I have 3 questions about Tampa, Florida. We have contract Invoices + noncontract invoices [Signed by customer to complete additional work]. We want to file a Notice of Intent to Lien and Mechanical Lien. What would be our “claimed amount” be on both NOI and Mechanical Lien ? Would that be all outstanding invoices PLUS Unreleased retainage ? All Invoices outstanding work have been completed, retainage are usually held 10% from each invoice, but if we're filling a Notice of Intent and Mechanical Lien, can we include that as part of our "Claim" ? The project is still on going, can we still file a mechanical lien ? Thanks.
Timing Under Florida Lien Laws
A Florida mechanics lien can be filed "at any time during the progress of the work or thereafter but not later than 90 days after the final furnishing of labor or services or materials by the lienor." (see: Fla. Stat. §713.08(5)).
As far as the Notice of Intent to Lien, this is not actually a required document in the Florida lien process, but its a great tactic to try and increase the pressure for payment before having to file a claim. Therefore, this document can be used at any point during the project.
Amount Claimed
The lien amount under FL lien laws is limited to "the amount unpaid the lienor for such labor or services or materials and for unpaid finance charges due under the lienor's contract.," under §713.08(1)(g) .
Generally speaking, any invoices signed by the customer for additional work can and should be included in the lien amount; as long as the work requested is related to the same project or scope of work under the contract.
Including Retainage in the Lien Amount
This is an unfortunate gray area under Florida lien laws. As you can see from the statutory language for lien amounts cited in the previous section, Florida mechanics liens protect unapid amounts that are "due." Therefore, retainage, particularly during the course of the project, is not necessarily due at that point. This puts contractors in a bit of a predicament. At the end of the day, retainage can (and have been included in a lien amount), but when and if it comes to a lawsuit to foreclose on the claim, there could be potential complications, and the amount claimed could be challenged.
There are risks and rewards that would need to be weighed to determine whether including retainage amounts is ultimately worth it. If you're still unsure, you should consult with a local attorney to discuss this in more detail. We have quite a few Florida construction attorneys in our Levelset Community that may be able to assist. In fact, one of our more active attorney members, Jason Lambert , is based right out of Tampa.