If my hiring party (the general contractor) signs a lien waiver and sends it to the Property Owner, does it affect my lien rights in any way?
1 reply
Oct 15, 2018
That's a good question, and the answer, unfortunately, is maybe. Florida is one of many "unpaid balance" states when it comes to lien law. Meaning, amounts that are subject to lien on a given project are limited to the amount that is owed and not paid from the owner to the prime contractor. Thus, if a contractor has indicated they've received full payment, lien claims by subcontractors and suppliers may be limited. Of course, just because a contractor has provided a final lien waiver doesn't necessarily mean that they were actually paid in full (limiting the lien claims of subs), and even if they were paid in full, it doesn't mean that there's no hope for recovery. For one, a Notice of Intent to Lien can be effective even if lien rights may be in question. It acts as a warning - it states that, if payment isn't made and made soon, a lien claim will be filed. Considering how drastic the effects of a mechanics lien claim can be, an owner can't typically afford to ignore such a threat. Further, as mentioned above, a contractor's lien waiver can be given under many different scenarios that don't include full payment. In such a situation, a subcontractor's lien claim could be effective to compel payment. But even if a lien claim is not possible, other methods of recovery could still be effective. For one, a demand letter often does a good job of speeding up payments. Such a letter would threaten a customer or the property owner with specific legal actions (such as a breach of contract action, an unjust enrichment action, or an action under prompt payment laws, to name a few) unless payment is made. When a demand letter is sent via attorney, they tend to carry a little more weight. If threats aren't effective, sending the debt to collections or initiating litigation could also be fruitful - though most everyone will want to avoid having to take claim that far.