Construction Liens and Litigation

Florida Statutes Chapter 713.01 is Florida’s Construction Lien statute. This statute protects any person or entity who furnishes labor, material or certain services to residential or commercial real property by providing them with a Lien on the property provided they take certain steps. If the lien-holder is not paid, he/she can foreclose on that lien and force the property to be sold in a foreclosure sale and the proceeds used to pay the Lien. A valid contractor’s lien is just as powerful as the mortgage lien held by the bank.

If you are a Florida subcontractor (or a sub-subcontractor) then Chapter 713 is your best friend. It provides that if the General Contractor (GC) has failed to pay you for the labor and materials you furnished to the job under your contract with the GC, then you have the right to perfect a lien against the property. Since you do not have a direct contract with the property owner, however, you need to prepare and serve a Notice to Owner in order to disclose yourself to the owner and protect your lien rights. There are short deadlines for both the Notice to Owner and later the Lien itself. The Notice to owner must be served either before commencing work or no later than 45 days after your work begins on the property. The Lien must be recorded and served within 90 days of the date of final furnishing labor, services or materials to the property. The Lien must be both recorded with the clerk’s office in the County where the property is located and must be served on the owner and the GC via hand delivery, certified mail, carrier and/or posted at the property/job site. Do not wait. Time is indeed of the essence. If you are not paid in full on your last day on the job or given confirmation that same is forthcoming, then prepare and record the lien or contact us and we will help you do so. Florida Lien laws only work for you if you strictly comply with them and if you do not they are of no help to you at all. For example, if you are even one day late your lien is lost forever. After the lien is perfected and recorded you have only one year to get paid or foreclose on the lien. And the property owner can easily and usually does cut that time short by simply contesting your lien.

Either you hire us and we’ll make sure everything is prepared, served and recorded properly or you can prepare the Notice to Owner and/or Lien yourself. If you have a perfected Lien and if the GC still refuses to pay then you hire us and we file a foreclosure lawsuit against the GC and owner on your behalf. Since most GC’s and owners do not want to risk their reputation or the property we usually get our client’s paid in full or close to it. Although this is hourly fee litigation and a retainer against fees is required up front, since Fla. Stat. 713 provides that the prevailing party is entitled to have their attorney’s fees paid by the losing party, we often can recover all or part of our fees in a negotiated settlement.

Similarly, if you are a homeowner you have both the right and the need to know who your general contractor (GC) has hired as its sub-contractors; what work or trades they were hired to provide; and whether they have been paid in full by your general contractor out of the money you or your bank have paid. If a subcontractor claims it has not been paid by your general contractor, then you have the right to either pay that subcontractor directly or post a bond to cover that subcontractor’s lien. By doing so you avoid the worry of a future lien foreclosure by that unpaid subcontractor and you can later seek to obtain the money back from your general contractor if you had to pay twice. Since for most people their home is the largest and most important investment, you cannot be too careful. You must protect yourself and your home against un-licensed and unscrupulous contractors, poor workmanship, latent defects, and many other hazards. Before hiring any contractor you should first research the contractor online, check their license / complaint history, obtain and check references and get multiple written estimates from different contractors. When you hire a contractor you must make sure you have a signed written contract and that clearly spells out everything the contractor has promised to do, including the specific type and quality of materials to be used. The contract should also clearly set forth a schedule and date certain for completion of the job and contain a monetary penalty if that schedule is not met. The best way for both owners and contractors to avoid litigation is to have a signed written agreement which spells out both sides obligations.