Protecting Yourself From Construction Liens When You’re Building From Out of State
Florida’s construction lien law surprises many new owners. If your builder doesn’t pay a subcontractor or supplier, that company can file a lien against your property, even if you’ve already paid the builder in full. When you’re building from another state, you can’t watch who shows up on site or hear about a payment dispute over the fence. So the paperwork has to do that job for you. This is part three of our series on building a Florida home from out of state.
Short version: Florida Statutes Chapter 713 lets unpaid subcontractors and suppliers place liens on the property they improved. You protect yourself in five steps. First, record a Notice of Commencement before work starts, and name a Florida contact to receive notices if you want one. Second, track every Notice to Owner you receive, since subs and suppliers who aren’t paid by you directly must send one within 45 days of starting work. Third, before each payment, get lien waivers from everyone who sent you a notice. Fourth, hold the final payment until the contractor gives you a final affidavit listing anyone still unpaid. Fifth, keep the Notice of Commencement from expiring, since it lasts one year by default and payments made after it expires are considered improper. A lien must be recorded within 90 days after a lienor’s last work. You can shorten its life by recording a notice of contest, which gives the lienor 60 days to sue.
How the lien system works
Florida’s lien law exists to protect the people who supply labor and materials. Your builder has a contract with you. The framers, plumbers, roofers, and lumber yard usually have contracts with the builder, not with you. If the builder takes your money and doesn’t pay them, the law lets them look to your property for payment. That’s how an owner can end up paying twice for the same work. The steps below are how you keep that from happening. Your contract should include a Florida lien law notice that explains this. See vetting and hiring a Florida builder remotely.
The key documents and deadlines
| Document | Who handles it | Timing | Statute |
|---|---|---|---|
| Notice of Commencement | Owner signs and records it with the county clerk, and a copy is posted at the site | Before work starts, and before the first inspection. Void if work doesn’t start within 90 days. Lasts 1 year unless it states otherwise | 713.13 |
| Notice to Owner | Subs and suppliers who don’t contract with you directly send it to you | Before or within 45 days after they start furnishing, and before your final payment | 713.06(2) |
| Waiver and release of lien | Lienors sign them in exchange for payment | With each progress payment and the final payment. Can’t be waived in advance | 713.20 |
| Contractor’s final affidavit | The contractor gives it to you | Before you make the final payment. At least 5 days before the contractor can sue to enforce its own lien | 713.06(3)(d) |
| Claim of lien | An unpaid lienor records it and serves you | Within 90 days after its final furnishing | 713.08 |
| Notice of contest of lien | Owner records it | Any time after a lien is recorded. The lienor then has 60 days to sue or the lien is extinguished | 713.22 |
Florida’s lien law generally covers improvements with a direct contract price over $2,500. Your lender, title company, or attorney can help you prepare and record these documents. See Florida building permits for how the Notice of Commencement ties into inspections.
Step 1: Set up the Notice of Commencement for a remote owner
The Notice of Commencement is the foundation of your protection. Under Section 713.13, you, the owner, must sign it, and it has to be recorded before work begins. If you have a construction loan, the lender must record it before releasing any construction funds, and the lender also gets copies of notices. A few points matter more when you live elsewhere:
- Use an address where you’ll actually get mail. Notices to Owner go to the address on the Notice of Commencement. If you list a Florida lot with no mailbox, you may never see them.
- Name a Florida contact. The form lets you designate a person in Florida to receive notices and documents for you, plus an optional second person to get copies of lienors’ notices. Your attorney or owner’s representative can fill that role.
- Sign it remotely if needed. Florida’s online notarization lets you sign from out of state. See the roadmap for how that works.
- Watch the expiration date. It lasts one year from recording unless it states a longer period. If your build will run longer, say so in the notice, or record a new one before it expires. The form warns that payments made after it expires are considered improper and can mean paying twice.
- Get it posted. A certified copy, or a notarized statement that it was filed with a copy attached, must be posted at the job site. Your builder usually handles this. Ask for a photo.
Step 2: Track every Notice to Owner
Subcontractors, sub-subcontractors, and suppliers who don’t have a contract with you must serve a Notice to Owner to keep their lien rights. They have to send it before, or within 45 days after, they start furnishing labor or materials, and before your final payment. If they don’t, that’s a complete defense to their lien. Laborers are the exception and don’t have to send one.
