Florida law provides significant protections to construction contractors, subcontractors and material suppliers. Contractors, subcontractors and suppliers have the ability to lien the real property which receives the benefits of their materials and efforts. If they are not timely paid, they have the ability to foreclose the property and receive payment from the foreclosure sale. A subcontractor who remains unpaid has the ability to lien and foreclose upon the property even if the property owner paid the prime contractor who in turn failed to pay the subcontractor. In other words, the property owner could pay twice.
To preserve such powerful rights, however, the contractors and suppliers must comply with Florida’s lien laws. Subcontractors and suppliers who do not have a written contract with the property owner must serve a notice to owner in a form which complies with the statute upon the property owner within forty-five days of the subcontractor’s commencement of performance or the supplier’s supplying of materials. Service should always be made through the use of certified mail. Any construction lender and the prime contractor should also be served.
The clock begins to run when the subcontractor first supplies labor to the job or the supplier delivers materials to the jobsite. If specially fabricated materials are being supplied, however, the clock begins to run when the fabrication begins. Strict compliance with the form of the notice is also required. A contractor who has a written contract with the property owner does not need to serve a notice to owner since the owner is already aware that the contractor is providing services or materials to the construction site.
To perfect lien rights, the contractor or supplier must also serve upon the property owner and record in the public records a claim of lien within ninety days after the final furnishing of labor or materials to the job. The claim of lien must be served upon the property owner before recording or within fifteen days after recording the claim of lien in the public records. Again, strict compliance with the form of the claim of lien is required. Service should again be made through the use of certified mail and the prime contractor and lender should also be served. Failure to properly serve and record the claim of lien constitutes a waiver of the lien rights.
Once a claim of lien is recorded and a contractor’s affidavit is provided to the property owner, the contractor or supplier may foreclose upon the real property and receive payment from the proceeds of the foreclosure sale. A foreclosure action must be brought within one year of the recording of the claim of lien. After one year, the lien expires and the right to foreclose is gone. The time for filing a foreclosure action may be shortened to sixty days if the property owner files a notice of contest of lien.