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If a subsubcontractor files a NTO on a project they did not perform work, what do we do?

FloridaPreliminary Notice

As a GC, we have hired a subcontractor to perform site work on two projects. The site contractor hired a paving subcontractor on one project. We paid the site subcontractor to pay the paving sub subcontractor and he did not. The paving sub subcontractor has filed a notice to owner on the second project and is holding up funding for a project they did not work on. What is the next step as the sub subcontractor refuses to rescind the notice to owner.

1 reply

Nov 14, 2018

That's an interesting situation. To be sure - a sub-subcontractor has sent a Notice to Owner for a project they're not performing work on, and the receipt of that notice is holding up payment? Preliminary notice (such as Florida's Notice to Owner) should not typically hold up payments, since they're really just informational notices and do not represent an actual payment claim. However, I suppose having a Notice to Owner from a party without a corresponding lien waiver could potentially create headaches down the line. Anyway, as elementary as it may sound, explaining the situation to the party withholding funding could be a good first step. Further, offering a signed and verified statement that explains the sub-subcontractor who sent a Notice to Owner is not actually performing work on the project in question could be helpful - especially if a statement from the subcontractor can be obtained stating the same. Plus, putting pressure on a subcontractor who has not paid their sub could also be effective - and reminding them that legal liability could be in play should be effective as well. Another option may be to reach out to the sub-subcontractor who sent notice and try to resolve the issue. Informing them that their notice was improperly sent and that they may be liable for the effects of that improperly sent notice could help convince them to revoke their notice. Now, if the sub-subcontractor has filed a lien on a project they did not perform work on, and that lien is holding up payments - legal threats against a lien claimant for fraudulently filing the lien could be very effective. This is especially true considering filing a fraudulent lien can lead to felony charges in Florida. For more information on Florida's lien and notice rules, the zlien Florida Lien and Notice FAQs and this article on NTOs should be helpful. For more on fraudulent liens, this article may help: Don’t File Fraudulent Mechanics Liens.

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