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Lien in Florida

Hi there, We are a supplier of construction products We were to supply a residential project in Florida, the subcontractor sent us a PO, confirmed our order, we made the material and started to truck material and were told to stop. We have charged them for our standard restocking fee (25%) as they haven't taken the product that they contracted and agreed to take. They have not paid the fee. We have issued a legal letter and are going to issue a statement of claim but also want to look at lien options. We issued the restocking invoice on Sept 26. I am concerned we're past the timeline to be able to file a lien, hoping that there are other options here for us.

1 reply

Dec 4, 2018

Hi! That's a good question - and I'm sorry to hear you've gone unpaid. Right off the bat - it's important to note that, in order to preserve the right to lien in Florida, claimants who do not contract directly with the property owner must send a Notice to Owner. Without sending that notice, the right to lien will likely not be available - as a result, many subcontractors and suppliers in Florida make it a point to send one at the start of every job. You can learn more about the notice here: Florida’s Notice to Owner Requirement. Next - let's look at the deadline. In Florida, the deadline to file a mechanics lien is is 90 days from the date when the lien claimant last provided labor or materials. Finally, as for whether lien rights would exist in a situation where materials are ordered, shipped, and the order is cancelled prior to delivery/incorporation - that's a thorny issue. Based on Lehigh Structural Steel Co. v. Joseph Langner and its progeny, where specially fabricated materials have been contracted for, but not yet delivered to the project property, the right to file a mechanics lien for the work performed but unpaid will turn on whether the non-delivery is a result of the owner's actions. Meaning, if the owner is the one who has cancelled the delivery and incorporation of specially fabricated materials, the claimant may have the ability to lien. But if the delivery and incorporation of materials is cancelled by someone other than the owner (such as a general contractor), the right to lien will not be present. Note, of course, that if the materials are not specially fabricated and the materials could be readily used in some other project - those materials might not give rise to lien rights. Finally, if you have more questions on lien rights in Florida, zlien's Florida Lien and Notice FAQ should be a great resource.

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