1. Construction Liens for Building Officials 2018
By: Larry R. Leiby, Esq. Florida Bar Board Certified Construction Law Expert Author, Florida Construction Law Manual Published by Thomson-Reuters-West in print and on WestLaw
Adjunct professor teaching construction law at FIU LAW

2. What is a construction lien? Where does it come from? – history

3. What property can be liened. Not governmentally owned, not easements
What property can be liened? Not governmentally owned, not easements. Owned parcels, leaseholds; condominiums; insurance proceeds (Fla. Stat ) are lienable Who has the right to lien? Fla. Stat Chain of privity husband wife

4. Can lien rights be waived in a contract? In advance of doing the work?
Fla. Stat (2)
Are construction lien rights an exclusive or cumulative remedy?
Fla. Stat
What are the duties of an owner under the construction lien law?
Record and maintain an effective NOC
Make proper payments
Obtain a contractor’s final affidavit

5. What is a notice of commencement (NOC) and what is in it?
Fla. Stat Not for subdivision improvements or professional design contracts
Who signs and records the NOC? )a.
When should the NOC be recorded?
Before work starts and after the
construction mortgage is recorded

6. What is a notice of termination of NOC?
Fla. Stat – note also expiration of NOC
What are the duties of a professional lienor to obtain a lien?
Record Claim of lien within 90 days of last work
Serve copy on owner within 15 days of recording
What are the duties of a subdivision improvement lienor to obtain a lien?
Fla. Stat
Record claim of lien within 90 days of last work
Serve copy on owner within 15 days of recording (FKA?)

7. What are the duties of a laborer in order to obtain a lien?
Personal labor only
Record claim of lien within 90 days of last work
Serve copy on owner within 15 days of recording
What are the duties of a prime contractor in order to obtain a lien?
Record Claim of lien within 90 days of last work
Serve copy of owner within 15 days of recording
Serve contractors final affidavit at least five days before filing suit
What is a contractor’s final affidavit and who cares?
Fla. Stat (3)(d)(1)
Proper payments

8. What are the duties of a non-privity lienor (nonprofessional and non-subdivision improver) in order to obtain a lien?
Fla. Stat (2)
Notice to owner served within 45 days of FIRST work or delivery of materials
Record Claim of lien within 90 days of last work
Serve copy of owner within 15 days of recording

9. What is a notice to owner (NTO)?
Good news – bad news
Written, not verbal
What must be included in a NTO?
Look at form

10. Who gets served with the NTO?
Owner - required
Others listed in the NOC
Parties between lienor’s customer and owner (e.g., G.C.)
Others who may help you get paid
What does “served” mean in the Construction Lien Law?
Fla. Stat (effectively it means “delivered”)
Multiple owners; Condominium, agents
When must the NTO be served (if required)? Should one wait until the customer goes past due?
40 or 45 days from first work or delivery, depending on method of service. No excuse for being late

11. How do you prove service of a NTO?
Evidence of delivery - Return receipt card or postal record for certified mail
What if a new scope of work is started as an extra or separate contract? Must I serve a new NTO?
What was communicated in the original NTO?
What is a claim of lien?
Fla. Stat – Notice to the world of the claim

12. How much may be claimed in a construction lien?
No attorney fees, restocking charges, lost profit, unperformed work
Where is a construction lien recorded?
County Recorder in the County(ies) where the project is located
What is a fraudulent lien?
Fla. Stat – willful exaggeration or grossly negligent exaggeration Safe harbor for attorney preparation so long as no misinformation to attorney

13. How long does a claim of lien last? 1 year, UNLESS
Fla. Stat – Notice of contest, summons to show cause, payment/satisfaction; arbitration
What good is a construction lien?
Secures indebtedness to extent of owner’s equity – not a panacea
Ability to retake uninstalled materials Fla. Stat
Claim for undisputed amounts owed for 30 days Fla. Stat

14. What is the priority of a construction lien vis a vis other liens, mortgages, deeds?
First in time, first in right. Example:
1) Mortgage
2) Notice of commencement
3) Lien of architect
4) Lien of subdivision improver
5) Deed
6) New mortgage
7) Lien of contractor
8) Lien of electrical sub
9) Lien of plumbing supplier
10) Lien of laborer

15. What is an affidavit of abandonment and notice of recommencement?
Fla. Stat (4)
What kind of release should be given/received when receiving/making payment?
Fla. Stat – statutory forms
Release for dollars (ten dollars and other consideration?)
Release through time
Release of more than just lien rights (cumulative remedy)
Final or partial (don’t take great comfort in the title)
Timing – before, after, or in exchange for payment
Conditional releases
Copies – intend to be an original?
Must a recorded release be given?

16. Can I transfer a lien off of my property to alternate security?
Fla. Stat
If the lien is transferred does it impact who I may or should sue for enforcement?
Oh yeah
Are there any criminal penalties in the lien law?
Fla. Stat Misapplication of undisputed payments
Fla. Stat Known false statement about status of payments
Fla. Stat Knowingly filing a fraudulent lien

17. What is an “exemptory payment bond” (private work)?
Fla. Stat
What must be done to make claim on the exemptory payment bond?
Preliminary notice – notice of nonpayment
What is a conditional payment bond?
Fla. Stat – Does not exempt property from liens

18. How do I avoid having to know all this stuff?
Get cash in advance.