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Exemption to Notice to Owner and Time frame for Filing Lien in Florida

Good Afternoon, We are a structural engineering company based in Arkansas and licensed nationwide. Typically we are a second or third-tier subcontractor on construction projects. Last year, we began work on a handful of projects with a new client in Florida. The client is Florida based, as are all of the projects. At this time, we have multiple projects that are past due by more than six months. Our client has become unresponsive and unwilling to resolve this issue with us directly. We did not submit a notice to owner; this is the first time we have had remittance issues with a client in Florida and were unaware of this need for this notice. In researching this matter, I came across the following information Notice to Owner. "A lienor not in direct privity of contract with the owner, except a laborer, a professional lienor, or a subdivision improver, is required to serve (i.e., deliver pursuant to F.S. 713.18) the owner with a notice to owner at any time before the expiration of 45 days from the lienor's first work or delivery of materials at the site." Does this exemption pay to us as a "professional lienor"? My second question is in regards to the length of time we have to file a lien. The work done on these projects was structural analysis calculations. This work was done in our offices in Arkansas, with the end product being digital submittals and some printed calculation books and stamped drawings. The work we did on these projects primarily took place between may of 2019 and August of 2019 with some additional information provided on a project in early September of 2019. Since that time, we are have been attempting to communicate and work with our client to receive payment. Could you please clarify what the time frame for being able to file a lien is for our situation? For some of these projects, construction is complete as of the end of last year. For others, construction is ongoing or has finished in the past month. Does it matter where the project is at, or is the time frame to file a lien dependent on our work alone?

2 replies

May 12, 2020

Engineers do not need to provide a Notice to Owner (NTO) in order to preserve their mechanics lien rights in Florida, according to Fla. Stat. § 713.03(3). Though, it's a good idea to send preliminary notice regardless of what's required. Still, if you've been unpaid for engineering work on a Florida construction project, mechanics lien rights should still be on the table even if a Notice to Owner wasn't sent. For more information on Florida's NTO requirements: Florida’s Notice to Owner – How To Prepare & Send Your NTO.

Florida's mechanics lien deadline

Fla. Stat. § 713.08(5) sets the deadline for making a Florida lien claim. That section reads, in relevant part, "The claim of lien may be recorded at any time during the progress of the work or thereafter but not later than 90 days after the final furnishing of the labor or services or materials by the lienor." So, Florida lien claimants will have 90 days from their last furnishing of labor, services, or materials for the project to file their mechanics lien claims. The overall project completion won't be relevant, at least in Florida. Every state has different mechanics lien deadlines, though. And, depending on the state, the lien deadline may be based on project completion date, the last furnishing date, or some other date (like a Notice of Completion filing date). For help discerning deadlines, the resources below should be useful. - State-by-State Map Of Lien Deadlines, Rules, & Guides - What’s the Difference Between Date of Last Furnishing and Date of Substantial Completion?

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May 13, 2020

There are two questions raised in this inquiry:

1) Whether the time has expired to file a Notice to Owner. Reading the inquiry it appears that the structural engineering company is a “subcontractor” at a bare minimum. The inquiry only cites part of the statute. A complete reading of the pertinent section of F.S. 713.06(1) provides “The notice must be served before commencing, or not later than 45 days after commencing, to furnish his or her labor, services, or materials, but, in any event, before the date of the owner’s disbursement of the final payment after the contractor has furnished the affidavit under subparagraph (3)(d)1.” Therefore, the answer to this question lies in whether or not payment has been made by the owner, a factual determination. Typically, contractors fail pay to subcontractors when they in turn have not been paid by the owner.

2) Whether the time has expired to file a Lien. F.S. 713.08(5) sets forth the time constraints for the filing of a lien. “The claim of lien may be recorded at any time during the progress of the work or thereafter but not later than 90 days after the final furnishing of the labor or services or materials by the lienor.” Based upon the information provided it appears that the right to lien would have expired prior to the end of 2019. However, the subcontractor should be aware that it still has rights, including the ability to bring a breach of contract claim and/or unjust enrichment claim against the contractor. In certain instances, if the subcontractor exhausts all efforts to pursue the contractor, then and only then can a claim for unjust enrichment be made against the owner.

I hope you found this information helpful.

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