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Should we resend a preliminary notice if the contractor sends in changes months later?

FloridaPreliminary NoticeRight to Lien

We're a mateial supplier working on large development projects. Our contractor sends in updates to projects months after they've been prelimed and after the material has been delivered. Either removing or adding additional lots to the overall project. When that happens do we need to send an updated preliminary notice? Do we send one for both scenarios or only when they add lots?

1 reply

Jul 26, 2019
Great question. Before getting too far along, I think these resources might help clear up some things regarding Florida NTOs and sending revised notices: (1) Florida Notice to Owner — Do You Have to Send More Than One?; and (2) Is it OK to Send Revised Preliminary Notices? Still, let's explore the question in detail below.

A Notice to Owner will generally only preserve the right to lien for the property identified in the Notice to Owner - no more, no less. And, a Notice of Intent that's sent late won't preserve any rights. So, generally, if a Notice to Owner has been given for a project, but if that notice only identifies some of the properties that materials were furnished to, then only the properties identified in the notice would be subject to lien. And, sending a revised notice later wouldn't do anything to revive any rights.

Further, if a supplier has sent an NTO covering extra properties, that shouldn't really affect the viability of the rest of the notice. This is especially true when the supplier sent that NTO based on the information they received from the contractor. Instead, while those properties may have appeared in an NTO, if the materials weren't actually provided there, the right to lien just wouldn't exist on those lots. There's generally no need to revise notice to cut out extra information given at a previous date. And, as I'll explain further below, minor errors on an NTO won't ruin lien rights.

Florida's lien statute is a little flexible with NTO requirements (other than the deadline requirements). Under section 713.06 of the Florida mechanics lien statute, "If a lienor has substantially complied with the [NTO requirements], errors or omissions do not prevent the enforcement of a claim against a person who has not been adversely affected by such omission or error. However, a lienor must strictly comply with the time requirements of paragraph (a)." So, even if there are some issues with an NTO, those issues might not be fatal to a claim later on, especially when made in good faith and when the information leading to those errors came from the job's contractor.
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