Generally speaking, when working on a private construction project in Florida, you must deliver a “Notice To Owner” to preserve your mechanics lien rights to protect against non-payment. This notice identifies your company, who hired you, the work and/or materials being provided, and a description of the job.
To preserve your mechanics lien rights in Florida, it’s important that you properly prepare this written notice, timely deliver it, and maintain proof of delivery. This post — written for contractors and suppliers — provides a step-by-step guide to the Florida Notice to Owner requirement, including whether you need to send it (i.e. the rules & exceptions), how to prepare your NTO form, how to send the NTO, and what best practices to follow.
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What is a Florida Notice to Owner?
Many states have preliminary notice requirements, and they go by various names. In the state of Florida, the preliminary notice is referred to as the “Notice to Owner” or “NTO.” Sending a Florida NTO is required by law (FL Statute 713.06) in order to maintain your lien rights on a construction project.
All project stakeholders will find our Florida Notice to Owner Rules, Resources & FAQs helpful to better understand the Florida construction lien laws and notice requirements.
This post is specifically written for contractors and suppliers who are interested in protecting their lien rights on a Florida job, and is a step-by-step guide to preparing and sending the NTO.
Step 1: Determine whether you need to send a Florida NTO
If you’re a subcontractor or supplier on a Florida construction project, you may have heard about the Florida notice requirements, and may be wondering whether you should or need to follow it. As we’ll explore further in the post, the answer to this question is almost always yes.
Mostly, this is because you’re likely legally required to send the notice. However, even if you’re exempt or otherwise not required, sending the notice is a good idea because it’s a best practice to help you get paid faster, and it’s a practice owners, lenders, and general contractors usually appreciate.
Who needs to send a Notice to Owner
Here’s the short answer: In Florida, all contractors, subcontractors, material suppliers, and vendors who did not contract directly with the property owner must send a Notice to Owner.
Long answer: Any party (except wage laborers and design professionals) who are not in direct contractual privity with the property owner is required to timely serve a Notice to Owner. Generally speaking, this includes subcontractors, sub-subcontractors, and materialmen on the job, and excludes general contractors.
It is worth a note here to distinguish the “Notice to Owner” from other types of notices and documents exchanged by the parties on a Florida construction job. In fact, it’s really common for people to get all of the different types of notices confused, as we explored in our guide to all notices sent in the construction industry.
On Florida jobs specifically, for example, property owners must file a Florida Notice of Commencement, and general contractors have an unique notice requirement, if an owner specifically requests it, to provide a list of all of the job’s subcontractors and suppliers. These two “notices” — the “notice of commencement” and the “sworn statement of subs/suppliers” — are important parts of the Florida mechanics lien rules, but are different than the NTO.
Finally, keep in mind that this NTO requirement (and this post) does not apply to pure laborers (i.e. employees of a contractor or subcontractor) and design professionals (i.e. architects), who are not required to provide an NTO on Florida construction projects.
3 exceptions to Florida’s Notice to Owner requirement
Rules always have exceptions, and folks are always looking for these exceptions. After all, if an exception to the Notice to Owner applies, it may save your company money in having to comply with the requirement. It may also save your company’s lien rights if you forgot to send the notice. Exceptions to the NTO rules in Florida are pretty hard to come by, but here are three of them.
Exception 1: You contract directly with the owner (or some variation thereof)
The primary exception to Florida’s Notice to Owner requirement is when you contract directly with the property owner.
This exception appears obvious at first blush, but it’s more complicated than that. Contracting with the owner includes a direct contract with:
- The actual property owner,
- The owner’s “agent,” or
- A general contractor who shares a “corporate identity” with the owner.
When dealing with an apartment, condo, or other development, there are often middlemen between parties who consider themselves “general contractors” and owners. On development projects, it’s not uncommon for the owners of the property to hire a developer, and for that developer to then hire a general contractor to oversee the project. On condos and apartments, apartment associations or agents are often in charge of hiring a party to perform construction or repair work.
