Generally, an owner or an owner’s agent is required to record a notice of commencement in the clerk’s office and post either a certified copy of the recorded notice of commencement or a notarized statement that the notice of commencement has been filed for recording along with a copy thereof. Fla. Stat. § 713.13(1)(a). The notice of commencement must contain the following information:
1. A description sufficient for identification of the real property to be improved. The description should include the legal description of the property and also should include the street address and tax folio number of the property if available or, if there is no street address available, such additional information as will describe the physical location of the real property to be improved.
2. A general description of the improvement.
3. The name and address of the owner, the owner’s interest in the site of the improvement, and the name and address of the fee simple titleholder, if other than such owner. A lessee who contracts for the improvements is an owner as defined under s. 713.01(23) and must be listed as the owner together with a statement that the ownership interest is a leasehold interest.
4. The name and address of the contractor.
5. The name and address of the surety on the payment bond under s. 713.23, if any, and the amount of such bond.
6. The name and address of any person making a loan for the construction of the improvements.
7. The name and address within the state of a person other than himself or herself who may be designated by the owner as the person upon whom notices or other documents may be served under this part; and service upon the person so designated constitutes service upon the owner.
The Fourth District discussed the purpose of the Notice of Commencement in a 1999 decision. As the court explained:
Though the Notice of Commencement was originally required to trigger a commencement date from which to measure time limitations under the Mechanic’s Lien Law, the information contained in the Notice of Commencement provides all the details necessary to complete a Notice to Owner. Indeed, Section 713.13(1)(a), Florida Statutes, requires with Notice of Commencement information including the name and address of the owner and contractor. Thus, the legislature contemplated that the Notice of Commencement would provide the lienor with the current names and addresses of the owner and contractor, so that the lienor could properly mail the Notice to Owner. If no Notice of Commencement was ever posted or recorded by the owner as mandated by the statute, a lienor may have difficulty obtaining the names and addresses of the owners and contractor.
Sasso Air Conditioning, Inc., v. United Companies Lending Corporation, 742 So.2d 468, 470 (Fla. 4thDCA 1999), citing Symons Corp. v. Tartan-Lavers Delray Beach, Inc., 456 So.2d 1254, 1259 (Fla. 4thDCA 1984). The Notice of Commencement signals the beginning of a construction project. Gulfside Properties Corp. v. Chapman Corp., 737 So.2d 604, 607 (1stDCA 1999). Under Fla. Stat. § 713.01(5), the “commencement of the improvement” is defined as “the time of filing for record of the notice of commencement provided in s. 713.13.” The key function of the Notice of Commencement is to provide the lienor and other third parties with the information they need to prepare necessary notices and related documents under Florida’s mechanic’s lien statutes. Gulfside Properties, 737 So.2d at 607.
The failure by a property owner to file a Notice of Commencement does not relieve a contractor or supplier from satisfying the mechanic’s lien statute’s notice requirements. Professional Plastering & Stucco, Inc., v. Bridgeport-Strasberg Joint Venture, et al., 940 So.2d 444, 449 (Fla. 5th DCA 2006), citing Mursten Constr. Co. v. C.E.S. Indus., Inc., 588 So.2d 1061 (Fla. 3d DCA 1991). For instance, where a supplier failed to serve written notice of nonpayment on the contractor, the supplier’s failure to adhere to the requirements of the statute prevented its recovery under a construction bond despite the fact that the owner failed to file a notice of commencement. Murston, 588 So. 2d at 1062-63.
W Mason is an associate with the law firm Fox Rothschild LLP. W practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. W focuses his practice on commercial litigation throughout Florida, with an emphasis on construction litigation. You can reach W at (561) 804-4432 or firstname.lastname@example.org. Below are some recent posts W has written on Florida Construction Lien Law:
- Florida Construction Liens: Insurance Proceeds and Construction Liens
- Florida Construction Liens: Construction Liens on Condominium Properties
- Florida Construction Liens: Construction Liens on Leased Property
- Florida Construction Liens: Property Subject To a Construction Lien
- Florida Construction Liens: Liens for Architects, Engineers, Design Professionals, and Surveyors