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Can retainage be included in the amount of your lien or bond claim in Florida?

3 months ago

If not, how do I get paid on retainage withheld in Florida for public and private jobs? How do I know when the owner has paid out retainage? Sometimes the owner may have paid out retainage to the GC but our customer has not paid us for retainage held.

Senior Legal Associate Levelset

Yes – when retainage is owed and unpaid, those amounts can typically be included in a Florida mechanics lien claim. For public projects, those amounts can generally be included in a bond claim, too. It makes sense – mechanics liens and bond claims are available for those who have performed work but not been paid for that work. And retainage, while a common practice, represents payment that’s not been made even though the work has been done. Note, though, that Florida bond claims must specify how much of the bond claim represents retainage pursuant to 255.05(2)(a)(2) of the state’s Little Miller Act.

As for knowing when retainage has been paid – for Florida private construction projects, it’s hard to know when a customer has received retainage. Asking the customer whether retainage has been released may be a good start, though a customer might not always be honest about that. Still, making the customer aware that recovery options – such as a mechanics lien – will be explored if payment is being made slowly and/or if the deadline is fast approaching might be helpful.

For Florida public works projects, there’s a little more guidance. Once the project is 50% complete, typically about half of the retainage being withheld from the contractor will be released by the public agency. Further, the public agency on a Florida public works project must release payment within 30 days of substantial completion of the project. So, it’s usually a safe bet to assume that the project’s general contractor has received the bulk of retainage within 30 days of project completion and that payments will begin winding down the payment chain shortly thereafter. And, it’s usually a safe bet that the contractor has gotten their hands on a good bit of retainage if the job is more than halfway finished.

Note, though, that a claimant might not always be able to rely on that timeframe. A Florida bond claim must be made between 45 and 90 days after the claimant’s last furnishing. And, claims made after that point won’t be considered timely. Further, note that asking the prime contractor whether the project has reached substantial completion and/or if the contractor has obtained retainage could be beneficial as well – and it could even affect the timeframes for filing suit on the payment bond.

For more on Florida’s retainage requirements: Florida Retainage Guide and FAQs.

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