Oh $h!#, I Blew My Lien Deadline. Now What? - Florida Webinar

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Understanding Construction Notice and Lien Deadlines

Construction lien laws are designed to balance the rights of property owners with those of contractors and suppliers. These laws establish strict deadlines, but they also contain built-in flexibility depending on the contractual relationships involved.

On most private construction projects, a Notice to Owner must be served within 45 calendar days from the first furnishing of labor, services, or materials to the job site. This notice is intended to alert the owner that parties other than the general contractor are contributing to the project and may have lien rights.

It is critical to understand that the notice must be received by the owner and contractor by the deadline. Mailing the notice close to the cutoff date, especially via certified mail, often results in late delivery and an invalid notice. When the 45th day falls on a weekend or legal holiday, the deadline may shift to the next business day, but no additional grace period applies beyond that.

The 90-Day Deadline and What Counts as “Last Work”

The next major deadline is the 90-day requirement to serve a Notice of Non-Payment and/or record a Claim of Lien. This deadline is calculated from the last date labor or materials were furnished to the project.

A common mistake is assuming that punch-list work, corrective work, or warranty repairs extend the deadline. In most cases, they do not. Only base contract work or approved change orders qualify as “last work” for lien purposes. Misunderstanding this distinction is one of the most frequent reasons lien rights are unintentionally lost.

Once a lien is recorded, it does not last indefinitely. A lawsuit to foreclose on the lien must be filed within one year from the date of recording. If that deadline is missed, the lien automatically expires and cannot be revived.

How Bond Claims Differ from Lien Claims

Bond claims operate under a separate legal framework and are often misunderstood. A payment bond is a contractual guarantee that subcontractors and suppliers will be paid, even if the property itself cannot be liened.

Unlike liens, bond claims are enforced through lawsuits that must generally be filed within one year from the claimant’s last furnishing of labor or materials. This deadline is independent of when notices are sent. Confusing lien enforcement deadlines with bond enforcement deadlines can lead to unnecessary loss of rights.

When a Notice to Owner Is Not Required

One of the most overlooked aspects of lien law is that a Notice to Owner is not always required.

When a contractor or supplier has a direct contract with the property owner, the law does not require a Notice to Owner. Although sending notices as a standard internal process is often recommended, the absence of a notice in this scenario does not invalidate lien rights.

Another critical exception applies when the owner and general contractor share a common identity. This may occur when they share officers, directors, business addresses, or operational control. When such a relationship exists, the law may treat them as a single entity, effectively eliminating the notice requirement. In these cases, what appears to be a missed deadline is often a notice that was never legally required.

Bonded Projects and Special Deadline Rules

Bonded projects, particularly public projects, follow different rules that frequently surprise contractors and suppliers.

On public construction projects, subcontractors with a direct contract to a bonded contractor are typically not required to serve a Notice to Owner or a Notice of Non-Payment. Their primary obligation is to file a lawsuit against the contractor and the surety within one year from their last work on the project.

Even on private projects, contractors with a direct contract to a bonded party may be exempt from certain notice requirements. However, suppliers and sub-subcontractors may still be required to send notices depending on their contractual tier.

When Bond Deadlines Do Not Start Running

In some cases, notice and bond deadlines do not begin at all.

If a contractor fails to properly record a payment bond in the public records, parties working on the project may lack actual or constructive knowledge that a bond exists. When this occurs, statutory notice deadlines may not start running until the bond is properly disclosed. This technical but powerful exception has preserved payment rights in situations where claimants believed all deadlines had passed.

Failing to investigate whether a bond was properly recorded can result in prematurely abandoning valid claims.

Exploring Subcontractor Payment Bonds

Payment rights are not always limited to the general contractor’s bond. On larger or higher-risk projects, subcontractors are increasingly required to provide their own payment bonds.

These subcontractor bonds are not recorded in public records, making them difficult to discover without direct inquiry. General contractors often provide copies upon request, as doing so redirects claims away from them.

Once a subcontractor bond is obtained, it must be reviewed carefully. Each bond is a contract with its own claim procedures. Some require formal notice, others require documentation, and some impose minimal requirements. Failing to comply precisely with the bond’s terms can jeopardize recovery.

Breach of Contract as an Alternative Remedy

When lien and bond options are unavailable, breach of contract claims often become the primary path to recovery.

A written contract is not strictly required. Oral agreements, proposals, estimates, invoices, payment applications, and correspondence can all serve as evidence of a contractual relationship. However, contractors must pay close attention to pay-when-paid clauses, which are generally enforceable in Florida and can significantly limit recovery if lien rights are lost.

Because these provisions contain narrow exceptions, legal review is often necessary to determine whether they are enforceable in a particular situation.

