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Home>Levelset Community>Legal Help>I have a small cabinet business and didn’t file a notice to owner because payments were coming in so work progressed. Owner made some changes and adds so final bill had increased. Now at end of job and don’t want to pay balance. But it’s been more than the 45 period since commencement. Because of new construction and waiting on other trades so I could finish. What are my options at this point.

I have a small cabinet business and didn’t file a notice to owner because payments were coming in so work progressed. Owner made some changes and adds so final bill had increased. Now at end of job and don’t want to pay balance. But it’s been more than the 45 period since commencement. Because of new construction and waiting on other trades so I could finish. What are my options at this point.

FloridaRecovery Options

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1 reply

Feb 25, 2019
I'm sorry to hear about that. First, I'd like to mention that it's a good idea to send a Notice to Owner for every job, not just problem jobs. While some industry members seem to think of these notices as "pre-liens" or a sign that there's a problem on the job, that's not the case! In fact, the whole reason for requiring preliminary notices (like an NTO) is to provide higher-tier participants with information about who is working on their jobs. Plus, these notices promote transparency and communication from the jump - so they can even help to prevent payment issues in the first place. zlien discusses these ideas here: Why It’s a Bad Idea to Send Preliminary Notices on “Problem Jobs” Only. Anyway let's look at payment recovery rights in Florida. First, as I believe you'd hinted at in the question above, if a Notice to Owner was required, but not sent, then Florida claimants will not be able to file a valid and enforceable mechanics lien. Still, even where a mechanics lien might not be an available option, there are other tools for recovery that might help get the job done. For one, the mere threat of a mechanics lien filing can often compel payment - even where a claimant doesn't intend to file a mechanics lien. By sending a document like a Notice of Intent to Lien, a claimant can let their customer and the property owner know that they're serious about payment, and often, the document can lead to payment discussions without the need for further action. Because mechanics liens are such a powerful tool, a Notice of Intent to Lien can be effective regardless of whether the right to lien has actually been preserved - a threat to the property title will worry an owner, and that often puts pressure on them and/or their contractor to make payment to the prospective claimant. You can learn more about that option here: What is a Notice of Intent to Lien? Outside of the mechanics lien process and threats of utilizing it, there are other options, too, for recovering payment. Much like the threat of lien, the threat of taking specific legal action could help force payment - especially when sent via an attorney's letter. Legal actions such a breach of contract, unjust enrichment, or a claim under Florida's prompt payment laws might all be appropriate, and the threat of utilizing claims such as those might work to resolve the issue. But, if push comes to shove, a claimant may ultimately need to utilize litigation or small claims court to recover payment. Ultimately, every situation is different - so, in order to fully understand what options might be available and might be most effective, it would likely be helpful to reach out to a local construction attorney. They'll be able to review all documentaton and communications and provide advice on how to proceed.
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