Florida Notice of Commencement
FAQs & Guide

Yes.  Florida has a very specific and complicated Notice of Commencement requirement that applies to all private jobs when the value is over $5,o00. The $5,000 threshold is quite low, and as a result, if you’re involved with a commercial, residential, industrial, or other private projects in Florida, the odds are substantially high that a Notice of Commencement is required on the job.

The Florida law very specifically requires that a Notice of Commencement get filed on all Florida jobs. There are legal consequences to all parties on a construction job if the Notice of Commencement is not filed. Plus, without an effective Notice of Commencement, an owner or contractor will struggle to pull the permits required for their job.

• See the question on our Expert Center: Does an NOC need to list all items we plan to get permits for?

The requirement to file the Florida Notice of Commencement is usually on the property owner.  There is a single exception to this.  Whenever the project has a construction loan on it, then the duty to file the Notice of Commencement rests with the bank (i.e. the construction lender), and the property owner is relieved of this task.  And this burden really, really is relieved. If the construction lender screws it up or doesn’t get the notice filed, the construction lender must protect the owner against any liens and against the risk of paying twice.

Interestingly, regardless of who is required to file the Notice of Commencement, it’s crystal clear within the Florida statutes that the owner, and only the owner, must sign it!  The owner may designate an agent in the NOC, and the owner may have a lender and be relieved of filing the notice…but in either case, and in any case, the owner must sign the Notice of Commencement document.  The statute’s specific language says this, “The owner must sign the notice of commencement and no one else may be permitted to sign in his or her stead.” And, if the work is for the common area of a condominium, the condo association can sign.

• Further, note that even if the property is being sold and repairs are being done, the Notice of Commencement must be signed by the current owner of the property.

• Great, detailed discussion of this in our Expert Center in answer to this question: Who needs to file a notice of commencement in Florida?

Unfortunately, the timing requirements for Florida Notices of Commencement have a few nuances. It’s important to get it right. Before addressing those nuances, the short answer here is that the notice must be filed before the work starts on the project.

Here, however, are some important details:

1. If there is a loan, do not file the notice of commencement before the mortgage is recorded!  This results in the construction liens taking priority over the mortgage. Too many homeowners file their NOC before finishing the mortgage process because they mistakenly believe they must file the NOC to get their building permit.  They do not!  And, in fact, in many cases, they should not!
2. The filing has to be within 90 days of when the project begins.  In other words, you need to get the NOC recorded before work begins on the project, but not too soon before.  Work must start within 90 days from the NOC’s filing.
3. An NOC is usually only valid for 1 year from the date it was filed.  The only exception to this is if the NOC states that the project will last longer than a year and gives an estimate of completion. As soon as the 1-year timeline passes, the NOC is completely void and invalid.  Therefore, if your project is still on-going more than a year after the first NOC was filed, you will need to file a second Notice of Commencement.

The Florida statute has this to say about where the Florida Notice of Commencement must be filed: “…shall record a notice of commencement in the clerk’s office and forthwith post either a certified copy thereof or a notarized statement that the notice of commencement has been filed for recording along with a copy thereof.”

This is requiring 2 different steps to get the Notice of Commencement properly filed.

1. Getting it Filed

Actually delivering it to the clerk’s office in the county where the construction project is located. The actual office may change from county-to-county, and so you’ll need to investigate this. Generally speaking, this information is easy to find. Here is a list of all the Florida county recorders’ offices along with their contact information and filing requirements.

• You can also file your Florida Notice of Commencement electronically here.

2.  Getting it Posted

The second part of the requirement is that property owners must make sure that the Notice of Commencement document is displayed at the project job site.

Yes. In states that have NOC requirements, like Florida, it’s common that an “Owner’s Designee” can be appointed in the NOC itself. This is allowed in Florida.

The point of an owner designee is that the owner can appoint some agent (i.e. an attorney, a property manager, a construction manager, etc.) to act as their designated agent for the construction job. This would be the point of contact who would receive project correspondence, like notice to owner documents. Owners should be careful about this. The owner must be comfortable that the owner designee is going to do the difficult job of keeping track of everyone’s payments. If a mistake is make, it is the owner – and not the designee – who is ultimately liable.

In order for the Notice of Commencement to be valid, it must contain the following information:

• • A description of the property sufficient for identification (including the legal property description, street address, & tax folio number if available)
• • Description of the improvements to be made
• • Owner’s name and address (or Lessee if work is commissioned by a lessee)
• • Contractor’s name and address
• • Surety’s name and address (if any)
• • Amount of payment bond (if any)
• • Lender’s name and address
• • Owner designee name and address (if any)
• • Expiration date

Property owners (and, if applicable, construction lenders) must be careful when distributing money on a construction project. It’s important that everyone on the job be paid. If anyone goes unpaid on the project — including all laborers, subcontractors, suppliers, and vendors — the owner could ultimately be responsible for paying twice for the same work, and lenders could have the title of the property compromised!  This, of course, is highly undesirable.

The Florida Notice of Commencement process helps owners and lenders avoid this undesirable outcome.  When a Notice of Commencement is filed, owners and lenders can protect themselves against these risks by following the payment process outlined in the Florida statues.  If the NOC is filed and payments are made pursuant to the statutory process, then the owner will be insulated against this risk.

It’s important to note that filing the NOC is not enough to get this protection. It’s just a step — the first step. The owner/lender must still make sure that they make “proper payments.”

• We explore how to always make proper payments in the Florida Notice of Commencement Checklist & Lien Risk Guide For Owners.

For subcontractors and suppliers in Florida, a Notice of Commencement affects their lien priority. If a NOC is filed, any mechanics liens will relate back to that date for the purpose of determining priority. This means that, if an unpaid supplier files a Florida mechanics lien two weeks after the project ends, the law treats their lien as if it were filed on the date that the Notice of Commencement were filed!

YES!

NOCs in Florida expire one year after they are filed.  This is really important.  Look at the NOC filing date.  Count one year.  That’s when the NOC expires.

Property owners and lenders should pay close attention to this date.  When a NOC expires in Florida, it becomes “void,” any payments made after such expiration will be considered “improper,” exposing the owner to the risk of having to pay for construction work twice.  If the project (or payments for a project) are continuing beyond the one year period, owners and lenders must file a second Notice of Commencement before the first one expires!

The statute does provide a single exception to this:  “If the [construction] contract…expresses a period of time for completion for the construction of the improvement greater than 1 year, the notice of commencement must state that it is effective for a period of 1 year plus any additional period of time.”  This will make the notice of commencement effective until that extended period of time. But, it must be enumerated specifically in the construction contract and the NOC.

Yes. In Florida, this notice must be signed by the owner, and notarized. The statutory form provided under § 713.13(1)(d) specifically includes a notarization block.

No, the Notice of Commencement in Florida does not need to be terminated or released, and there is no process for filing a “Notice of Completion” or any other document to signify that the project has been completed.

However, it is possible for a Florida Notice of Commencement to be terminated. The Florida statutes provide for this specifically in §713.132, stating that “an owner may terminate the period of effectiveness of a notice of commencement by executing, swearing to, and recording a notice of termination.”

It’s most common to see Notices of Termination filed whenever the owner or lender did something wrong with the original NOC, and needs to “re-do” or re-file it. In this case, the first NOC will be terminated and a second NOC will be filed.  Whenever a Notice of Termination is filed, any and all contractors and suppliers who contributed to the job beforehand should pay close attention…because their lien rights can be impacted. If unpaid, they will likely want to file a mechanics lien on the job.

No.  The Notice of Commencement requirement in Florida is exclusively for the property owners and construction lenders. Contractors and suppliers do not need to file a NOC, but they do have their own preliminary notice requirements — called a notice to owner in Florida.

• Learn more about the contractor & supplier’s Florida Notice to Owner requirement here:  Ultimate Guide to Florida’s Notice to Owner Requirement.

A Florida Notice of Commencement does not impact whether you are required to deliver a notice to owner in Florida, or not. All parties furnishing labor or materials on a project are required to send notice to owner in Florida, in all situations regardless of any other filing. The filing of a Notice of Commencement does not change this requirement.

However, the notice of commencement can definitely impact who needs to receive your Florida NTO.

Florida NOCs must identify: (i) the property owner’s designee, if there is one; and (ii) the construction lender, if there is one. If either of these parties are identified on the notice of commencement, they must receive the NTO in order for the contractor/supplier to protect their lien rights. In the case for the owner designee especially, there may be no other place where this party will be identified other than the NOC.

Mostly, no.  In Florida, anyone furnishing labor or materials to a construction project has a right to file a mechanics lien if they are unpaid.  This underlying right, the associated deadlines, and all the associated requirements are unaffected by the filing (or non-filing) of a Florida Notice of Commencement. Deadlines for notices and liens are not measured from the date Notice of Commencement is filed. Instead, they are typically measured from the date you begin work.

However, the Notice of Commencement does have 2 specific places where a contractor & suppliers lien rights can be impacted.

1) The Priority of the Lien

The “priority of a lien” refers to which liens are considered to be “first in line” to get paid. If a NOC is filed, the “priority” of all mechanics liens “relate back” to the date of the NOC’s filing, and all lien claims have the exact same priority. If a NOC is not filed, the priority of the lien is the date of the filing, and whichever lien is filed first has the higher priority.

• See: FL Subcontractor Lien Has Priority Despite Notice of Commencement Error

2) The Extent of The Owner’s & Lender’s Liability for the Lien

The second place a NOC impacts lien rights is in the protection given to owners and lenders in some circumstances.  Namely, if a Notice of Commencement is properly and timely filed, and the property owner/construction lenders always makes “proper payments,” the value of a mechanics lien claim against the job will be limited the dollar amounts that the owner/lender has not yet paid out to the general contractor.  This means, in other words, that a lien can only be filed for the “unpaid balance” on the job.

However, if a contractor or supplier has sent their Notice to Owner, this should not ever be a problem, because the property owner cannot make a “proper payment” without getting an executed lien waiver directly from the sub/supplier who sent the notice. Therefore, the only way you can lose your right to lien is if you signed a lien release and weren’t actually paid!!  Don’t do that!

• For more on lien waivers, see:  Florida Lien Waiver Forms & Guide – All You Need to Know

Florida requires that the property owner or the owner’s agent post the Notice of Commencement conspicuously on the job site before the project begins.  So, if you’re a contractor that is actually working on the job site, you should be able to find the NOC somewhere on the job site itself.

However, it is extremely possible that you will not find it.  Or, perhaps you are a supplier or vendor and will not physically be at the job site. In these cases, you’ll want to check with the county recorder’s office to get a copy of the Notice of Commencement. These documents are public records and are available to you, except that they can be hard to find sometimes, and if a NOC was not filed on the job, it may be difficult to know this for sure.

Finally, in some states, there is a formal process to request documentation like this from the owner or lender. However, there is no such process in Florida.

• For a more detailed discussion of this, see our article:  How to Find the Notice of Commencement for a Florida Construction Project.

No.  The Florida Notice of Commencement requirement is specifically for private construction jobs in Florida. This requirement does not apply to any state, county, municipal, city, or county projects.  Further, it does not apply to any federal government projects in Florida because Federal projects are regulated by the Federal Miller Act, which does not have a Notice of Commencement requirement for any of its jobs anywhere in the world.

If you’re struggling with figuring out what type of project you’re on and what rules may apply, you may find help in this article: The Types of Construction Jobs: What They Are and Why You Should Care.