Time is of the essence when it comes to construction liens

Published · 2 min read

When a Florida electrical contractor wasn’t paid, the company filed a claim of lien 95 days after it had last worked on the job site. The contractor believed that since it had gone back on day 94 to tackle some final punch list items the time frame for its filing would be extended. The Florida court disagreed.

Time periods associated with the lien process differ by state but are usually strictly interpreted by most local courts. In Florida, for example, contractors must file a claim of lien within 90 days of last doing work. Corrective work, such as a punch list, is not consider last work.

A lien is an important device to secure payment and increase a contractor’s leverage for getting paid. But it is imperative that you comply with very specific time frames to assert your lien rights. Missing a deadline by just one day could render your lien unenforceable. Let’s take a look at four specific deadlines associated with most, but not every, construction lien:

  • Notice to owner/Preliminary notice: This document is sent to owners to inform them that work is being done on their property. The notice establishes your right to file a lien and usually must be sent either prior to or within a set number of days after work first starts on a project. In many states, Florida included, it is usually 45 calendar days.
  • Claim of lien: As described in my example of the Florida electrician, a claim of lien must be filed within a specified timeframe from when the last substantive work was done on the property. The claim is often recorded in the public records where the project is located. Once recorded, you have another deadline (in Florida it is 15 days from recording) to send a copy of the claim of lien to all interested parties. Usually that would be the contractor and owner, and anyone else listed on the notice of commencement.
  • Contractor’s final affidavit: In some states, you are required to send a contractor’s final affidavit within a certain number of days before the suit is filed to foreclose the claim of lien. This document is intended to inform the owner, prior to their final payment, if any subcontractors or vendors are still owed money.
  • Suit to foreclose. Finally there are often time restrictions for when you must file suit to foreclose. In Florida, for example, you must file suit to foreclose within one year of the recording date of the claim of lien. After that, the lien is automatically extinguished.

Exercising your lien rights is often your last resort. But it’s important to be prepared in case you need to enforce a lien to protect your interests. Lien laws are complex and vary depending on the state the construction work is performed. To understand time restrictions and other lien requirements, it’s best to contact a local construction lawyer.

Alexander Barthet is a board certified construction attorney in Florida and holds a B.S. in mechanical engineering. He manages The Barthet Firm, a nine lawyer construction law firm in Miami, and maintains a construction law blog at www.TheLienZone.com. He can be reached at 305-347-5295 or [email protected]

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