As much as we would like for construction projects to go as smoothly as possible, issues will inevitably come up, especially regarding payment. When payment disputes arise, the mechanics lien is the most powerful tool a construction professional can use in order to sort the issue.
A mechanics lien binds a property with a record of all unsettled payments related to its construction or improvement. Interested parties such as potential buyers and financiers would be wary of buying a property with liens attached to it. Filing a mechanics lien, therefore, is one of the most effective ways to persuade property owners to produce payment.
This guide will tell you the key things you need to know about filing a mechanics lien in Florida, from ensuring that you protect your lien rights to filing the mechanics lien itself.
- Who may file a mechanics lien in Florida?
- How do you file a Notice to Owner in Florida?
- How to File a Mechanics Lien in Florida: A 4-Step Process
- 3 Common Mistakes When Filing a Mechanics Lien in Florida
Who may file a mechanics lien in Florida?
Most construction professionals are entitled to file a mechanics lien in Florida. Contractors, subcontractors, material suppliers, architects, and engineers all have lien rights.
However, some restrictions apply depending on your profession’s license requirements and on your position in the contracting chain.
Engineers, architects, and other tradesmen must hold valid licenses for their mechanics lien to be valid. Contractors and subcontractors must, therefore, ensure that they are licensed to practice in the state before they can exercise their lien rights.
Subcontractors beyond the second tier are also not allowed to file a valid mechanics lien. Sub-sub-subcontractors, material suppliers to sub-sub-subcontractors, and material suppliers to material suppliers are not entitled to assert a Florida construction lien.
Most importantly, only those who have filed a Notice to Owner can file a mechanics lien in case of delayed or non-payment.
How do you file a Notice to Owner in Florida?
Florida is one of the states that require a preliminary notice, also known as Notice to Owner.
Serving a Notice to Owner is required by law in order for your mechanics lien to be valid, so submitting this notice should always be your first step.
Also note that Florida has specific Notice to Owner requirements when it comes to format and contact, so make sure that you are filing the document using a properly prepared form.
Are all construction participants required to submit a Notice to Owner in Florida?
All contractors, subcontractors, and material suppliers that are not in direct contact with the property owner must serve a Notice to Owner. Laborers (i.e. employees of contractors) and architects are generally not required to do so.
When should I submit the Notice to Owner in Florida?
The Notice to Owner must be served within 45 days after you start furnishing labor or materials to a project. You may also send the Notice to Owner before you start working on a project.
Who should I serve the Notice to Owner on?
The notice must be served on the property owner and every party above you in the contracting chain. This means that if you’re a sub-subcontractor, you must serve the Notice to Owner on the subcontractor that you’re in direct contact with, the general contractor, and the property owner.
How should the Notice to Owner be sent in Florida?
You may send it by certified mail or by personal delivery. Whichever method you choose, the key is that you are able to prove your compliance with the notice requirement.
If you send the Notice to Owner by certified mail, keep your post office invoices and pick the option that asks for a return receipt. If you serve the notice by hand, ask for a receipt signature from an authorized signatory (i.e. one of the property owners) to prove that they have received the document.
The best practice is to serve the Notice to Owner in Florida via certified mail with return receipt requested.
How to File a Mechanics Lien in Florida: A 4-Step Process
- Prepare the Mechanics Lien
- Record the Mechanics Lien
- Serve a Copy of the Lien on the Owner
- Foreclose or Release the Lien
Step 1. Prepare the Mechanics Lien
Now that you have served the Notice to Owner properly and on time, you have secured your right to file a mechanics lien. The next step is to ensure that the mechanics lien you are going to file is properly prepared as well.
IMPORTANT: the Florida mechanics lien must follow a specific format and must contain specific warnings written in a specific language.
The detailed legal requirements may be found in Section 713.08 of the Florida Statutes. In general, the mechanics lien must contain the following information:
- The name and address of the claimant
This is your information. If you are filing as an individual, include your name and address. If you are filing on behalf of your company, include your full legally registered business name and address.
- The name of the party with whom the claimant contracted
This is the name of your direct employer. If the employer is the same as the owner, list their name(s) here anyway.
- The name of the property owner
This is the name of the property owner(s). If there are multiple property owners, list ALL their names.
- The labor, services, or materials furnished and their contract values
This is a general description of the kind of services that you have rendered for the project. The amount and description of specially fabricated materials that are yet to be incorporated into the project must be separately stated.
- The general description of the property sufficient for identification
This may simply be a full street address or the parcel information (if the location is on an unnamed street). A legal property description is not required.
- The amount owed to the claimant
This is the amount that you are owed, and it should not include any fees that are not related to the construction services you provide. Attorney fees and lien fees are not to be included in this amount.
- The dates on which the first and last items of labor or service were provided
This consists of the date when you commenced work on a project and the date when you last furnished your services to the project.
- The date and method of service of the Notice to Owner, if applicable
This consists of the date and method of delivery of your Notice to Owner. General contractors and parties that are in direct contact with the property owner must include the date and method of delivery of the copy of the notice to the contractor or subcontractor.
The following warning and information must be in sufficiently similar form:
Must a mechanics lien in Florida be notarized?
Yes! As stated in the statutory clause above, there is a required signature of a notary public in the form. If you file a mechanics lien that is not notarized, it will be declared null and void by the court.
