Florida Notice to Owner

Introduction

Key Things to Know

1. 1

   Count from your own first day on the job. Section 713.06(2)(a) measures the 45 days from when the lienor commences to furnish labor, services or materials, not from the recording of the owner's notice of commencement and not from an unpaid invoice.

2. 2

   A second deadline can arrive before the 45 days do. The notice must be served in any event before the date of the owner's disbursement of the final payment after the contractor has furnished the final payment affidavit, which on a fast job can be well inside six weeks.

3. 3

   Florida does not shrink a late claim, it defeats it. The statute states that the failure to serve the notice, or to timely serve it, is a complete defense to enforcement of a lien by any person, and section 713.06(2)(f) requires strict compliance with the timing.

4. 4

   The owner is not always the only recipient. A sub-subcontractor or a materialman to a subcontractor must also serve a copy on the contractor, and a materialman to a sub-subcontractor must copy the contractor and must also serve the subcontractor if it knows that subcontractor's name and address.

5. 5

   Laborers are excepted by name in section 713.06(2)(a), and the section as a whole is headed Liens of persons not in privity, so a contractor who signed with the owner is not the party this notice is aimed at.

6. 6

   Section 713.06(2)(c) says the notice may be in substantially the statutory form but must include the information and the warning in it, starting 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.

7. 7

   Mailing inside 40 days buys you the date of mailing. Section 713.18(2) makes service effective on the mailing date if the notice went by registered, Global Express Guaranteed or certified mail within 40 days of first furnishing and you keep a mail log or USPS tracking records.

Florida Requirements for Preliminary Notice

• Forty Five Days From When You Commence Furnishing

  Section 713.06(2)(a) requires the notice to be served before commencing, or not later than 45 days after commencing, to furnish labor, services or materials. The trigger is the lienor's own commencement of furnishing. The owner's recorded notice of commencement does not start the count.

• The Final Payment Cut Off That Can Arrive First

  The same sentence adds an outer limit: the notice must be served, in any event, before the date of the owner's disbursement of the final payment after the contractor has furnished the affidavit under section 713.06(3)(d)1. On a short job that date can fall inside the 45 days, so the 45 is a ceiling and not a plan.

• Recipients: Owner, Contractor, and Sometimes the Subcontractor

  The owner in every case. A sub-subcontractor or a materialman to a subcontractor must serve a copy on the contractor. A materialman to a sub-subcontractor must copy the contractor and must also serve the notice to owner on the subcontractor if it knows that subcontractor's name and address. A copy also goes to any additional person the owner designated in the notice of commencement under section 713.13(1)(b), although section 713.06(2)(b) says missing that copy does not invalidate an otherwise valid lien.

• Laborers Excepted, and the Section Reaches Only Lienors Not in Privity

  Section 713.06(2)(a) begins all lienors under this section, except laborers. Section 713.06 is itself headed Liens of persons not in privity, and subsection (1) describes a materialman or laborer not in privity with the owner, a subcontractor or a sub-subcontractor. Section 713.06(3)(c)1. then protects laborers on the payment side: the owner is under no obligation to any lienor, except laborers, from whom it has not received a notice to owner at the time of making a payment.

• The Prescribed WARNING and the Statutory Form

  Section 713.06(2)(c) says the notice may be in substantially the statutory form and must include the information and the warning contained in it. That means the capitalized WARNING that Florida's construction lien law allows liens even where the owner has paid in full and that the owner must obtain a written release every time it pays the contractor, the NOTICE TO OWNER heading and addressee block, the description of services or materials and of the property, the order under which you furnish, the IMPORTANT INFORMATION FOR YOUR PROTECTION paragraphs, your signature, name and address, and the copies to line.

• Service Under Section 713.18, With Posting as a Last Resort

  Hand delivery to the person to be served, or common carrier delivery service or registered, Global Express Guaranteed or certified mail with postage or shipping paid by the sender and with evidence of delivery, which may be in an electronic format. Posting on the site of the improvement is permitted only if neither of those can be accomplished. Service on one owner, or one partner of a partnership that owns the property, is deemed service on all owners and partners.

• The Forty Day Mailing Rule and the Mail Log

  Section 713.18(2) makes service effective as of the date of mailing where the notice went by registered, Global Express Guaranteed or certified mail with postage prepaid, addressed as section 713.18(3) prescribes, and was mailed within 40 days after the date the lienor first furnished. You must keep either a mail log showing the registered or certified mail number issued by the USPS, the name and address of the person served and the USPS date stamp confirming the mailing date, or USPS tracking records showing the tracking number and verification of the date of receipt by the USPS.

• Wording Errors Are Forgiven, Late Service Is Not

  Section 713.06(2)(f) provides that where a lienor has substantially complied, errors or omissions do not prevent enforcement against a person who has not been adversely affected, but that a lienor must strictly comply with the time requirements. Section 713.06(2)(a) makes late or absent service a complete defense to enforcement of a lien by any person. Where no notice of commencement is recorded, section 713.06(2)(e) lets you rely on the building permit application, and section 713.06(2)(c) lets the form be combined with a notice to contractor under section 255.05 or section 713.23 and titled NOTICE TO OWNER/NOTICE TO CONTRACTOR.