How can you use a lien to protect your retention?

Generally speaking, your lien timeline is still going to be the same, regardless of when the retainage is supposed to be paid. I’m not aware of any authority that sets forth a different standard or provides you with any sort of excuse.

So if you are somebody who’s out on a project and is going to be maybe working early on the project and you have a retainage, that’s not going to be released until the end of the project. On the front end, you want to try and avoid those types of provisions in your contract because the other person’s not contractually required to pay you yet.

However, from a lien standpoint, because the lien is designed to protect payment for the work that’s been performed out there, you still would have only the 90 days to record your lien. So, honestly, you either have to come up with some sort of a circumstance with respect to either a new agreement or some other form of payment or some other form of security.

I have clients often who come in and we talk about the fact that there’s a conflict between the terms of the construction contract they signed and Florida’s lien laws. I always tell them the same thing. You cannot contract around these requirements. You have to have your lien right on the property, even if there’s a retention to be paid later.

The best way to use it is to record the lien and use it to secure your right to payment. That may force some sort of negotiation or other workout with respect to the retainage. It’s sort of a gray and a squishy area, because there’s not a lot of authority that deals directly with something like an early retention on a project and a lien that’s filed as a result of it.