Florida Construction Lien Law: Notice of Commencement and Releases

Understanding the Notice of Commencement

Florida law requires most property owners to record a notice of commencement before starting certain home improvement projects. This document gives constructive notice to potential lienors and helps establish priority for any claims of lien.

Under s. 713.13, F.S., an owner or the owner's authorized agent must record the notice in the clerk's office of the county where the property is located. The owner must also post a certified copy or a notarized statement confirming filing, along with a copy of the notice, at the job site.

The notice must include a sufficient description of the real property, a general description of the improvement, owner and fee simple titleholder information, contractor details, any lender or surety information, and an expiration date. The expiration date is typically one year after recording unless the contract specifies a longer period. The description of the real property must include the legal description and, if available, the street address and tax folio number. If a payment bond applies, a copy must be attached at recording. The notice does not create a lien itself but provides constructive notice of potential claims.

A notice of commencement is not required for every project. Exemptions apply to direct contracts of $2,500 or less and certain heating or air conditioning repair or replacement contracts under specific dollar thresholds. Public projects are also generally exempt.

The notice must be recorded before the first inspection when a building permit is involved. Permit-issuing authorities provide warnings and forms related to this requirement under s. 713.135, F.S.. The permit card must carry a warning about recording and posting the notice before the first inspection.

If the improvement does not begin within 90 days of recording, the notice becomes void. Payments made after expiration may be considered improper.

Practical checklist for preparing and recording a notice of commencement:

1. Gather the legal description, street address, and tax folio number of the property.
2. Prepare a general description of the planned improvement.
3. List the owner, fee simple titleholder if different, contractor, lender, and surety details.
4. Set the expiration date (one year or as specified in the contract).
5. Include any designated person for service of notices.
6. Attach any required payment bond copy.
7. Record at the county clerk's office and post the required copy or statement at the job site.
8. File a copy with the permit-issuing authority before the first inspection if the contract exceeds the applicable threshold.

Homeowners should review the exact statutory form requirements and confirm recording procedures with the local county clerk's office.

Notices to Owner from Subcontractors and Suppliers

Subcontractors and material suppliers who do not have a direct contract with the homeowner must serve a notice to owner to preserve lien rights. This step informs the owner that these parties are working on the project and expect payment.

Per s. 713.06, F.S., the notice must be served within 45 days after the lienor first furnishes labor, services, or materials, or before the owner's final payment to the contractor. The notice includes the lienor's name and address, property description, and nature of work or materials.

The statutory form includes a prominent warning that failure to ensure payment may result in a lien and the owner paying twice. The warning states: "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. UNDER FLORIDA LAW, YOUR FAILURE TO MAKE SURE THAT WE ARE PAID MAY RESULT IN A LIEN AGAINST YOUR PROPERTY AND YOUR PAYING TWICE. TO AVOID A LIEN AND PAYING TWICE, YOU MUST OBTAIN A WRITTEN RELEASE FROM US EVERY TIME YOU PAY YOUR CONTRACTOR." Homeowners should keep records of all notices received.

Laborers are exempt from the notice to owner requirement. The notice helps owners track who may have lien rights beyond the primary contractor. A materialman to a sub-subcontractor serves the notice on the subcontractor if known.

Practical checklist for handling notices to owner:

1. Maintain a project file and log every notice received with date, sender, and description of work or materials.
2. Verify the notice was served within the 45-day window or before final payment.
3. Cross-reference notices against the contractor's list of subcontractors and suppliers.
4. Request updates from the contractor on any new parties added to the project.
5. Confirm service on any additional designated recipients listed in the notice of commencement.

Why Collect Lien Releases Before Final Payment

Lien releases protect homeowners by confirming that specific parties have been paid and waive their right to file a lien for work or materials through a certain date. Collecting these documents before making payments reduces the chance of disputes.

s. 713.20, F.S. provides statutory forms for waiver and release of lien upon progress payment and upon final payment. These forms specify the amount paid, the date through which work is covered, and the property description. A right to claim a lien may not be waived in advance and only to the extent of labor, services, or materials furnished. The progress release form covers work through a specified date and does not cover retention or work after that date. The final release covers all work on the project.

Homeowners should request releases from the contractor and from every party who served a notice to owner. Releases should match the payment amount and cover the period of work billed. No one may require a different form from the statutory ones.

A checklist for payments:

1. Confirm all notices to owner received.
2. Request releases covering the exact work and materials in the invoice.
3. Verify the release date aligns with the payment period.
4. Check that the release matches the statutory language for progress or final payment.
5. Ensure the release identifies the correct property and parties.
6. Retain copies of all releases with payment records.

Owners may include contract language requiring the contractor to provide releases with each payment request. A lienor executing a release in exchange for a check may condition it on the check clearing.

The Risk of Paying Twice

Florida's construction lien law creates a risk that homeowners could pay the contractor in full yet still face liens from unpaid subcontractors or suppliers. This occurs when payments to the contractor do not reach the parties who actually performed the work.

The statutes include repeated warnings about this possibility. Improper payments after notice of commencement expiration or without required releases can leave the owner liable.

To reduce this risk, homeowners should verify that the contractor is licensed through official state resources and consider requiring final payment affidavits. The contractor's final payment affidavit lists any unpaid lienors who received notices to owner. Under s. 713.06, F.S., the contractor must provide this affidavit before final payment, stating whether all such lienors have been paid in full or listing any unpaid amounts and names.

Recording a notice of termination can also limit the period during which new liens may attach in some cases. Under s. 713.132, F.S., the owner may record a notice of termination after all lienors are paid in full. It must include the same information as the notice of commencement, reference the original recording, state a termination date at least 30 days after recording, confirm all lienors paid, and note service on lienors. The owner may rely on the contractor's affidavit in most cases.

Practical steps include maintaining a file of all project documents, serving requests for sworn statements of account when needed, and consulting the county clerk's office for recording information. Homeowners can request from the contractor a list of all subcontractors and suppliers via certified mail.

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This is general information based on Florida statutes and is not legal advice. Confirm current requirements with the Florida Department of Business and Professional Regulation or a qualified attorney, as details can change.