Thus, when a general contractor has contracted with one of these middlemen, that GC may need to send an NTO to preserve lien rights.
It’s hard to rely on this exception because it will all boil down to a judge’s later determination. So the best practice is to always send preliminary notice, no matter what!
Exception 2: Laborers, professionals & site workers
Laborers are the most protected class of mechanics lien claimants across the nation, and it’s no different in Florida, where they are excused from delivering an NTO. To qualify as a laborer, you must be only performing labor at the site, and not furnishing materials.
Professionals are also excused from sending a Notice to Owner. These “professionals” include architects, engineers, land surveyors, interior designers, mappers and landscape architects.
Finally, Site Workers type of work gets a pass on the Florida Notice to Owner too. This is work done to the job site itself to make the site suitable for building, which includes site work, excavating, and similar services.
Exception 3: If the work is for “subdivision improvements”
A Notice to Owner is not required for liens that qualify as “subdivision improvements” under the Florida mechanics lien statute. Subdivision improvements refer to lienors who perform services or furnish material to real property for the purpose of making it suitable as the site for the construction of an improvement or improvements.
That includes, but is not limited to:
“grading, leveling, excavating, and filling of land, including the furnishing of fill soil; the grading and paving of streets, curbs, and sidewalks; the construction of ditches and other area drainage facilities; the laying of pipes and conduits for water, gas, electric, sewage, and drainage purposes; and the construction of canals and shall also include the altering, repairing, and redoing of all these things.”
Of course, the best idea is to play it safe and send an NTO anyway.
Not an exception: Notice of Commencement filing errors
Florida is one of a handful of states that requires property owners to file a Notice of Commencement. In Florida, even if the NOC is not filed, timely filed, or filed incorrectly, subs & suppliers still have the same notice requirement: They must send it!
Step 2: Prepare the Florida Notice To Owner form
In Florida Notice to Owner is a pretty regulated document. According to the law, “the notice may be in substantially the following form and must include the information and the warning contained in the following form.”
Since the statute uses the word “may” about the specific formatting of the document, and “must” with respect to the content, contractors and suppliers can be liberal with the formatting of the form, but must be sure that all of the required information is contained within it.
What information must be provided in the Florida NTO?
Here is a quick list of all the elements that must be included in the Florida NTO:
- Property owner(s) name & address
- Owner designee name & address (if any)
- General contractor name & address
- A “general description” of the materials and/or work being provided to the job
- Property description where the job is located
- Hiring party’s name & address
- Identification of everyone who is getting copies of the notice
- The statutory “warning” language, below provided
- Lienor’s name & address (that’s you, the sender)
- Your signature (or your representative’s signature), and the date of signature
Required warning language
Here is the warning language that must appear somewhere in your Notice to Owner form:
Florida law prescribes the serving of this notice and restricts your right to make payments under your contract in accordance with Section 713.06, Florida Statutes.
IMPORTANT INFORMATION FOR YOUR PROTECTION
Under Florida’s laws, those who work on your property or provide materials and are not paid have a right to enforce their claim for payment against your property. This claim is known as a construction lien. If your contractor fails to pay subcontractors or material suppliers or neglects to make other legally required payments, the people who are owed money may look to your property for payment, EVEN IF YOU HAVE PAID YOUR CONTRACTOR IN FULL.
– RECOGNIZE that this Notice to Owner may result in a lien against your property unless all those supplying a Notice to Owner have been paid.
– LEARN more about the Construction Lien Law, Chapter 713, Part I, Florida Statutes, and the meaning of this notice by contacting an attorney or the Florida Department of Business and Professional Regulation.
