In order for a supplier of materials or a “materialman” to have a construction lien on a property, his product must either be specially fabricated or actually incorporated into the property. Specifically, Florida’s construction lien statute defines “furnish materials” to mean “to supply materials which are incorporated in the improvement including normal wastage in construction operations; or specially fabricated materials for incorporation in the improvement…” It does not include “any design work, submittals, or the like preliminary to actual fabrication of the materials; or supply materials used for the construction and not remaining in the improvement, subject to diminution by the salvage value of such materials; and includes supplying rental equipment, but does not include supplying handtools.” Fla. Stat. § 713.01(13).

I.  Delivery as Proof of Incorporation of Materials into the Project 

Because it can be impractical for a materialman to prove that the products he furnished to a subdivision project were actually incorporated into the project, Florida law dictates that a showing that the materials were delivered to the project site is prima facie evidence that the materials were, in fact, incorporated into the subdivision.” Fla. Stat. § 713.01(13). To be entitled to the benefit of this presumption, “evidence must be presented which establishes that materials were, in fact, delivered to project…” American Ins. Co. v. Coley Elec. Supply Co., Inc., 354 So. 2d 390 (Fla. 1st DCA 1978). The materialman bears the burden of proof of delivery or special fabrication before being entitled to the presumption.

II.  What Evidence is Sufficient for Delivery?

In Dublin Co. v. Brady Sales, Inc., 380 So. 2d 1095 (Fla. 5th DCA 1980), the Court held that testimony by the president of a material supplier was sufficient evidence for purposes of establishing delivery and taking advantage of the prima facie presumption of incorporation. However, in Beautyware Plumbing Supply Co. v. Columbiad Apartments, Inc., 215 So.2d 42, 44 (Fla. 4th DCA 1968), the Court held that proof that a materialman delivered product to the contractor, without a showing that the delivery occurred at the project site, was insufficient as a matter of law to establish a construction lien in favor of the materialman.

III.  Special Fabricators

Fabricators of custom and specially designed products are governed by a different rule when it comes to incporation. To the extent that a materialman can establish that the product he produced was specially fabricated for a particular project, the materialman can establish entitlement to a lien. This is true regardless of whether the materials were actually delivered to the job site. See Oolite Indus., Inc. v. Millman Const. Co., Inc., 501 So. 2d 655, 656 (Fla. Dist. Ct. App. 1987). In order for a product to be considered “specially fabricated” under Florida’s Construction Lien Law, the materials must be “materials which are ‘not generally suited for nor readily adaptable to use in’ a like improvement.” Surf Properties, Inc. v. Markowitz Brothers, Inc.75 So.2d 298, 302 (Fla.1954). In other words, the specially fabricated materials must have been designed for the particular project and not be appropriate for use in a similar project. To illustrate, in Stunkel v. Gazebo Landscaping Design, Inc., 660 So. 2d 623 (Fla. 1995), the Florida Supreme Court held that trees selected by homeowners for installation at their property by a landscaper were “specially fabricated materials.” Ultimately, as long as the parties intended the specially fabricated products to be incorporated into the improvement, the special fabricator can establish a lien regardless of delivery assuming the other requirements of the statute are met.

IV.  Alternative Approaches

It is also permissible for a witness to testify that he or she can identify the materialman’s product in the finished improvement. See Florida East Coast Properties, Inc. v. Coastal Const. Products, Inc., 553 So. 2d 705 (Fla. 3d DCA 1989). In this respect, it may be possible for a materialman to establish either through lay or expert testimony that his or her products were delivered to the job site.

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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: