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Can I file a notice to commence after the 45 days, in Florida?

FloridaPreliminary Notice

We are renovating a hotel in Melbourne Florida. We are a subcontractor. We have worked for the general contractor for approximately 20 years, so we are very familiar with them. The owners of the hotel have not paid the general contractor in a timely manner, and therefore we have not been paid. I know the property is for sale, and I don't want to leave us unprotected. I didn't file a notice to commence, or a notice to owner of any kind. We started renovations on March 15th 2018, and continue to work there now. I filed a notice of intent to lien this morning. I wasn't aware that a notice to owner was necessary. Please advise.

1 reply

Jun 12, 2018
I'm sorry to hear that this has become a problem project. First, I'll note that subcontractors are not typically responsible for a Notice of Commencement - in Florida (and most other states) a Notice of Commencement is typically filed by the property owner (and sometimes their general contractor). But, in Florida, a subcontractor is typically required to send a Notice to Owner not long after the commencement of work.

Specifically, any party (except wage laborers) who does not have a direct contractual relationship with the property owner is required to serve a Notice to Owner within the earlier of 1) 45 days from first furnishing services or materials, 2) 45 days from when work begins on making specialty materials, or 3) 45 days before owner’s final payment to prime contractor. Of course, there are exceptions, and this article helps to explain why laborers, professionals, and site workers may be exempt from Notice to Owner requirements: Exceptions to Florida’s Notice To Owner Requirement.

Sending late notice may not be particularly effective (unlike states like California or Arizona, there is no leniency built in for late notice), but it might be worthwhile to send that notice late. However, even if notice was not sent and filing a valid mechanics lien may no longer be a valid option, that does not mean there is no way to recover unpaid sums: What If I Don’t Want to File a Mechanics Lien? Here Are 5 Other Options.
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