WARNING! FLORIDA’S CONSTRUCTION LIEN LAW ALLOWS SOME UNPAID CONTRACTORS, SUBCONTRACTORS, AND MATERIAL SUPPLIERS TO FILE LIENS AGAINST YOUR PROPERTY EVEN IF YOU HAVE MADE PAYMENT IN FULL. UNDER FLORIDA LAW, YOUR FAILURE TO MAKE SURE THAT WE ARE PAID MAY RESULT IN A LIEN AGAINST YOUR PROPERTY AND YOUR PAYING TWICE. TO AVOID A LIEN AND PAYING TWICE, YOU MUST OBTAIN A WRITTEN RELEASE FROM US EVERY TIME YOU PAY YOUR CONTRACTOR. NOTICE TO OWNER
The previous section provides you with all the little things that you need to include in your NTO. But, don’t stress about that. There’s absolutely no reason for you to go off and re-invent this wheel. There are Florida NTO forms all over the place and you can just use one of those.
But be careful with form houses on the Internet.
There are a ton of “form houses” out there on the Internet that make money by driving traffic to their form pages. You need to be careful with these.
It’s common to find that these companies just take a form for one state and duplicate them across all the other states. Or, worse, they scrape forms from wherever they can be found on the internet, or automatically generate the forms based on some generic criteria.
You need to look at the authority of the site where you’re downloading your lien, notice, and lien waiver forms! This is super important.
How to research the Florida job to find the owner (or owner designee), GC, lender, and others
You have the form. You know what needs to be in it. But, you may be thinking…where do I get all of that information?
For example, do you know whether the project has an “owner designee” or not? Do you know who the general contractor for the project even is? Can you sufficiently describe the job’s property location?
Doing research on the job and property information is important to get your notices to the owner correctly. And if you mess up with this information it will likely make your NTO invalid.
We explore the importance of doing job research and filling in these data gaps here: Research Is Very Important When Sending Preliminary Notice.
Here is how to get the information you need to fill in your Florida Notice to Owner.
1. Find the Notice of Commencement for your job
The Notice of Commencement in Florida will have all of the information you need to complete your Notice to Owner. In fact, this is one of the very purposes of the notice of commencement process: to provide subcontractors & suppliers with the information they need to get their NTOs done right!
When you get your hands on the NOC, you’ll have the description of the property, the owner’s identity, the identity of any payment bond providers, whether there is an owner designee, and the general contractor’s info.
2. Look for the building permit & request it
But what if you can’t find the NOC? What if it’s indexed wrong, or that it wasn’t filed in the right place, or it wasn’t filed at all?! These are all very possible things. And you know what’s really frustrating about this? If you can’t find the NOC, you won’t know for sure whether it’s just you…or if it’s because of some problem with the filing, the indexing, etc.
So, what do you do?
First, look for the building permit. The building permit will have most of the information you need. In fact, there’s some case law and legal statutes out there in Florida that in absence of the NOC, you can rely on the building permit. So, find the building permit.
Second, you can send a request to the GC and the owner asking for a copy of the NOC. Unfortunately, Florida doesn’t have a formal and defined process for this. Nevertheless, it may work and you may get it. If not, you’re showing that you are doing your diligence to find the information. That will definitely help you in the event of any errors!
The #1 reason liens get rejected: Bad information.
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Step 3: Serve your Notice to Owner on the right people, on time
Then the third step to getting your Florida NTO prepared and sent right is to get it sent out to the right people, at the right time, in the right way.
Who the NTO must be served on
No surprises here! The Florida Notice to Owner must be served on the owner of the property.
But, it’s common for contractors to overlook that the law requires it to be sent “up the chain” as well. This means that you should send a copy of the notice to every party between you and the owner in the payment chain. In addition to the owner.
There may be another party aside from those up the hiring chain that may need to receive the Notice to Owner in Florida, known as the owner designee. Or in other words, the owner designee is a person (or persons) that the property owner designates to receive the preliminary notice in addition to themselves.
Since the owner designee may be required to receive the notice, the owner is responsible for making that party known. The way the owner makes the Owner Designee known to the other parties on the construction project is by listing the designee on a Notice of Commencement.
When to send an NTO in Florida
Here’s the short answer: A Notice to Owner must be sent within 45 days of starting work on a Florida construction project (or before beginning work).
Here’s the long answer: Florida requires that an NTO be sent within 45 days of the first day on a project, or before the project starts. Perhaps the most dangerous detail of Florida’s notice to owner rules is what courts consider to be the “first furnishing.” Since your notice to owner absolutely cannot be sent later than 45 days from first furnishing, the date that marks the “first furnishing” is a critical date.
The magic number is 45. The clock starts ticking 45 days:
- From first furnishing services or materials;
- From when work begins on making specialty materials; or
- Before the owner’s disbursement of the final payment to the prime contractor.
It’s okay to send an NTO early, but not late
Florida lien law clearly empowers parties to send a preliminary notice as early as they want.
Florida’s lien law is clear with respect to sending notices early (go ahead). But, the law is the exact opposite when it comes to late preliminary notices. Don’t you dare send your notices late!
Keep in mind:
- Failure to provide the preliminary notice within the statutorily mandated time frame is fatal to the lien claim in Florida.
- It’s okay to send a Florida Notice to Owner early, even before commencing work on a project! The statute clearly empowers parties to send a preliminary notice as early as they want.
- The preliminary notice is considered delivered at the time of mailing only if the notice is sent within 40 days of first furnishing labor or materials, otherwise, the notice is considered served on the date of the owner’s receipt.
- BEST PRACTICE: Since you can’t send notice too early in Florida, and you can certainly file it too late, it’s a best practice for companies to get their notices out as early as possible.
How to send an NTO in Florida
Short answer: Send it certified mail.
Long answer: The notice must be delivered by certified mail or personal delivery, with evidence of delivery obtained. It’s important to not only deliver this notice but to keep evidence of the delivery so you can later prove compliance with the requirement.
Keep in mind:
- If the NTO is sent improperly or late, it will terminate any lien rights.
Learn more about how to properly deliver your Notice to Owner.
When you may need more than one NTO
An NTO is sent primarily to preserve lien rights. So when will multiple NTO’s will be required? The answer is directly related to whether multiple liens would need to be filed.
Making things more interesting, the Florida mechanics lien statute allows for one single claim of lien when labor, services, or materials were furnished for more than one improvement under the same contract, even if the improvements span separate lots, parcels, or tracts of land as long as they’re owned by the same owner.
That may have been a little confusing, so let’s break it down as follows:
- If work spans multiple lots, parcels, or tracts of land, one lien (and therefore, one NTO) may still be acceptable, IF there is only one prime contract, AND IF the property is all owned by the same owner.
- If there’s more than one owner, or if there is more than one prime contract, you’ll want to send multiple NTOs. Even if not necessarily required, it’s the safest way to proceed. Plus, the cost of sending an extra NTO pales in comparison to the potential cost of losing lien rights.
Keeping the above in mind, let’s look at three hypothetical project scenarios that might create issues or confusion.
Scenario 1 – Development project
Development projects are typically set out under one development or prime contract. And prior to construction, the property is usually owned by one party.
This could get tricky, though, if the land is divided and distributed to more than one owner. But, if the property is owned by one party and there’s only one prime contract on the project, one NTO should do the trick.
Bottom Line: One NTO should do the trick for a typical development project – as long as ownership hasn’t been divided yet.
Scenario 2 – Condominium project
Condominiums might present more of a headache. Again, the underlying ownership and contractual relationships will determine how many NTOs must be sent. If the condominium units are truly individually owned, work for any individual unit will require its own claim.
Regardless of who owns the unit(s), if work was done pursuant to more than 1 prime contract, a separate lien would be required for each contract. Sometimes, condominiums will only have 1 true owner. Unit “owners” will actually only own a right to use or inhabit the unit (rather than owning the underlying property). In such a situation, a project will be treated as having one owner.
