Bond or Lien Claim-Private Work

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Note: This information is limited in scope and applies only to this document. Please see the general information, all forms memo, and the general information memo for this type of document, for additional information.

Description: Claim of Lien (Construction).

Scope: State of Florida, Private Works.

Important: Service by a certain date in Florida means service by that date, not in the mail to be served as with some states. If the mail was delayed (not refused or ignored) that is an absolute defense to a lien or bond claim.

Important: If the owner has required the prime contractor to provide a payment bond, your rights against the bond a resubstituted for lien rights and a preliminary notice is not necessary. See Payment Bond, below.

Time Cosntraints: Unless job is bonded, you must have served the required parties with a Preliminary Notice-Private Works, within the statutory time frames or you cannot file a lien claim. (see Florida Preliminary Notice, Private Works, memo for more information). Other time constraints depend on the document to be filed:

Claim of Lien: You must file your Claim of Lien with the county recorder within 90 days, inclusive, after the last furnishing of labor, materials or service. Once filed, you must serve a copy of the Claim of Lien upon the owner within 15 days of filing.

Stop Notice For Non-Payment on Private Project: The Stop Notice For Non-Payment must be served upon the contractor and lender (also recommend the owner, see below) within 90 days, inclusive, of the date when the payment is due with further notice required for each subsequent shipment from the date when the payment is due for those subsequent shipment (see 'Important', below).

Payment Bond Claims: If the job has been fully bonded, your recovery must be against the bond (F.S. 713.23). In this case, the Notice of Non-Payment on Private Project must be served upon the contractor and surety within 45 days of your first furnishing of labor or materials, followed by the filing and serving of the Claim of Lien before 90 days have expired, as stated above.

Information as to the Bond may be obtained through the owner, or the county recorder's office- a copy of the Payment Bond must be attached to the Notice of Commencement at or before the time it is recorded in the public records in the county where the project is located.

Perfection: Claim of Lien and Notice of Non-Payment: To perfect your Mechanic's Lien, you must file suit against the relevant parties to foreclose the lien and enforce the bond claim within 1 year of the last furnishing of labor, materials or services.

An additional remedy at law is to use the trust fund concept of Florida Mechanic's lien law. Failure to pay "undisputed obligations" within 30 days from the date the labor, services or materials were furnished may allow the creditor to file an additional action against the debtor for defaulting on the contract. The advantage of such an action is that it is an expedited (that is, fairly fast) process and can be taken against all the parties involved. Again, talk with your attorney.

Sworn Statement of Account: An owner or contractor on a bonded job may serve a request for a Sworn Statement of Account upon you. This Sworn Statement of Account must be delivered to the demanding parties within 30 days or your lien and bond claim will become null and void.

The usual remedy is to file to enforce all claims in one suit (see below, Procedures). In any case, we strongly recommend that your attornye hanlde the enforcement action sto perfect you lien claims.

Information Request: Program information and information for Exhibits A-D, any additional costs as to legal fees, court costs and interest charges (don't pass these up. Estimate if necessary. In the case of Stop Notices and Bond Claims, the lenders or sureties will reserve ONLY the amount for which you make claim), and the county of the state where the recording will be made.

Form Types: Claim of Lien (Mechanics), Exhibit's A-D, if needed, Stop Notice For Non-Payment on Private Project and Notice of Non-Payment, and Recorder's Letter.

Procedures: Within the statutory time limits, prepare your documents using the required information. While you can file your mechanic's lien immediately, if there is a lender or surety, serve by mail copies of the Notice of Stop Non-Payment on Private Project on the owners, general contractors and lenders and the Notice of Nonpayment on the sureties first. Often this is enough to get immediate payment. If not, file your Claim of Lien and serve within 15 days of filing upon the owners and general contractors (your customer is optional). At this point you are ready to file suit to enforce all of your claims in one action.

Important: If you are a material supplier or sub-contractor you must serve a Notice of Non-Payment on the contractor and surety within 90 days of the date a payment is due to the lien or under a contract. Therefore, if your bill is due within 30 days of shipment, within 120 days you must file your bond claim. This Notice of Non-Payment must be sent not only for the original shipment but for each subsequent shipment within 90 days of when a payment is due. We personally recommend that you cease shipments at some point after the first non-payment and make claim for everything due to you or face a paperwork nigh®are.

Withholding retainage of 10% or less does not fall under the category of a non-payment that requires the service of a notice unless the retainage itself is due and payable by the terms of the contract.

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