Construction Law Archives - Wetherington Hamilton, P.A.

Recent Changes to Florida’s Construction Lien Statute and Public Bonded Projects – Changes to Florida Statute Section 255.05

October 10, 2019/in Articles, Construction Law/by Ted Hamilton

Recent Changes to Florida’s Construction Lien Statute and Public Bonded Projects – Changes to Florida Statute section 255.05

By: Theodore J. Hamilton, Esq.

The Florida law for a subcontractor, equipment lessor or materialman to perfect a claim on a public construction bond recently changed. Law of Florida 2019-94: see link here: http://laws.flrules.org/2019/94 Florida Statute section 255.05 governs the process to be followed to claim on a bond on a public construction project with a public entity in the State of Florida. This section does not apply to Federally Bonded projects. The changes focus primarily in two areas:

The new law requires the Notice of Non-Payment to be signed under oath before a notary;
The new law adds a penalty of non-enforce-ability if it is determined the notice of non-payment is willfully exaggerated in its amount; and
The new law confirms that the time frame for serving the notice of non-payment for rental equipment is 90 days after the last date the rental equipment was on the job site and available for use.

The Notice of Non-Payment must now be under oath.

The new Florida Statutes 255.05 provides a form of a Notice of Non-Payment. This form must now provide for a notary to confirm that the person signing the Notice did so under oath. The new form must be “substantially” followed and must include the oath. Without the required elements the claimant risks making the notice invalid.

The new law adds a penalty of non-enforcement if the notice of non-payment is willfully exaggerated in its amount.

The Notice of Non-Payment must be accurate. To be fraudulent the Notice would either be (1) willfully exaggerated as to the amounts due; (2) willfully include a claim for work not performed or materials not furnished; or (3) prepared the notice of nonpayment with willful and gross negligence, which results in a willful exaggeration. Ultimately, the notice needs to be accurate. This new provision will give owners a defense should the Notice contain willful errors.

The new law confirms the time frames for an equipment rental supplier to serve the notice of non-payment.

For equipment rental suppliers, the new statutory changes make it 100% clear that the notice of non-payment must be served no later than 90 days after the last date the rental equipment was on the job site and available for use. Thus, if the equipment is on the site, but broken down, the 90 days would run from the date it was last usable. These changes, clarify some ambiguities created by conflicting decisions in the Florida Courts as to the last day available to serve the Notice in such a situation.

Conclusion:

This is just a brief summary and not a complete review of each situation. It highlights one of the changes in the last year to the Construction Lien provisions in Florida. For further information contact our office.

The Basics of Florida’s Construction Lien Law

June 27, 2016/in Articles, Construction Law/by Ted Hamilton

As the prices of real estate continue to rise in the Florida, more and more people are contemplating making changes or additions to their homes through construction improvements. Dealing with a contractor of any kind, especially for a remodel, is often a difficult and uncertain task both financially and in respect to the final result. Before entering into any contract with a contractor, make sure that you are dealing with a licensed contractor. If you are not, then be sure that you know who you are dealing with and understand that you are responsible for pulling permits if necessary.

Also, protect yourself when you pay your contractor. As a general matter, a licensed Florida Contractor has the right to file a lien on your property if they are not paid after jumping through a few hoops. First, a General Contractor usually files a Notice of Commencement in the Public Records where you home is located. This is required for obtaining a permit. This document protects the General Contractor and all Subcontractors should you sell your property while construction is taking place. All liens filed on the property for the job, relate back to the date of the filed notice of commencement.

Next, any subcontractors working through the contractor must send you a notice to owner telling you they are working on the home. This has to be sent within 45 days after they first start to work on the job. When you pay your contractor, you should receive a release or partial release from all subcontractors that have sent you a notice to owner along with a partial release from your contractor. You can also get your Contractor to give you an affidavit prior to payment telling you all subcontractors they have hired on the job. This will ensure that you are paying the correct amounts as the job progresses.

Finally, if a licensed subcontractor or contractors has not been paid, they have the right to file a lien on your property within 90 days of completion of their work on the job. This must also be sent to the owner. It is filed in the public records of the County where the jobsite is located. The owner has the right to contest this lien which shortens the time for the Contractor to file suit to foreclose the lien to 60 days. Otherwise, the contractor must file suit to foreclose the lien within one year of filing the lien or the lien is no longer a valid lien. If suit is filed, the Contractor has the right to recover all attorney’s fees and costs in the foreclosure case if they prevail.

A couple more points, unlicensed contractors cannot file a lien. It is illegal to do so. Furthermore, if a contractor includes amounts in their lien that they have not paid to their subcontractor, this will result in an invalid lien filing.

Feel free to call our office if you need further help regarding lien filings or your construction contract.

Ted Hamilton, Esq.

Founding Partner

What you need to know about Florida Construction Lien Law

August 13, 2014/in Articles, Construction Law/by Ted Hamilton

Do you know everything you need to know about Florida construction lien law? Below are some FAQ and answers that may give you exactly what you are looking for. Remember, at Wetherington Hamilton, P.A. we can help you in all areas of Construction Law.

What property can be liened? Liens can only attach to privately owned real estate. Government owned property is exempt from construction liens.

What services are lienable? In order for a lien to be filed the service must be related to the permanent improvement of privately owned real estate. This includes most services used to improve a property and most identifiable materials incorporated into a project whether the work was performed pursuant to a written contract or oral agreement. Services that do not provide a permanent benefit to the property, such as lawn care, are not lienable.

What Notice needs to be given? If there is a contractual relationship A notice to owner must be served on the owner within 45 days after providing the services or delivery of the goods. Failure to provide such notice can result in forfeiture of your right to file a lien for unpaid work. Keep in mind that the statue requires the owner to receive the notice within 45 days from the date the work was started on the jobsite or materials were delivered, unless professional services were provided, or as a laborer, unless it was mailed, by certified mail, return receipt requested, no later than 40 days after delivery of materials or commencing to provide services.

When should the lien be recorded? A Claim of Lien must be recorded within 90 days of the construction services provided, whether they are labor or material. A copy of the Claim of Lien must be served on the owner within 15 days from the date it is recorded. After serving and recording a Claim of Lien, the lienor must file a lawsuit to foreclosure the claim of lien within 1 year from the date it was recorded. However, if a “Notice of Contest of Lien” is filed by the owner, the lienor only has 60 days to file suit after the Lien is recorded. If a suit is not filed within the 1 year or 60 day deadlines (depending on the situation) the Claim of Lien is subject to dismissal.

By Attorney Kalei McElroy Blair