What if a designee does not pick-up the NTO sent by certified mail?
NTO mailed to designees by certified mail but the Florida designee did not pick it up. Want to proceed with a Claim of Lien.
That’s a great question, and it’s one we get pretty often. Florida has an interesting rule on notices – and actual receipt of the notice isn’t necessarily required in order for an Notice to Owner to be considered properly sent. As long as the Notice to Owner was properly mailed to the appropriate address and there’s proof of that mailing, actual receipt isn’t generall required. But, the notice must be sent within 40 days of first furnishing (rather than just 45) in order to receive this benefit of the doubt. I’ll explain more below…
A Florida notice will be considered delivered at the time of mailing if it was sent by certified mail within 40 days of first furnishing labor or materials to the project and proof of that mailing is in-hand (like a detailed mailing log or electronic tracking record). Otherwise, the notice will be considered delivered at the time it’s received.
As for how unclaimed mail is treated – service of a Notice to Owner by mail is considered effective upon mailing (pursuant to the above) as long as it was sent to the recipient’s address in the Notice of Commencement, or if no Notice of Commencement is present, the last known address of the recipient. This is true even if the the mail is returned as “refused,” “moved, not forwardable,” or “unclaimed” or is otherwise not delivered or not deliverable (as long as it’s no fault of the person sending the notice).
So, to recap: As long as the notice was properly mailed to the proper address and that can be proven, the recipient’s actual receipt of the notice is largely irrelevant. Though, actual receipt of a preliminary notice is always preferable, and if a claimant can prove that the recipient(s) actually received a Notice to Owner they sent, a lot of potential problems will go by the wayside.
For more information on Florida notices and lien requirements, these resources should be really valuable:
(1) About Florida Preliminary Notice to Owner
(2) Florida Lien and Notice Overview, FAQs, and Statutes
(3) Florida’s Notice to Owner (NTO) Requirement.