Florida law governs who can enforce a construction lien. Under the construction lien statute, a contractor, a subcontractor, a sub-subcontractor, a material man who contracts with an owner, a contractor, subcontractor, or sub-subcontractor; a laborer, or a “professional lienor” are entitled to enforce a construction lien under the statute. Fla. Stat. § 713.01(18).

A valid license is necessary in order for a contractor, subcontractor, or sub-subcontractor to enforce a construction lien. Fla. Stat. § 713.02(7). However, there is no license requirement with regard to providers of material. In Architectural Complements, Inc. v. R.G. Brown Properties, Inc., 686 So. 2d 678 (Fla. 2d DCA 1996), the Court found that issues of material fact precluded a summary judgment in favor of a developer where a cabinet maker claimed to have acted as a materialman rather than a subcontractor. The court held that if the cabinet maker was found to be a materialman rather than a subcontractor, Fla. Stat. § 713.02(7) would not bar the cabinet maker’s construction lien.

In order to be properly licensed for purposes of imposing construction liens, a contractor, subcontractor, or sub-subcontractor must apply for a certificate of authority pursuant to Fla. Stat § 489.119(2). When a construction company loses its sole qualifier, it may not engage in contracting until another qualifying agent is employed unless the company has been granted a temporary certificate. Fla. Stat. § 489.119(3)(a). If a contractor engages in work after the time it has lost its sole qualifier and without a temporary certificate, it may be subject to disciplinary sanction by the DPBR. However, pursuant to Fla. Stat. § 489.128, in the event a contractor obtains or reinstates his or her license prior to the filing of a construction lien, the construction lien will be valid. See Michnal v. Palm Coast Development, 842 So. 2d 927 (Fla. 4th DCA 2003).

For certain segments of the construction industry, maintaining a valid license is a threshold requirement before filing a construction lien against an owner. For those businesses, to the extent that there is any doubt regarding the validity of a license, any doubt should be resolved prior to filing a construction lien. Moreover, even if a license has inadvertently lapsed during a project, such a deficiency can be cured so long as appropriate steps are taken to reinstate the license prior to the filing of the construction lien.

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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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