How To File A Lien Against State Projects in Florida

Scott Wolfe Jr — Tue, 25 Oct 2011 15:30:05 +0000

Before jumping into the specifics on how public bond claims or “liens” work in the State of Florida, it’s important to point out the differences between private liens and state liens. I’ve written a few blog posts comparing these remedies, and here are some helpful links:

Now, to get to the matter at hand: State construction projects in Florida, and what you can do to preserve your rights when unpaid on these projects.

Part I: Understand You’re Filing A Claim Against The Bond, Not The Property

If you’re unpaid on a private construction project, you’re going to file a mechanics lien against the property itself. The property where you performed work acts a legal security for your debt, and in theory, you can foreclose on that property, have it sold at a sherriff’s sale, and collect your payment.

Obviously, the government is not going to let you foreclose on its own property. So on state projects in Florida, as elsewhere, if unpaid you can file a “lien” or claim against the project’s bond, and then foreclose or enforce against the bond.

Most state projects require the prime contractor to obtain and record a bond. Knowing who issued the bond is important, and if you don’t know if a bond exists or any details about the bond, you can request it. The Florida statutes provide that “any claimant may apply to the governmental entity having charge of the work for copies of the contract and bond.”

Part II: Send Required Preliminary Notices

Ah, the dreadful preliminary notice. Some states require notices on private and state projects, some states don’t, and other states only require notices on one project type or another. Understandibly, it’s hard to keep up with these notice and lien requirements. Unfortunately, however, those difficulties do not excuse noncompliance.

Florida is a notice state regardless of whether working on a state or private project. If you’re not in “privity” with the prime contractor (i.e. you contracted with a subcontractor), you must deliver a written preliminary notice to the prime contractor within 45 days of first furnishing labor and/or materials to the project.

This notice must be served to the prime contractor and surety pursuant to the requirements of F.S. §713.18, which allows for service by actual delivery to the person, by registered or certified mail, or by overnight or second-day delivery.

Part III: Send Your Bond Claim / Notice of NonPayment

If unpaid on the state construction project, those who are not in “privity” of contract with the prime contractor (i.e. you contracted with a subcontractor) must serve a written notice of nonpayment to the prime contractor and its surety. This notice can only be served within a specific window of time: It cannot be served any earlier than 45 days after first furnishing labor and/or materials to the project, and it cannot be served any later than 90 days after the last furnishing of labor and/or materials to the project.

Part IV: File Lawsuit To Enforce Claim

After the “notice of nonpayment” is properly served, if this doesn’t produce payment, the claimant must proceed to bring an action to enforce the claim. This action must be instituted against the contractor or the surety within 1 year of the last furnishing of materials or labor to the project.

The claimant has just a bit more time to bring the legal action for retainage payments due to it (although the claim for retainage must be included in the notice of non-payment, as this notice must segregate how much of the claimed amount is retainage). The action to recover retainage must be brought within 120 days from the happening of a certain condition, such as the public entity has paid out retainage, the work is completed and the prime has sent its request for final payment, 160 days has passed since substantial completion, etc.

Got a Public Contract?: Be Sure to Preserve Your Rights to Payment

Douglas Reiser — Tue, 15 Dec 2009 00:48:41 +0000

Over the past two years, the construction industry has seen a boom in public works. This is due to lower construction costs, influx of federal stimulus funds and lower financing rates for local governments.

The result has meant tons of public work for contractors, who benefit both from Davis-Bacon wages and bonded work, which virtually ensures payment!

Zlien has taken the time to ensure that its clients know the basics of filing and preserving lien rights on the public job. A recent article describes your rights under the Miller Act, a federal series of laws which govern contracts for construction over the amount of $100,000.00.

But, did you also know that each state has what is called a “Little Miller Act.” These collections of laws mirror the purpose and structure of the Miller Act, namely providing rules for payment, security and claims on the public project.

For instance, did you know that every state or locally managed construction contract issued in Louisiana for a total of no less than $100,000.00, requires a performance and payment bond and demands that you file a sworn statement of your unpaid claim within 45 days of completion? (See La. R.S. 38:2241, et seq.) We’ve have reported on this before.

How about the great state of Washington (our home), which requires that a contractor provide 60 day notice of its right to a lien against a public contract’s retainage? (RCW 60.28, et seq.) Failing to timely file could result in forfeiture to timely payment, and your right to proceed in an action against the contractor’s bond.

Its important that contractors understand that it takes more than simple contractual compliance to ensure payment. Having a qualified lien management company on hand makes it all that much easier to feel secured on the jobsite!

Zlien’s $395 flat fee services includes tracking down and obtaining copies of the prime contractor’s bond, noticing the surety and prime contractor, and filing with the appropriate state or federal agency, your claim. Remember that our services also include all mailing and delivery confirmation.

Also, remember that in many cases, suppliers, second-tier subcontractors, and equipment lessors, may be required to issue preliminary notices of the materials they sell or lease, or the work that they will perform on a public project. Zlien’s $35 flat fee notices can save you!