Florida construction lien law specifically addresses the situation where one performs services or furnishes materials for the purpose of making a site suitable for construction of an improvement. This typically occurs in the context of subdivisions. Under Fla. Stat. § 713.04, any lienor who, regardless of privity, performs services or furnishes material to real property for the purpose of making it suitable as the site for the construction of an improvement or improvements shall be entitled to a lien on the real property for any money that is owed to her or him for her or his services or materials furnished in accordance with her or his contract and the direct contract. The total amount of liens permitted shall not exceed the amount of the direct contract under which the lienor furnishes labor, materials, or services.

I.  Subdivision Improvements Specifically Covered by Fla. Stat. § 713.04

The subdivision improvement work covered by Fla. Stat. § 713.04 includes, but is not limited to, the following work:

  • grading, leveling, excavating, and filling of land, including the furnishing of fill soil;
  • grading and paving of streets, curbs, and sidewalks;
  • construction of ditches and other area drainage facilities;
  • laying of pipes and conduits for water, gas, electric, sewage, and drainage purposes; and
  • construction of canals;
  • the altering, repairing, and redoing of any of the above.

II.  Liens on Abutting Land

The statute provides specific rules related to public use areas in subdivisions. For instance, when “services or materials are placed on land dedicated to public use and are furnished under contract with the owner of the abutting land, the cost of the services and materials, if unpaid, may be the basis for a lien upon the abutting land.” Fla. Stat § 713.04. For land to be considered “abutting” is must be continuous. There can be no intervening land. See Davis Water & Waste Industries, Inc. v. Embry Development Corp., 603 So. 2d 1357 (Fla. 1st DCA 1992).

Moreover, when “services or materials are placed upon land under contract with the owner of the land who subsequently dedicates parts of the land to public use, the person furnishing the services or materials placed upon the dedicated land shall be entitled to a lien upon the land abutting the dedicated land for the unpaid cost of the services and materials placed upon the dedicated land.” In the case of improvements that “serve or benefit real property that is divided by the improvements,” the provider shall be entitled to “a lien upon each abutting part for the equitable part of the full amount due and owing to the provider.” Fla. Stat. § 713.04. If the part of the cost to be borne by each parcel of the land subject to the same lien is not specified in the contract, “it shall be prorated equitably among the parcels served or benefited.”

III.  Notice and Recording Requirements for Subdivision Lienors

A.  Claim of Lien

In order to be entitled to a construction lien, a provider of services or materials must record a lien within 90 days of the last work or furnishing of materials at the job site. See Aronson v. Keating, 386 So.2d 822 (Fla. 4th DCA 1980).The claim of lien must be served on the owner within 15 days of recording. Fla. Stat. 713.08(4)(c).

B.  Notice to Owner

Florida law does not require that a subdivision lienor serve a notice to owner regardless of privity. However, by electing to serve a notice to owner, the non-privity lienor obligates the owner to see that the lienor is paid to the extent that payments are made to the contractor. Fla. Stat. § 713.04(2).

C. Notice of Commencement

The legislature specifically precludes subdivision lienors from the requirement they record a notice of commencement. See Fla. Stat. § 713.04(1)(“[n]o notice of commencement shall be filed for liens under this section.”). This is primarily because a properly recorded claim of lien relates back to the date of a properly recorded notice of commencement. Therefore, institutional lenders would be remiss to make a mortgage loan to a developer where notices of commencement have already been recorded against the subdivision property because the construction lien would have priority over the lender’s mortgage due to the fact that it relates back to the notice of commencement. Therefore, this specific preclusion serves to allow developers to make preparations for improving property even when financing for the improvement has not yet been secured.

D.  Contractor’s Final Affidavit

The recent amendments to Fla. Stat. § 713.04 have made it clear that a contractor providing a subdivision improvement must comply with Fla. Stat. § 713.06(3)(d) by serving a contractor’s final affidavit in order to receive final payment. In the event that the owner makes a final payment without obtaining a the contractor’s final affidavit, the contractor has made an “improper payment.” In other words, such a payment would not serve to limit the owner’s liability when measured against the contract price pursuant to Fla. Stat. § 713.06.

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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. Below are some recent posts W has written on Florida Construction Lien Law: