Florida Mechanics Lien. Start with a Pre-Lien Notice.
Filing a mechanic’s lien in Florida is the most powerful device in your arsenal to get paid on a construction project. It is recorded with the clerk of the court in which the project is located. But do not lose sight of the fact that as a condition precedent, many contractors are also required a serve a pre-lien notice called a “Notice to Owner/Notice to Contractor”. Let’s go over that starting point in the mechanics lien process.
The purpose of the notice is to identify to the owner of your existence as a subcontractor or supplier. Since in many cases the owner has never met you, they need to know the sum total of all lien claimants who might eventually file a Florida lien. To prevent the filing of that mechanic’s lien in Florida, lien waivers are typically used on progress draws. Hence the requirement of receiving beforehand the pre-lien notice.
This means every contractor that does not have a direct contract with the owner is required to serve the notice before recording the Florida mechanics lien. Logically, this also means that if you are a prime contractor with a direct or verbal contract with the owner or developer, you can dispense with this requirement. But also note that if you are a subcontractor, such as a roofer, and have a direct contract with the owner, there is no need for that notice—in other words it is not the license status but who you have your contract with that determines.
When is it served? Florida mechanics lien statutes specify within 45 days of your first furnishing labor or materials to the project. If you are an equipment supplier, it would be 45 days of first delivery of the equipment for possible use to the premises, whether it is actually being used or not.
How was it served? Under Florida revised statutes section 713.18, effective 2012, you can serve the notice by either certified mail, posting of the job site, or personal service by a process server. However, the simplest and most common method is certified mail.
Once this is done, and you are now in a position to file a mechanics lien in Florida at the end of the project if you are unpaid.
Our recommendation is to mail the notice on the date the contract is signed so you have plenty of time. If you mail it certified within 40 days of first furnishing labor or materials, it is deemed effective on the date of mailing, regardless of when it is received. And, you don’t have to worry about unclaimed certified mail. If the recipient is stupid enough to refuse it, it is still considered served as of the date of mailing under code section 713.18(3)(a). All in all, service of the notice shows how serious you are in being paid and educates the owner to the likelihood of filing a Florida mechanic’s lien if you are not made a whole.
Florida has an interesting statutory provision requiring that the lien claimant keep a certified mail log. It is the opinion of National Lien Law this merely requires the keeping of the certified mail green card with the original receipt. Simply stable the return card to your original proof of service and you are ready to go with the possibility of later filing a mechanic’s lien in Florida.
If it is not mailed within 40 days of your first furnishing, the service is effective only on the date actually received which in turn must be within 45 days. For example, if you send out the notice on the 44th day, it would have to be overnight delivery because you have only one day left.
There is always the option of having it served by a process server, which costs about $50.00, but we believe this to be overkill.
The notices not have to be notarized.
When asking the question of how to file and mechanic’s lien in Florida, keep in mind the above. But if you have questions, feel free to give us a call.