A mechanics lien isn’t just a singular document, but rather a process. This is generally true in every state, including Florida. There are at least three different steps for Florida lien claimants, which each include a very specific deadline.

A recent case out of the Florida District Court of Appeals provided some clarity on how these deadlines are calculated — specifically the timing for direct contractors between providing a Final Payment Affidavit and filing a foreclosure action. What exactly constitutes five days?

Florida’s Contractor Final Payment Affidavit

Florida contractors that are hired directly by the owner (whether you’re a GC or a trade contractor) are required to provide the owner with a Final Payment Affidavit to the property owner.

This affidavit is meant to inform the owner that the work has been completed, and identify who has been paid in full. As far as when this affidavit should be given, it’s less of a deadline and more like a window. When final payment becomes due the affidavit must be provided to the owner, and it must be received at least five days before filing a lien foreclosure action.

Fla. Stat. §713.06 reads:

The contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit; however, the negligent inclusion or omission of any information in the affidavit which has not prejudiced the owner does not constitute a default that operates to defeat an otherwise valid lien. The contractor shall execute the affidavit and deliver it to the owner at least 5 days before instituting an action as a prerequisite to the institution of any action to enforce his or her lien under this chapter, even if the final payment has not become due because the contract is terminated for a reason other than completion and regardless of whether the contractor has any lienors working under him or her or not.

What’s unclear from this statute is how the five days are actually calculated. Does it require a full five days to pass before the claimant can file an enforcement action? Or can an enforcement action be filed on the fifth day?

This is precisely what the court tackled in A. Alexis Varela, Inc. d/b/a The Varela Construction Group. V. Pagio.

Download a free Florida Final Payment Affidavit Form

When is 5 days actually 5 days under Florida law?

Project snapshot:

In 2019, the Pagios had hired The Varela Construction Group to perform interior and exterior remodeling work on their home for a little over $75,000.

Upon completion, the Pagios contended that the work wasn’t performed in a timely and workmanlike manner, and they refused to make the final payment in the amount of $17,359. A construction lien was eventually filed in that amount on May 11, 2020.

On May 5, 2021, Varela served the required Contractor Final Payment Affidavit. Then, on May 11, a lawsuit was filed under three counts: (I) foreclosure of a construction lien, (II) breach of contract, and (III) unjust enrichment.

Trial court dismisses contractor’s foreclosure action

The Varela complaint alleged that they had complied with the condition precedent to a foreclosure action, including an attached copy of the Contractor Final Payment Affidavit which was served on May 5, 2021. In response, the Pagios filed a motion to dismiss the lien foreclosure claim. Their position was that Varela failed to deliver the affidavit at least 5 days before they filed a foreclosure action.

Since the Contractor Final Payment Affidavit statute does not provide a method for the computation of time, the Fla. Rules of General Practice & Judicial Admin. fills in the gap.

Under 2.514(a):

(1) [The] Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time:

(A) Begin counting from the next day that is not a Saturday, Sunday, or legal holiday

(B) Count every day, including intermediate Saturdays, Sundays, and legal holidays, and

(C) Include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, or falls within any period of time extended through an order of the chief justice under Florida Rule of General Practice and Judicial Administration 2.205(a)(2)(B)(iv), the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday and does not fall within any period of time extended through an order of the chief justice.

Thus, the Pagios reasoning was that if May 5, was the delivery date, the first day to count the five-day period would begin on May 6, and May 10 would constitute five days. If the statute requires the affidavit to be delivered at least 5 days before the action, then May 11 would be the first date the Valeras could initiate a foreclosure action, and the current action was filed a day early.

The trial court agreed and dismissed the lien foreclosure claim. Varela appealed.

Appeals court reverses, providing an important lesson in timing

However, the appeals court, in a short opinion, did not agree with the trial court’s assessment. The appeals court stated:

“The county court, reading the statutory language requiring delivery of the affidavit “at least 5 days before instituting an action,” concluded that there must be a gap of five clear days between delivery of the affidavit and institution of suite, meaning that suit could not be filed until the sixth day after delivery of the affidavit. This is not what the statute requires.”

They went on to state that this interpretation is inconsistent with Florida’s rules regarding the computation of time; and noted that only a small minority of states have adopted the “clear days” approach; i.e. including the start date and end date of a deadline. Florida rules only require the inclusion of only one of the dates (start or end date).

Thus, if the affidavit was served on May 5; the clock starts on May 5, and filing suit on May 10 is acceptable. Accordingly, the trial court’s decision was reversed, and the case was remanded to trial to continue the foreclosure action.