcontractors or material suppliers, even if the contractor has been paid in full by the owner. If a lien is filed against a property, the property could be sold against the owner’s will to pay for labor, materials or other services which the contractor may have failed to pay.
Florida’s Construction Lien Law has two purposes. The first is to protect an owner from being required to pay more for his or her improvements than is required by the contract, provided that the owner complies with the requirements set forth in the law. The second is to protect those who have provided labor and materials for the improvement of real property.
In order to be protected under Florida’s Construction Lien Law, it is important to strictly comply with the statutory requirements. For example, if a court finds that a contractor/supplier did not comply with Florida’s statutory requirements, the mechanic’s lien will be stricken. If a contractor/supplier is unsure of Florida’s statutory requirements with respect to their Florida’s mechanic lien, he/she should speak to an attorney to ensure that their interests are protected. Further, even if a court finds that a mechanic’s lien is unenforceable, there are still other remedies available to a contractor/supplier.
There are a few things that a Florida property owner can do to protect themselves from a mechanic’s lien. Obviously timely paying contractors/suppliers should prevent the filing of a lien. However, if a property owner is working with a contractor, he/she may not know who has been subcontracted to do work on their property, or who has provided materials for the project.
One way to address this issue is to file a Notice of Commencement before beginning a construction or remodeling project. This places all subcontractors/suppliers on notice that the property owner is beginning construction, and places a time frame on when subcontractors/suppliers can file a lien on the property. The Notice of Commencement must be recorded at the Clerk of the Circuit Court in the county where the construction will occur. The property owner should also post a certified copy of the Notice of Commencement at the job site, or alternatively post an affidavit stating that a Notice of Commencement has been recorded. A copy of the Notice of Commencement must be attached to the affidavit. Note that the building department is prohibited from performing any inspection if the Notice of Commencement is not also filed with the building department.
If the property owner is working with a contractor, the property owner should request from the contractor, via certified or registered mail, a list of all subcontractors and suppliers who have a contract with the contractor to provide services or materials to the property, even if this is required by the contractor in your contract. This way, the property owner will know which individuals/companies must be paid, and which subcontractors should provide the property owner with a release of lien once the property owner has paid for the services/materials.
The property owner should also obtain an affidavit from the contractor that identifies all unpaid parties who performed labor, services, or provided materials to the project. The property owner should make sure that the contractor provides them with final releases from these parties before making a final payment, or alternatively always require a release of lien from anyone who does work on their project.
Florida’s mechanic lien law can be confusing. If you should have any questions or concerns, feel free to contact De Varona Law for a free consultation. De Varona law is a law firm serving Dade, Broward, Palm Beach and Martin Counties.
