I Blew My Notice to Owner / Lien Deadline. Now What? - Florida Webinar

In this blog, presented by SunRay Construction Solutions and Alex Barthet, Principal, The Barthet Firm, we explain what you can do if you miss your lien deadlines in Florida. The discussion covers the basics of lien rules, exceptions that may apply, other bonds you can pursue, and additional ways to recover payment.

What Are Notice to Owner and Lien Rules?

In most construction cases in Florida, sending a Notice to Owner is required. This written document is prepared by the lienor to preserve lien rights and must be received within 45 days of your first work or delivery of materials to the project.

There is an important exception. If the Notice to Owner is provided to SunRay in time for it to be mailed by the 40th day, it is considered served regardless of when it is received. The Claim of Lien or Notice of Nonpayment Claim on Bond must be served within 90 days from your last work or delivery. This applies to both private and public projects.

When calculating deadlines, every calendar day counts, including weekends and holidays. If the 90th day falls on a Saturday or Sunday, the deadline moves to Monday. If that Monday is a federal holiday, the deadline extends to the next business day.

To enforce your lien, you must file a lawsuit within one year from the date the lien is recorded. For bond claims, the lawsuit must be filed within one year from your last day of furnishing labor or materials.

Key timing rules to remember:

• Notice to Owner to be received within 45 days of first work

• Claim of Lien or Notice of Nonpayment Claim on Bond within 90 days of last work

• Lawsuit within one year

• All deadlines are calculated using calendar days

Did You Really Miss the Deadline?

Many contractors and suppliers assume they’ve lost their rights simply because they missed a deadline. However, lien law includes several exceptions that can extend or eliminate these requirements. Before writing off a claim, it’s worth examining whether the deadline actually applied in your case.

Important exceptions include:

• Direct contract with the owner

• Direct contract with a bonded contractor

• No Notice of Nonpayment Claim on Bond required on certain public projects

• Lack of knowledge of a recorded bond

This is why you should never assume that you missed a deadline and lost your rights. It is always advisable to consult a board-certified construction lawyer to review your situation.

When You Don’t Need to Send a Notice to Owner

1. Direct Contract with the Owner

If you are hired directly by the property owner, you are not required to send a notice to owner. The purpose of the notice is to inform the owner of your involvement, which is unnecessary when they hired you directly. That said, many professionals still send notices as a best practice. Setting an internal threshold, such as sending notices for all projects above a certain value, can help avoid confusion.

2. Owner and Contractor Share a Common Identity

In some cases, the property owner and general contractor operate as the same entity, such as when a developer uses an in-house contractor. In these situations, the law treats them as one entity. Since the owner is already aware of your work through the contractor, a notice to owner is not required.

Notice Requirements on Bonded Projects

Direct Contract with a Bonded Contractor

If you have a direct contract with a bonded contractor, you are not required to send a notice to owner (or notice to contractor).

Public Projects Exception

On public bonded projects, if you have a direct contract with the contractor:

• You do not need to send a notice to owner

• You do not need to send a Claim on Bond.

• The only requirement is to file a lawsuit against the surety within one year of your last work

When Do Deadlines Actually Start?

On bonded projects, the 45-day notice period does not begin until you are aware, or should reasonably be aware, that the project is bonded. It is the contractor’s responsibility to properly disclose bond information, typically through:

• The Notice of Commencement

• Job site postings

If this information is not properly provided, the deadline may not start at all.

Real-World Example: When a Missed Deadline Isn’t Actually Missed

In one case involving a public bonded project, a subcontractor working directly for the bonded contractor believed they had lost their right to recover payment because they failed to send a required notice within 45 days. However, upon closer review, it was discovered that the contractor had failed to properly record the payment bond. As a result, the 45 day notice period never began to run.

The subcontractor was able to:

• Send the required notices

• File a lawsuit

• Recover the full amount owed, along with fees, costs, and interest

This example highlights why it’s important to verify the facts before assuming your rights are lost.