What happens if I include fraudulent information in my Florida mechanics lien?
Florida state laws specifically declare that willfully filing a fraudulent lien is considered a third-degree felony. Including fraudulent information and making false claims in your mechanics lien in Florida may get you in prison (or on probation) and may result in your having to pay hefty fines.
There are many ways in which you can unwittingly commit a huge mistake when preparing your Florida mechanics lien. These are just two of the absolute no-no’s when filing a Florida construction lien:
- Unlicensed contractors, subcontractors, and other construction participants who are required to abide by licensure requirements must not attempt to file a mechanics lien.
Recording a mechanics lien knowing that your claim will be unenforceable is a serious offense in Florida. First-time offenders may receive a warning while repeat offenders may face jail time on top of paying expensive fines.
- Lienors must not inflate the amount that they claim on a mechanics lien.
Exaggerating the lien amount is another serious offense that is considered a third-degree felony in Florida.
When preparing a mechanics lien document, always claim an amount that reflects that payment for the service that you have rendered to a project. Do not calculate attorney fees, lien filing costs, or other irrelevant values into your mechanics lien amount.
Step 2. Record the mechanics lien
You have the document ready and you have had it notarized — now it’s time to file the mechanics lien.
When should I file a mechanics lien in Florida?
The mechanics lien must be filed within 90 days after the last day of furnishing labor or materials to the project. The best practice is to not wait until the last day to file the mechanics lien. Missing this 90-day deadline is detrimental to the validity of your claim and to your chance of getting paid.
Where should I file a mechanics lien in Florida?
A mechanics lien should be recorded in the clerk’s office of the county where the project is located. If the project is located in multiple locations, you must file a mechanics lien in each of the counties that cover the project locations.
How should I file a mechanics lien in Florida?
There are multiple ways to record your Florida mechanics lien in the county clerk’s office. You may walk into the clerk’s office and file the lien in person, you may send your mechanics lien to the clerk’s office via mail, and you may also file the mechanics lien electronically.
Lining up in the clerk’s office is preferable over filing a mechanics lien via traditional mail. Mailing a mechanics lien takes more time, and a short delay in the recording process may result in your failing to meet the deadline requirements.
If you choose to do a walk-in visit to the county clerk’s officers, you must bring 2 original copies of your mechanics lien: one for recording and one for keeping a certified copy.
Another feasible option is to file a Florida mechanics lien electronically. Handle is one app that allows users to file a mechanics lien properly and on time. It ensures that your mechanics lien form meets all statutory requirements, and it also takes care of everything associated with liens, from serving a Notice to Owner to foreclosing an unsettled lien.
Step 3. Serve a copy of the mechanics lien on the owner
This is another very important step that must not be missed: a copy of the mechanics lien must be served on the property owner before filing the lien or within 15 days after the mechanics lien has been filed.
How should I serve the mechanics lien on the property owner in Florida?
- By registered or certified mail or by Global Express Guaranteed
Always ask for proof of delivery. The lien is considered served on the date of mailing.
- By personal delivery to the property owner
This may be the property owners themselves or a representative of their business such as an office manager. Ask for signature as proof of delivery.
- By public posting on the worksite
Posting the copy of the mechanics lien in a conspicuous location on the job site is also a valid way of serving it on the property owners.
Step 4. Foreclose or Release the Lien
After filing the mechanics lien in Florida, two things could happen: either you get paid within the allowed time or you don’t.
If you get paid, then you will have to release the lien. Releasing the mechanics lien in Florida is required, and it generally follows the same process as filing the mechanics lien. Your document must contain the same information but must also include details regarding its filing (e.g. date of filing, location of county clerk’s office, recordation book number).
Note that the lien release must be filed in the same county clerk office where the mechanics lien was filed, and that the copy of the lien release documents must be served on the property owner and the general contractor.
IMPORTANT: It is highly advisable that you do not file a lien release in Florida before you get the payment.
If payment does not seem to be coming through, you must file a lawsuit to foreclose the lien and potentially earn your payment from the auction proceeds of the property.
The mechanics lien in Florida must be foreclosed within 1 year after its recordation in the county clerk office. However, the owner may shorten this deadline by filing a Notice of Contest to Lien. If this happens, the deadline is shortened to 60 days.
Failing to file a foreclosure lawsuit before the deadline will cause your lien to expire, after which it will no longer be enforceable.
3 Common Mistakes When Filing a Mechanics Lien in Florida
Missing a deadline
Florida does not tolerate missed deadlines, even by just one day. You must always keep track of these deadlines and submit the documents as early as you can.
Remember that the Notice to Owner may be submitted before you start work on a project, and the copy of the mechanics lien may be served on property owners before it is recorded.
Not preparing a proper mechanics lien document
The mechanics lien in Florida must contain specific information in a specific format. Be sure that these pieces of information are correct. Claimants can make silly mistakes with seemingly straightforward information, from writing an incorrect business name (e.g. not including Ltd. or Inc. in their names) to padding the lien amount with unnecessary costs.
Be diligent in filing the mechanics lien in Florida because small mistakes may cost you your right to get paid.
Failing to foreclose the lien
Failing to foreclose the lien within the deadline causes the lien to expire, which means that all your efforts of preparing the mechanics lien will essentially go to waste. If you think that payment will not be completed, you must initiate a foreclosure action before the mechanics lien’s expiry date.