Keep a simple running list: who sent a notice, the date, and what they supplied. That list tells you whose lien waivers you need before each payment. A notice isn’t a sign of trouble. Many suppliers send one on every job as routine. It’s just your checklist.
Step 3: Get lien waivers before every payment
Under Section 713.06(3)(c), before each progress payment, the owner is responsible for amounts due to lienors who have sent a notice. In practice, that means before you, or your lender, release a draw, you collect a signed waiver and release of lien from the contractor and from each lienor on your list, covering work through that payment. Section 713.20 sets out statutory waiver forms for progress payments and final payments.
- Waivers follow payment. A lien right can’t be waived in advance, so a waiver only covers work already furnished.
- Conditional waivers: a lienor paid by check can make the waiver conditional on the check clearing.
- Joint checks: some owners and lenders pay the contractor and a key sub or supplier with a joint check, so the money can’t go anywhere else.
- Use your lender: many construction lenders collect waivers as part of each draw. Confirm what yours does. See construction loans and draw schedules.
Step 4: Hold the final payment until you get the final affidavit
Before you make the last payment, the contractor must give you a final affidavit. It states whether every lienor who sent a notice has been paid in full, and lists anyone who hasn’t been, with the amount owed. Section 713.06(3)(d) requires the owner to hold back the final payment until it’s furnished. If you pay without it, your property can remain subject to valid liens you knew about. Ask for final lien waivers from the contractor and every lienor on your list at the same time. The full closeout process is in closing out and moving in.
If a lien shows up anyway
- Check the basics: a claim of lien must be recorded within 90 days after the lienor’s final furnishing and served on you. Check whether that lienor sent a timely Notice to Owner.
- Talk to your contractor first: often it’s a payment dispute between the contractor and the sub that the contractor needs to resolve.
- Shorten the clock: a lien lasts one year from recording unless the lienor sues. You can record a notice of contest of lien under Section 713.22. The lienor then has 60 days to file suit, or the lien is automatically extinguished.
- Get an attorney involved: liens can block a refinance or sale and affect your title insurance. See title insurance and deeds.
If a contractor knowingly takes construction money and doesn’t use it to pay for the labor and materials on your job, that can be the crime of misapplication of construction funds under Section 713.345. For a licensed contractor, it can also bring discipline.
An alternative: a payment bond
On some projects, the contractor provides a payment bond, a surety’s guarantee that subs and suppliers will be paid. When a qualifying bond is in place and a copy is attached to the recorded Notice of Commencement, lienors generally look to the bond instead of your property. Payment bonds are less common on single homes and add cost, but they’re worth asking about on a large custom build.
Frequently Asked Questions
Yes, in Florida, if the subcontractor followed the lien law and wasn’t paid. That’s why owners collect lien waivers before each payment and get the contractor’s final affidavit before the last one.
A notice from a subcontractor or supplier who doesn’t contract with you directly, sent before or within 45 days after it starts work. It preserves its lien rights and tells you whose lien waivers to collect.
One year from recording unless it states a longer period. It’s void if work doesn’t start within 90 days of recording, and payments made after it expires are considered improper.
Yes. List a mailing address where you’ll actually get mail, and use the Notice of Commencement to designate a person in Florida, such as your attorney or owner’s representative, to receive notices for you.
A lien expires one year after recording unless the lienor sues. You can record a notice of contest of lien, which gives the lienor 60 days to sue or lose the lien. A Florida attorney can advise on your options.
Sources
- Florida Statutes, Section 713.13: Notice of commencement
- Florida Statutes, Section 713.06: Liens of persons not in privity; proper payments
- Florida Statutes, Section 713.08: Claim of lien
- Florida Statutes, Section 713.20: Waiver or release of liens
- Florida Statutes, Section 713.22: Duration of lien
- Florida Statutes, Section 713.345: Misapplication of construction funds
- Florida Statutes, Section 713.02: Types of lienors and amounts of liens
This article is for general informational purposes only and isn’t financial, legal, insurance, or tax advice – for guidance specific to your situation, talk to a licensed professional.