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Contractor now claims another company is responsible for payment after filing prelim notice.

Contractor hired us for work and now will not pay. Prior to filing preliminary notice he informed us that weeks prior to our initial hire and work on the job he had broken ties with Central Florida Home Design and the job was through him. Now that we have filed a prelim notice he is claiming that Central Florida Home Design is the contractor on the job and he is not responsible for paying us. Florida sunbiz site shows this mans name still listed on the business license as an active partner. Do we have to redo our prelim notice and who do we pursue going forward with intent to lien and ultimately a mechanics lien.

1 reply

Aug 21, 2018

I'm sorry to hear about that - this situation definitely sounds frustrating. First, whether a Florida Notice to Owner may be re-sent may depend on whether the deadline to send one has passed. If the deadline has not passed, a Notice to Owner may likely be re-sent without issue. However, if the deadline to send notice has passed, late notice would likely be ineffective to do anything, and sending late notice could even jeopardize the effectiveness of the first notice. Further, additional notice may not even be required. If a hiring party held themselves out as the sole contractor and a claimant relied on that information to send their Notice to Owner/Notice to Contractor, the contractor could likely not effectively use that misinformation to bar a lien claim. Further, if that individual was acting on the project on behalf of the true contractor, that person was still given notice - and that could be effectively serve as providing notice to the contractor, as required. Finally, under § 713.06(f), when a lienor has substantially complied with their notice requirements, "errors or omissions do not prevent the enforcement of a claim against a person who has not been adversely affected by such omission or error." If the party holding themselves out as a contractor works for the actual contractor, providing that person notice may be enough to put the contractor on notice of a potential claim. The bottom line here should be that: (1) If the deadline to send notice has not yet passed, sending additional notice might be wise; (2) If the deadline to send notice has passed, a claimant's revised preliminary notice would likely be ineffective anyway and could actually be problematic for a later-filed lien claim; and (3) There's a fair chance that notice sent to a party who represented himself as a contractor but actually only works for the true contractor would be effective. Regarding who to send a Notice of Intent to Lien to if payment problems arise - sending a Notice of Intent to Lien to everyone involved up the chain is likely wise. This includes the contractor and the owner - and if there's confusion as to who the contractor is, when in doubt, send extra notice! The more parties in receipt of the notice, the more parties that are aware of the dispute and will feel the pressure of a potential lien claim. And finally, regarding a mechanics lien, the lien will only be filed against the property owner - though the contractor's information would also be included. When in doubt, adding all parties who may be the contractor might be the best bet. They can likely be removed from the lien via amendment or via pleading later on if necessary, but failing to include any necessary party at the time a lien is filed could be fatal to the lien claim.

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