Florida Lien Waivers Guide and FAQs

Sort of…Well, maybe.

Florida is one of the 12 states that provide statutory lien waiver forms. So, within Florida’s legal rules, there are actual form templates provided for lien waivers.  And, the laws state that a form “may” be used that is “substantially similar” to the provided templates.  

However, the statutes also provide an exit from the required template if the parties agree to something else. “A lien waiver or release that is not substantially similar to the forms…, is enforceable according to the terms of the lien waiver or release.” Therefore, if both parties agree to an alternative waiver form, they can do so. But keep an eye out for language that may waive more than just lien rights.

• For more on this see: Florida “Non-Required” Statutory Lien Waivers Can Lead to Confusion

No!

Under Florida statute, a person may not require a lien waiver that is different from the statutory forms provided. For an alternate form to be valid, both parties must agree to the alternate lien waiver form ahead of time. This is explicitly mentioned under Fla. Stat. § 713.20(6), “A person may not require a [contractor] to furnish a lien waiver or release…different from the forms” provided.” 

There is a practical difficulty with this. If someone is waiting on payment and the owner, lender, or general contractor refuses to make a payment without signing a specific lien waiver form, there will be a lot of pressure to just sign. However, if the contractor or supplier stands firm, they will have a really terrific position, because this is explicitly made illegal by the Florida law.

So, parties can agree to use an alternative form, but cannot be forced to.  And therefore, if you dabble in a different form, there is a question of whether the other form is “forced” or if it’s “agreed to.”  That’s a sticky argument that parties will want to avoid.

We talked about it in more detail when discussing one of the biggest Florida lien waiver mistakes: Getting Mixed Up About Which Form To Use.  

The statutory forms as provided by statute, are unconditional lien waivers. Meaning that once the waiver is signed, it effectively waives lien rights; regardless if payment has been made or not.

• For more on this important distinction: Unconditional v. Conditional Lien Waivers

However, under Fla. Stat. §713.20(7), “A lienor who executes a lien waiver and release in exchange for a check may condition the wavier and release on payment of the check.” Therefore, the statutory forms can be converted into a conditional lien waiver simply by adding conditional language to the waiver form. We recommend the following language:

Pursuant to Fla. §713.20(7), this waiver and release is conditional and effective only on the lienor’s receipt of payment from the financial institution on which the following check is drawn:

• Maker of the Check:
• Amount of Check:
• Check Payable To:

It depends.

If using the standard, unconditional statutory lien waiver forms, then they will be binding upon the execution (i.e. signing) of the form. If the “conditional language” has been provided, then the waiver will only become valid and binding once the referenced check/payment has cleared.

As for any non-statutory forms, the same general rules apply, but they will be enforceable in accordance with the terms of the waiver itself.

No, Florida statute specifically prohibits contract provisions that waive lien rights before work is performed. We refer to these as “no-lien clauses,” and many states, including Florida, have prohibited this practice. This prohibition applies to waivers contained in the contract, and any purported waiver prior to performance of work.

Even though a contractor or supplier cannot waive their lien rights in a contract — regardless of what they sign — it’s really common for contracts to include language suggesting exactly this. And it’s common for people to not know any better.

In fact, there was recently a crazy situation in Orlando related to this. The contractor wasn’t being paid and got really, really frustrated.  Instead of filing a Florida mechanics lien, the contractor “sabotaged the project” by crippling the project’s elevators!  The contractor got in big trouble for this, and was splashed all over the media. The contractor claimed he needed to sabotage the project because “under the contract signed with the owner, he was not allowed to file a lien.”

The problem is, even if such a contractual provision existed, it would have been invalid! If only the contractor read this page first…

Florida specifically prohibits waivers before work begins (see the previous question & answer), but after work begins, the parties can execute a valid lien waiver before payment is actually made.

This is why it’s so important to add “conditional language” to the lien waiver is payment hasn’t been received yet. If a contractor or supplier signs an “unconditional lien waiver” before they have cash in the bank…they could get stuck without lien rights; regardless of payment.

No. Florida statute does not require statutory lien waivers be notarized.

However, if using an alternate lien waiver form, and the terms state that the document needs to be notarized, then it will be required. Alternate lien waiver forms are enforced according to their terms. Unfortunately many owners and general contractors still feel it necessary to require notarization of waivers, even though it is a burdensome, and unnecessary practice if not required by state law.

If using one of the Florida statutory lien waivers, the following information must be included:

• Amount of payment being made
• Through date (for progress payment waivers)
• Hiring party’s information
• Property owner’s information
• Description of the property
• “Conditional language” if necessary
• Signed & dated by the claimant

That depends. The statutory progress payment waivers include a section that states, “this waiver does not cover and retention or labor, services, or materials furnished after the date specified.” So, future lien rights are still reserved when submitting progress payment waivers.

The final payment form provided doesn’t contain language reserving any lien rights. As far as best practices are concerned, it’s generally a good idea to add an exceptions section if there is pending retention or unapproved change order payments.