Again, the rule is that one single claim of lien may be made when labor, services, or materials were furnished for more than one improvement under the same contract. This is true even if the improvements span separate lots, parcels, or tracts of land as long as they’re owned by the same owner. If work is done on multiple lots, parcels, or tracts and the above does not apply, sending multiple NTOs may be necessary.
Bottom Line: There’s a chance that multiple NTO’s may be required on a condominium project, depending on the ownership situation.
Scenario 3 – Apartment building project
Apartment buildings should be a little easier. Apartments are typically owned by one party, so ownership shouldn’t be a major issue. If the work is commissioned by a lessee instead of an owner, there are a number of factors that could result in no lien rights for a project.
However, whether work is done pursuant to one prime contract is still a concern. If work is done on multiple properties (separate lots, parcels, or tracts of land), and work has been done pursuant to more than 1 prime contract, multiple liens will be required (meaning multiple NTOs will also likely be required).
Bottom Line: There’s a chance that multiple NTO’s may be required on an apartment project, depending on the contract(s).
Florida NTO best practices
While the Florida NTO requirement does have some exceptions, it’s never a bad idea to send the notice. The exceptions cited above are all ambiguous at times and can come down to a decision from a judge. This means your mechanics lien rights will be up in the air while the particular issue gets litigated. That would cost you time and money. The easy solution is to err on the side of caution and always send a Notice to Owner.
1. Document your search for job information
It’s a good idea to clearly document your search through public records. Document not only the information you found but also the information that you did not find.
So what if you searched for a notice of commencement and couldn’t find it. Document that you did so and that the information was not available in the records. If you find something, store what you found exactly. That way you can refer to it later when asked to prove substantial compliance.
2. Send the notice on time — Even if information is incomplete
In all of the Florida cases finding “substantial compliance” with the Notice to Owner requirement, the sending party had sent something of a notice. It is simply unacceptable to send nothing at all or even to send anything late.
It’s a big, big, BIG mistake to hold off on sending the Notice to Owner. Don’t waste time scouring around the world and through your contacts looking for unidentified parties. Look in the public records, find what is there, and then send the notice. Period.
3. Make a formal request for corrective information in the notice
In all likelihood, you’ll have at least some of the information correct in the Notice to Owner. You’ll likely be able to find at least an ownership record. Or maybe you simply know the identity of your customer.
In any event, send the notice out to the parties you know. Also, include a mechanism for those parties to provide the corrective or missing information. In fact, formally demand it of them. Cite the area of law that requires they provide this information.
4. Don’t let others make you wait… Just SEND IT!
We alluded to this bad idea above. It’s a very bad idea to sit on a Notice to Owner while you look for missing information. It is not your obligation to find the missing information.
Subcontractors and suppliers clearly have the legal right to rely on the available public records. Accordingly, you will find much harsher punishment in the delay on sending an incomplete notice. More so then you will find in the incompleteness itself.
Sometimes this happens when people “call their customers” or other job stakeholders trying to get job information. When you start making requests to others for job information (which is fine and good), but waiting for their responses (this is bad). It just starts to chew up valuable time that will come back to haunt you.
Requests for information
Plus, when it comes to requests via email or telephone (and waiting for responses), this creates real problems and is generally not a great idea.
The problems with calling customers to get more information were discussed in the article “Why Requests for Information Are Better Than A Third Party Calling Your Customers.” In sum, however, calling around to get more information:
- is not reliable;
- is not well documented;
- results in unnecessary delays;
- costs too much;
- frequently results in inaccurate information;
- angers customers and aggravates everyone; and
- ultimately, isn’t even remotely required by the law.
Other Florida NTO & construction payment resources, guides, & more
Are you in the construction business or involved with a construction project in the Sunshine State? No matter whether you’re a general contractor, a material supplier, a property developer, a subcontractor, a construction lender, or something else entirely, a great place for you to get lots of helpful construction payment information and resources is on the Florida Resources page on the Levelset website.