We did not send preliminary notice within 45 days of the first furnishing on this FL project. We do anticipate payment problems. The job is still ongoing. If we send prelim notice for material going forward, will we have lien rights? Please provide further details on how the company can protect ourselves form a forecasted payment problem on this job. Thanks!
Unlike other states, where there is sliding protection regarding preliminary notices and lien rights, Florida's Notice to Owner requirements are fairly strict. If required (anyone without a direct contract with the property owner) then the notice must be sent within the first 45 days, if not, lien rights will not be available. If you've missed this deadline, there are still other ways to protect your payments as the project progresses.
First and foremost, sending a preliminary notice or "project awareness" letter anyways . It won't operate to secure lien rights, but it will increase your visibility on the project. Also, if you are anticipating payment issues, it may be time to tighten up your credit policy on this specific project. Including following up on payment applications with invoice reminders and payment demand letters in a consistent manner; which helps other project participants know that you're serious about getting paid.
Other ways to protect payments on this project may involve a bit of negotiation. One way is negotiate a joint check agreement with your customer. That way, when they receive payment from their customer, they won't be able to cash in, without your participation as well. Other options include securing personal guaranties or negotiating a letter of credit. These options are explored in more detail here: How Can I Secure Payment if No Lien or Bond Rights are Available?
Lastly, if a payment dispute does arise, you still have other avenues of legal recourse for nonpayment. These include claims against your customer for breach of contract, unjust enrichment, quantum meruit, and claims under Florida's Prompt Payment Act. For more on these claims see: