Construction Lien Archives - Wetherington Hamilton, P.A.

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.

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

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

The Basics of Florida’s Construction Lien Law

Wetherington Hamilton, P.A.

Wetherington Hamilton, P.A.

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Wetherington Hamilton, P.A.

Wetherington Hamilton, P.A.