Will I be able to file a NTO? If so, how?
I have a question about filing a NTO.
We are the 4th tier subcontractor for a job.
Owner, GC, Sub1, Sub2, then us Sub3.
Are we not able to file a NTO?
This a big job and we have already filed a NTO as a third tier sub, but they are adding subjobs under other subs and we are being pushed down the tier.
Notice to Owner, like any preliminary notice, is valuable to start off work on the right foot. And, regardless of whether that Notice to Owner preserves any rights, it’s a good idea to send notice in order to keep others on the job informed of your work on the site. The mere act of sending notice will often keep payment issues at bay from the very start, as discussed here: Why You Should Send Preliminary Notice Even If It’s Not Required.
Further, as a quick note on vernacular: keep in mind that Notices to Owner are generally mailed by registered or certified mail with postage prepaid. The notices aren’t actually filed, and they don’t act as a payment claim themselves – really, they’re just informational pieces that also preserve rights later on. So, anyone who wants to send an NTO can send one. Whether that notice works to preserve lien rights is another question entirely.
With all of the above in mind, let’s look at the important question here: Who’s entitled to Florida mechanics lien rights?
Which subcontractors are entitled to Florida mechanics lien rights?
The definitions and text of the statute limit the tier of subcontractor that is entitled to file a lien.
§ 713.01(18) defines a lienor as:
(a) a contractor;
(e) materialman hired by the owner, a contractor, a subcontractor, or a sub-subcontractor; or
(f) A professional lienor under s. 713.03; and who has a lien or prospective lien upon real property under this part, and includes his or her successor in interest.
It also states that “No other person may have a lien under this part.” Further, to be sure, a “sub-subcontractor” is limited to a party hired by a first-tier subcontractor.
So, if subcontractor C was hired by subcontractor B, and if subcontractor B was hired by subcontractor A, then subcontractor C won’t be entitled to file a valid and enforceable mechanics lien.
Will hiring a subcontractor to push other subs down a tier eliminate mechanics lien rights?
This question is very interesting, and it’s not a question directly addressed by the Florida mechanics lien statute. However, I’m skeptical that a sub could be hired to push other subs down a tier, thereby eliminating lien rights.
Tiers in Florida’s mechanics lien statute are largely based on who the claimant was hired by. And, even if some additional tiers are added to the middle of the payment chain during the life of the job, that won’t change the tier of a party who’s already providing work to the job. Though, if a separate agreement was entered into during the job, that could re-set tiers based on who is hiring who.
Additional resources on Florida mechanics lien rights and preliminary notices
I hope this was helpful. For more information on Florida’s mechanics lien and notice rules, these resources should be useful: