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I have received Notice To Owner from a possibly unpaid subcontractor

FloridaMechanics Lien

I have received a Notice To Owner from a possibly unpaid subcontractor for our cabinets. For 8 months now, they have only returned to do punch out work and warranty work. All of this was fabricated materials and custom. The builder/contractor supposedly has not paid them in full, so the cabinet people say. They say they are owed 25k. We have only received NTO just now, and not within the 45 days of commencement or when they first did cabinet work and install which was months ago. In fact, we still have warranty issues that are not fixed. Our construction loan has been paid/released in full to the builder with the exception of about 10k in overages we have agreed to pay to the builder for some very specific things that are not cabinets. The problem with that is that the builder still has not finished our home in some areas and has not contacted us or returned to finish. They have breached contract thus far. Our main stairway is not done and the parts and laborers due to covid excuses are either late or they say they have no one to do the work. The cabinet people claim the same when it comes to our warranty issues. The NTO can't be valid if it was sent well after last labor and materials with the exception of punchout warranty issues of which I believe were also more than 45 days ago the last time they were here. Does the cabinet company have right to file a lien?

7 replies

Jan 10, 2022

If the NTO was not delivered to the owner within 45 days of first starting the work, then a claim of lien would not be valid or enforceable under Florida's Lien Laws.  

As for breach of contract, we would need to review your written contract to advise of your rights or responsibilities when work is not completed or fixed. 

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Jan 10, 2022
Hello. Thanks for your reply. I just spoke with a friend who has built a lot of real estate. He said it is possible though that a judge could just rule however they want and say that the cabinet people did their job and supplied the materials. (They have not finished punchout yet tho nor brought replacement pieces for drawers and doors not working right). My response to him was that I did my job and paid the GC. Also the cab people have not done any substantial work for over 90 days to be able to file a lien. But could a judge choose to ignore the 45 day rule and go against me just because he wants to? Can you appeal a judge doing that? A 25k lien on my property makes it hard to finance a loan for a pool. Also can I be forced to sell my house if they lien in Florida?
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Jan 10, 2022
No, the judge cannot ignore the Florida Lien Law statutes and the requirement of Notice to Owner being delivered within 45 days of first starting the work. And yes, you can appeal if a judge ignores a clear statute. Over 95% of all liens that go to judgment get paid. However, if a lien goes to judgment and does not get paid, then yes, your house could be sold. A construction lien foreclosure action is very similar to a mortgage foreclosure action. I hope this answers your questions.
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Jan 10, 2022
Thank you again. I understand but it appears in my situation any lien would get thrown out as the NTO is over a year late. Is there ever a situation they are allowed to send it late? I have read online they can, but this late and how and why? If not, I am assuming they are not going to win if they file one.
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Jan 11, 2022
Atty Williams: What does this mean regarding the payment part? I am not sure I understand. Does it mean they CAN send an NTO after 45 days? This statement has me concerned. “ In Florida the applicable statute mandates that the notice to owner be served no later than the earliest of the following: (a) 45 days from first furnishing of his labor, services or materials, or (b) before the making of final payment in reliance upon a final contractor’s affidavit.”
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Jan 11, 2022

Any NTO must be served before final payment if there is a final contractor's affidavit. In any event, the NTO must be served within 45 days of first furnishing. There is no situation that allows a subcontractor to serve the NTO more than 45 days after first furnishing. There are prior appellate decisions in Florida to suppor this (the statute was amended to prevent serving a NTO more than 45 days after first furnishing). Hope this answers your questions.  

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Jan 11, 2022
Yes, and thank you very much for your time that makes it more clear. If an NTO is late, I assume the lienor can still file the lien prompting me to still file a notice to show cause or a contest of lien? Basically, even though the NTO is late, the lienor can still force a legal response from me the owner?
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