How much time do I have to file a lien?
A lienor has 90 days after substantial completion of its work within which to file its claim of lien, which must be recorded in the official records of the county where the work was performed. “Substantial completion” can be a tricky concept, especially on a job where work may have started and stopped on more than one occasion. Punch list work typically does not delay the start of the 90 day clock, so you may need to file a lien if an owner has not paid for work performed and the 90 days is about to run out.
Do I have to send a notice to owner?
It depends upon whether you have a contractual relationship directly with the owner. If you do, a notice to owner is not required. If you don’t, a notice to owner must be served on the owner within 45 days after delivery of materials or starting to provide services to the jobsite or you forfeit your right to file a lien for unpaid work. Note that the statute requires the owner to receive the notice within 45 days from the date you started working on the jobsite or delivered materials, unless you provided professional services (e.g., architecture, engineering) or as a laborer, unless it was mailed, by certified mail, return receipt requested, no later than 40 days after delivery of materials or commencing to provide services.
My contractor walked off the job. What do I do now?
The first thing you need to do is determine how much of the contract price (assuming a fixed price contract was agreed to, plus any agreed change orders) has already been paid to the general contractor. The next step is to determine how much money, if any, is owed to the general contractor, subcontractors and suppliers (and their subcontractors and suppliers). Send a demand for copies of contracts and statements of account to the general contractor to obtain the contracts the general contractor entered into with the subcontractors and suppliers and to find out how much each is owed. If the contractor fails or refuses to supply this information, send demands for this information to each subcontractor or supplier you have received a notice to owner from, and any other subcontractor or supplier you know about from any information received from the general contractor. Next, immediately (before waiting for responses) get bids from other contractors for the cost to complete the work as originally agreed to (including agreed changes). Make sure the bids separate out the cost of repairing or redoing any defective work performed by the original contractor as a separate line item. If the cost to complete exceeds the balance owed on the original contract, you need to proceed cautiously or you could be liable for the excess. You will need to file a notice of termination to terminate the notice of commencement relating to the original contractor. You will then need to file an affidavit of your intent to recommence construction, as well as a notice of commencement. You may have to deal with multiple lienors claiming under the original contractor, which is why it will be important to be able to show the cost of completing construction as a reason you should not have to pay the full amount of their claims.
Are there any prerequisites to filing suit?
If you are a contractor seeking to collect on a claim of lien, a contractor’s final affidavit must be served on the owner before filing suit. If you are a property owner seeking to sue your contractor or file a counterclaim against your contractor you will probably have to give a notice of claim under Chapter 558, Florida Statutes, unless in the construction contract you opted out of the notice requirements of the statute. Failure to serve the notice before undertaking remedial work could impair your ability to seek damages against the contractor for defective work. The notice requirements are highly technical, and a general notice of defects is not sufficient to comply with the statute.