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Is my company an exception to the NTO filing requirement?

My company is a Florida licensed underground utility and excavation contractor. We recently started doing commercial work which only includes “site work” and we have missed the 45 day filing requirement for NTO on each project. I have gathered that our line of work is exempt and can still file. Is this true? I read the following from an article posted by your company. https://www.levelset.com/blog/floridas-notice-to-owner-nto-requirement/

1 reply

Jun 4, 2019

That's a great question. While I'm not able to advise you on exactly how the rules will apply to your company and your situation, I can provide a little more background on Notice to Owner requirements and those who perform site improvements.

With that in mind, Fla. Stat. § 713.04 provides lien rights for those who perform services or furnish material to real property for the purpose of making it suitable for construction or further improvement. Under that section, this includes, but is not limited to, "grading, leveling, excavating, and filling of land, including the furnishing of fill soil; the grading and paving of streets, curbs, and sidewalks; the construction of ditches and other area drainage facilities; the laying of pipes and conduits for water, gas, electric, sewage, and drainage purposes; and the construction of canals and shall also include the altering, repairing, and redoing of all these things." That section continues: "When the services or materials are placed on land dedicated to public use and are furnished under contract with the owner of the abutting land, the cost of the services and materials, if unpaid, may be the basis for a lien upon the abutting land."

Further along, at § 713.04(2), the statute states that "If a lienor under this section who is not in privity with the owner serves a notice on the owner in accordance with the provisions of s. 713.06(2), payment of lienors by the owner under this section shall be governed by s. 713.06(3)(c), (d), (e), (f), (g), (h), and (4)." Those sections listed at the end of the quote provide additional payment rights, beyond lien rights. So, based on § 713.04(2), it would appear that companies who improve site improvements are able to send a Notice to Owner, but they are not required to in order to preserve lien rights - regardless of whether they're in privity of contract with the owner.

With all of that in mind, a few things: (1) When hired directly by the owner, no Notice to Owner is required, regardless of what type of work has been performed; (2) If doing work for a site improvement, lien rights will persist regardless of whether a Notice to Owner has been sent. But, if a Notice to Owner is sent - the company performing site improvements will be entitled to additional rights, beyond simply the right to lien.

Of course, it's a good idea to send a preliminary notice on every project - not just problem projects, and not just because it might be required to preserve rights. By sending preliminary notice on every job, construction businesses establish an open communication line early in the job, promote a collaborative atmosphere, and when push comes to shove, put themselves at the front of the line to get paid. For more on that idea, this article goes into better detail: Why You Should Send Preliminary Notice Even If It’s Not Required.

For more info on Florida's lien and notice requirements, this resource should be valuable: Florida Lien and Notice Overview, FAQs, and Statute.

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