A “contractor” is a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it. A “contractor” can also be one who takes over from a prior contractor as so defined in order to complete the entire remaining work under such a contract. The term “contractor” includes an architect, landscape architect, or engineer who improves real property pursuant to a design-build contract. Fla. Stat. § 713.01(8).

For example, a pool company was a “contractor” for purposes of Fla. Stat. § 713.01(8) where it contracted separately with the homeowners to construct a pool, spa, and deck. See Cox v. Reed’s Swimming Pools and Service, Inc., 756 So. 2d 141 (Fla. 2d DCA 2000). In Cox, the homeowners attempted to argue that the pool company was not a “contractor” but rather a “subcontractor” who contracted with their general contractor pursuant to Fla. Stat. § 713.01(8). However, the court found sufficient evidence of an independent contract with the property owners and allowed the pool company to enforce its lien amount for the full amount of the contract with the owner.

In some instances, a property owner may contract with a contractor for improvements while overseeing and or supervising other work on his or her property. In those instances, the owner’s supervision of other work does not alter a contractor’s status pursuant to Fla. Stat. § 713.01(8). As such, even where the owner provides supervision and oversight to a project, a contractor would have difficulty arguing for subcontractor status pursuant to the lien law. The distinction is important where the person or entity has failed to file a contractor’s affidavit; a requirement imposed on contractors but not subcontractors under Florida’s lien law. See Sowers v. Hoenstine, 417 So. 2d 1137 (Fla. 5th DCA 1982).

When a contractor complies with all relevant provisions of Florida’s construction lien law imposed on contractors, the contractor is entitled to a lien on the real property improved for any money owed to the contractor by the owner for labor, services, materials, and/or other unpaid items required by, or furnished in accordance with the contract between the owner and contractor. See Grant v. Wester, 679 So. 2d 1301 (Fla. 1st DCA 1996). The owner is also responsible for any unpaid finance charges due under the contract. See Fla. Stat. § 713.05.

Typically, in order to enforce construction lien rights, a contractor must have substantially completed the work set forth in the parties contract. See Langley v. Knowles, 958 So. 2d 1149 (Fla. 5th DCA 2007). The “substantial performance” doctrine provides that a contractor is entitled to a construction lien even if the work of the contract is substantially, but not completely, performed. However, a contractor may be entitled to enforce lien rights where the work is not substantially performed if performance has been excused or waived by the property owner. For example, where an owner wrongfully terminates a contract, even substantial performance is not a prerequisite in order to enforce lien rights under the contract. See Langley, 958 So. 2d at 1051.

Determining whether one is a contractor or something else under the lien law is an important first step in determining the statutory prerequisites a party may need to fulfill before enforcing a lien. The most important factor in determining contractor status is whether there is an enforceable contract with a property owner. An owner’s supervision, or role as his/her own general contractor is not indicative of a reduction to subcontractor status. Moreover, while substantial performance of the contract work is typically required before a contractor can enforce lien rights, substantial performance can be waived or excused.

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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 wmason@foxrothschild.com.

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