Is There Another Bond to Go After?

If you miss your deadlines, you may still have other recovery options. One important option is to look for another bond on the project.

General contractors sometimes require subcontractors to provide their own bonds. If you are further down the contract chain, such as a sub-subcontractor or a supplier, you may have rights against those bonds.

For example, on a bonded private project, if a subcontractor has a payment bond and you are working under them, you may be able to make a claim against that bond. This may still be an option even if your lien rights are no longer available.

These bonds are not usually recorded in public records, so you will need to request a copy. This can be done through email or a formal written request. In many cases, the general contractor can help you obtain it.

When dealing with these bonds, you must follow the specific requirements outlined in the bond itself. This may include providing notices or submitting certain documents.

To use this option effectively:

• Request a copy of the subcontractor bond

• Review all requirements carefully

• Follow the notice and documentation rules stated in the bond

Alternative Legal Options to Recover Payment

Even if lien or bond rights are unavailable, you still have other legal paths.

How to Sue for Breach of Contract?

Even if lien and bond rights are unavailable, you may still recover payment through a breach of contract claim. If you have an agreement in place, whether it is a written contract, proposal, quote, invoice, or purchase order, you can sue for nonpayment if the other party fails to pay.

For example, if a plumber completes work under a signed purchase order but fails to send required notices, they may still pursue a breach of contract claim against the contractor.

However, you must pay attention to pay when paid provisions. If your contract includes this clause and the contractor has not been paid by the owner, your ability to recover payment may be delayed or limited.

How to Sue for Unjust Enrichment?

Unjust enrichment applies when you provide a benefit and are not paid for it. In such cases, you can take legal action against the party that received the benefit. This claim is often used against parties higher up in the contract chain, such as the property owner.

However, there is an important limitation. If the owner has already paid the contractor for the work, the enrichment is not considered unjust, and your claim may not succeed. It is also important to note that legal fees are not recoverable in unjust enrichment claims.

Key Takeaways

• Always understand the basic notice and lien deadlines

• Do not assume you’ve lost your rights without checking for exceptions

• Verify whether bond requirements and disclosures were properly handled

• Explore additional bonds that may provide recovery options

• Consider legal alternatives like breach of contract and unjust enrichment

Final Thoughts

Lien law is complex, and small details can significantly impact your ability to recover payment. Even if it seems like you’ve missed a deadline, there may still be valid legal paths available. The key is to investigate thoroughly, understand the exceptions, and act quickly once you identify a potential opportunity to recover what you’re owed.

FAQs on Notice to Owner, Liens, and Payment Recovery

1. Can a lien still be valid if the contract wasn’t in writing?

Yes, a written contract is not required to enforce lien rights. Even a verbal agreement, handshake deal, or invoices can establish a valid contract. If you follow lien law requirements, such as sending notices, recording the lien, and filing a suit within deadlines, your lien can still be valid.

2. If a bond was never recorded, does it extend the deadlines?

Yes, certain deadlines like sending a notice to owner or Claim on Bond may be extended if the bond was not properly recorded, since you may not have known the project was bonded. However, the deadline to file a lawsuit (typically one year from last work) does not change.

3. Does a late Notice of Commencement affect lien deadlines?

No, lien deadlines generally remain unchanged even if the Notice of Commencement is recorded late. The only exception is that you cannot be penalized for not sending notices to parties listed in a document that wasn’t recorded on time.

4. If a contractor hasn’t been paid by the owner, do they still have to pay me?

It depends on your contract. If there is no valid “pay when paid” clause, the contractor is still legally obligated to pay you, regardless of whether they received payment from the owner. If they fail to pay, you may have the right to take legal action.

5. What can I do if the property is being sold but I haven’t been paid?

You should consider recording a lien immediately. A lien creates a title issue that can delay or block the property sale, increasing pressure on the parties to resolve payment. This is one of the most effective ways to protect your rights in such situations.