The filing of a Notice to Owner is just one of many steps in perfecting a claim of lien under Florida law. The Notice to Owner is filed by a subcontractor or materialman who does not have a contract with the Owner. This notices simply lets the Owner know “hey, I am working on your project and if I don’t get paid I will put a lien on your property.” This notice is not filed in the public records and is not an encumberance on the title of the Property. Therefore, do not feel guilty for serving a Notice to Owner. The Notice to Owner’s only purpose is to preserve your lien rights in the event that you will need them later, it is not a threat to place a lien or an encumbrance on the property whatsoever.
Many tradesmen do not send the Notices to Owner, and in effect are waiving any rights to properly lien the property. In fact, a failure to timely file a notice to owner will kill your lien rights. (there is very limited exception to this rule for laborers.) The time period for filing a notice to owner is ” 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.[713.06, Fla. Stat.]”, during this time there is usually no dispute between the potential lienor and the contractor or owner. (This is generally why the prospective lienor never considers serving the Notice to Owner. )
What is a Notice to Owner?
It is the first step to perfect a lien on a project. It tells the owner you are working on or delivering materials to his property and that you file a lein if you are unpaid.
Here is the form of the Notice to Owner as provided by Florida Stat. 713.06
WARNING! FLORIDA’S CONSTRUCTION LIEN LAW ALLOWS SOME UNPAID CONTRACTORS, SUBCONTRACTORS, AND MATERIAL SUPPLIERS TO FILE LIENS AGAINST YOUR PROPERTY EVEN IF YOU HAVE MADE PAYMENT IN FULL.
UNDER FLORIDA LAW, YOUR FAILURE TO MAKE SURE THAT WE ARE PAID MAY RESULT IN A LIEN AGAINST YOUR PROPERTY AND YOUR PAYING TWICE.
TO AVOID A LIEN AND PAYING TWICE, YOU MUST OBTAIN A WRITTEN RELEASE FROM US EVERY TIME YOU PAY YOUR CONTRACTOR.
NOTICE TO OWNER
To (Owner’s name and address)
The undersigned hereby informs you that he or she has furnished or is furnishing services or materials as follows:
(General description of services or materials) for the improvement of the real property identified as (property description) under an order given by_______________.
Florida law prescribes the serving of this notice and restricts your right to make payments under your contract in accordance with Section 713.06, Florida Statutes.
IMPORTANT INFORMATION FOR
Under Florida’s laws, those who work on your property or provide materials and are not paid have a right to enforce their claim for payment against your property. This claim is known as a construction lien.
If your contractor fails to pay subcontractors or material suppliers or neglects to make other legally required payments, the people who are owed money may look to your property for payment, EVEN IF YOU HAVE PAID YOUR CONTRACTOR IN FULL.
–RECOGNIZE that this Notice to Owner may result in a lien against your property unless all those supplying a Notice to Owner have been paid.
–LEARN more about the Construction Lien Law, Chapter 713, Part I, Florida Statutes, and the meaning of this notice by contacting an attorney or the Florida Department of Business and Professional Regulation.
Copies to: (Those persons listed in Section 713.06(2)(a) and (b), Florida Statutes)
Who needs to send a notice to Owner?
Fla. Stat. 713.06(2)(a)
All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, must serve a notice on the owner setting forth the lienor’s name and address, a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished. A sub-subcontractor or a materialman to a subcontractor must serve a copy of the notice on the contractor as a prerequisite to perfecting a lien under this chapter and recording a claim of lien. A materialman to a sub-subcontractor must serve a copy of the notice to owner on the contractor as a prerequisite to perfecting a lien under this chapter and recording a claim of lien. A materialman to a sub-subcontractor shall serve the notice to owner on the subcontractor if the materialman knows the name and address of the subcontractor.
Why should you send a Notice to Owner?
Now more than ever, with the state of the economy, your direct contract with a prime contractor or (subcontractor) may not be enough to ensure payment. The contractor may be noncollectable or simply out of business leaving with you with no proper party to go after. However, if you preserve your lien rights the property becomes collateral for your work in place at the Project.
Florida’s lien laws are complicated and need to be followed to create a valid lien. Therefore, always consult an attorney who specializes in construction law with any question you may have.
[Florida Courts are obliged to give the mechanic’s lien statute a strict, and therefore literal, reading. See Home Electric of Dade County, Inc. v. Gonas, 547 So.2d at 110-11; Stresscon v. Madiedo, 581 So.2d 158 (Fla.1991), approving 561 So.2d 1351 (Fla. 3d DCA 1990); accord Corporation of the President of the Latter Day Church of Jesus Christ v. Seymour Electric Supply Co., 558 So.2d 88, 90 (Fla. 1st DCA 1990) Accordingly, without timely filing a notice to owner you have no lien rights.]
Article by: Andrew Douglas, Esq., Andrew Douglas, P.A., 954.474.4420