Section 713.06(2)(a) of Florida’s Mechanic’s Lien statute sets forth certain requirements for what is commonly referred to as a Notice to Owner. A Notice to Owner is a document that must be prepared by the party seeking to perfect a mechanic’s lien (the “lienor”). The purpose of the Notice of Owner is to make the owner of property aware that a lienor is providing materials or services on the job. This allows the owner to protect him or herself from paying the contractor when those funds should instead be paid to a lienor who provided work, labor or materials.
Under the statute, in order for a lienor to perfect a mechanic’s lien and record a claim of lien, the lienor must first serve a Notice to Owner on the property owner. The Notice must provide the lienor’s name and address, “ a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished.” Fla. Stat. 713.06(a)(2). The Notice to Owner must be served either before the lienor commences work or no later than 45 days after commencement. Id. Failure to serve a Notice to Owner in a timely manner is a complete defense to enforcement of a mechanic’s lien by any person. Id. Finally, even though a party files a Notice to Owner, the party must still record the claim of lien. Id.
The decision of Trowbridge, Inc. v. Hathaway, 226 So.2d 35 (Fla. 1st DCA 1969) illustrates the importance of timely filing a Notice to Owner. In Trowbridge, a subcontractor had an agreement with a pool contractor to provide gunite used in the construction of a pool. The subcontractor was not paid for its services and brought an action to enforce a mechanic’s lien against the owners. The lower court entered judgment for the owner, finding that the subcontractor failed to provide notice under Fla. Stat. 84.061(2) (the predecessor to Florida’s current mechanic’s lien statute). The subcontractor mailed the Notice to Owner on the 45th day after commencing work, however, the owner did not receive the Notice until the 46th day. Id. at 36.
On appeal, the First District noted that the purpose of the Notice to Owner requirement is to “impound money that would otherwise be paid to the contractor.” Id., citing Richard Store Company v. Florida Bridge & Iron, Inc., 77 So.2d 632 (Fla. 1954). The Notice to Owner requirement has been held to be an “absolute prerequisite to the creation of a statutory lien.” Trowbridge, 226 So.2d at 36, citing Tarlow v. Helmholtz, 198 So.2d 109 (Fla. 2nd DCA 1967). Because the Notice of Owner is the first step required of a party seeking to perfect its lien, the Trowbridge court found that the trial court did not commit reversible error in requiring strict compliance with the statute’s 45 day notice provisions. Id.