Unjust Enrichment Claims Explained

Unjust enrichment is another legal theory that may apply when no direct contract exists. This claim is based on two elements: a benefit was conferred, and it would be unjust for the recipient to retain that benefit without payment.

Unjust enrichment claims are commonly asserted against property owners when contractors or suppliers remain unpaid. However, these claims typically fail if the owner has already paid the general contractor for the work, even if the money never reached the claimant. In such cases, enrichment is not considered unjust from the owner’s perspective.

Why Missed Deadlines Should Not Be the End of the Conversation

Construction lien law is highly technical, fact-specific, and filled with exceptions. Deadlines matter, but they are only one part of a much larger legal framework.

Before assuming that payment rights are lost, it is essential to evaluate whether notices were actually required, confirm whether bonds exist and were properly recorded, and explore alternative legal claims that may still be available. A thorough analysis often reveals recovery options that are not immediately obvious.

Final Takeaway

Missing a notice or lien deadline does not automatically mean there is no way to get paid. With the right understanding of lien law exceptions, bond claims, and alternative remedies, contractors and suppliers may still have enforceable rights long after a deadline appears to have passed.

Careful review and informed action can make the difference between writing off a loss and successfully recovering payment.

Common Questions Contractors Ask

What happens if the property is sold to a new owner and I have not been paid?

The first question to ask is whether you have recorded a valid lien on the property. If a lien exists, it does not make a sale impossible, but it does significantly complicate the transaction. Most buyers, lenders, and title companies will require the lien to be resolved before closing, which gives you leverage to get paid.

If you no longer have lien rights or the lien period has expired, the sale itself usually cannot be stopped. However, this does not mean you are without legal remedies. In that situation, your primary option is to pursue a breach of contract claim against the party that hired you. If you were hired directly by the owner, you would pursue the owner. While a lien is the strongest tool to affect the sale, payment rights may still exist even without one.

On a private job, if the bond was never recorded or mentioned, and we discover it late, do the deadlines start when we receive the bond?

Yes, generally they do. On a private commercial project, if a payment bond was not recorded in public records, not attached to the Notice of Commencement, and not referenced in any way that would give you notice of its existence, the statutory deadlines typically do not begin to run until you have actual or constructive knowledge of the bond.

Ideally, on a private job you would still follow all lien rules as if the project were not bonded. That means serving a timely Notice to Owner and recording a Claim of Lien if payment issues arise. If you later discover that a bond exists, the recommended approach is to immediately send an updated Notice to Owner identifying the bonding company and, if payment is still owed, promptly serve a Notice of Non-Payment. In many cases, the deadlines are extended because the bond was never properly disclosed.

What if I filed a Notice to Owner at the beginning of the job and it later expired?

A Notice to Owner does not expire. Often, this question actually refers to the Notice of Commencement.

A Notice of Commencement is recorded by the owner and includes an expiration date. If no date is specified, it typically expires one year from recording, though the owner can choose a shorter or longer duration. If the Notice of Commencement expires while work is still ongoing, lien rights are not lost.

The key difference is timing priority. If a lien is recorded while the Notice of Commencement is still active, the lien “relates back” to the date and time the Notice of Commencement was recorded. If the Notice of Commencement has expired, the lien is effective only as of the date it is recorded. This affects lien priority but not the existence of lien rights themselves.

A Notice to Owner only needs to be re-served if the Notice of Commencement is formally terminated and a new one is recorded, or if a final release was issued and work later resumed.

If a general contractor files bankruptcy mid-project and a new contractor takes over, what happens to my contract and notices?

This situation depends on how the transition is handled. Properly, the existing Notice of Commencement should be terminated, and the owner should record a new Notice of Commencement identifying the new general contractor. Once you receive notice of a new Notice of Commencement, you should serve a new Notice to Owner.

From a contract standpoint, your original contract does not automatically transfer to the new contractor. Unless you receive a formal assignment of your subcontract, your contract remains with the original contractor that filed bankruptcy. In most cases, you will need either a written assignment approved by the owner or a brand-new contract with the replacement contractor.

When work resumes under the new contractor, it is best to treat it as a new job for notice purposes and send a new Notice to Owner within 45 days of starting work for the new contractor.

What are my rights if a homeowner gives me a check and then stops payment?

When a homeowner issues a check and later stops payment, special statutory remedies may apply. In many cases, a formal demand letter can be sent requiring the homeowner to make the check good within a specified time period, often 30 days.

If the homeowner fails to do so, they may be liable not only for the original amount of the check, but also for additional damages, which can include treble damages (up to three times the check amount), along with legal fees and costs. Stopping payment on a check can also carry potential criminal implications, depending on the circumstances, and may be reportable to the appropriate authorities.

Because these claims can escalate quickly, prompt legal guidance is recommended when a stop payment occurs.