Home>Levelset Community>Legal Help>How much does the info request per FL 713.23(1)(b) protect us if we don't know a GC for a NTO?

How much does the info request per FL 713.23(1)(b) protect us if we don't know a GC for a NTO?

We sent a NTO out through Levelset for a project and we did not have the name of the GC at the time. The request for info per FL 713.23(1)(b) was included at the bottom of the notice. The notice was sent to the correct property owner. We did not receive any info from the property owner about the GC. We subsequently identified the GC on our own as we ordered our Notice of Intent. The GC is saying we have no right to lien because they didn't receive the NTO. What is our next step? Does that FL statute protect us in any way, preserve our lien rights, if the property owner doesn't send us the requested information?

3 replies

Apr 8, 2020

Unfortunately, you do not have lien rights because you must serve notice to contractor on the contractor within 45 days of first furnishing of labor, services or materials. You say you did not have the GC's name, but it was listed on the same Notice of Commencement (NOC) that was used to send the NTO to the owner. The NOC is where the notice service gets the owner's name and address for purposes of sending the NTO. The GC should have been sent a copy of the NTO using the GC's address from the NOC. I also don't think you have any claim under Section 713.23(1)(b) because under that section, you have to show your damages were caused by the owner's lack of response. However, as noted above, you already had access to the GC's information. Persons not familiar with Florida lien law may not know how this works, but the owner will not be held responsible for the lienor's lack of knowledge of the process. You may have other claims. Feel free to send me an email if you have any further questions.

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Apr 9, 2020

Any time there's a Notice to Owner requirement that's not met, the potential for a future mechanics lien claim could be put in jeopardy. Though, the owner and the GC's contact information should be present in the project's Notice of Commencement. If the owner and/or GC failed to get a Notice of Commencement filed, and if a lienor couldn't otherwise obtain the GC's information (like through a request to the owner, other project participants, etc.), then I'm less certain that failure to send an NTO to the GC would absolutely cut off the potential for a lien claim. That'd seem especially true when the lienor requested that information from the owner and their customer but got no response. 713.135 of Florida's lien statute does say that an owner's failure to record a Notice of Commencement could result in them paying twice on the job - which is a source of hope for lienors. Though, that doesn't explicitly or necessarily mean a lien claim will be valid enforcible. Ultimately, this issue seems like something ripe for lawyers to argue about if a lien did end up being filed. Finally, regarding a request under 713.23 - keep in mind that section pertains to payment bonds on FL private projects. So, if this job wasn't bonded, then I'm not sure that relying on a request made under 713.23 will work to save any mechanics lien rights. And, to be sure, I'm not personally aware of a different section of FL's lien statute which requires an owner to respond to a sub's request for GC info.

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Apr 9, 2020

In response to the follow-up question, it is a completely different story if there was no notice of commencement recorded. The statute provides that, if the notice of commencement was not recorded before commencement of construction, the lienor not in privity with the contractor may serve the preliminary notice up to 45 days after being served with a copy of the payment bond. The original question suggested there was a notice of commencement recorded; otherwise, how did the lienor know where to serve the NTO? If that is not the case, then my answer above applies.

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