2385 NW Executive Center Drive, Suite 100,
Boca Raton, FL 33431
West Palm Beach, FL 33409
Phone: (561) 629-5757
Fax: (888) 600-0201
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CONSTRUCTION LAW

The firm concentrates in Construction and Contract Law, representing general contractors, subcontractors, sub-subcontractors, materialmen, sitework contractors, design professionals, minor contractors and owners in civil litigation, arbitration, mediation and dispute resolution.  The firm also provides guidance and advice in contract negotiations, filing/serving legal notices and the claims process as each relates to the wide array of issues arising in the construction industry.  Typical subjects of representation include: Contractor Licensure, Change Orders, Delay/Acceleration Claims, Construction Claims of Lien, Lien Law Compliance, Proper/Timely Payment Claims, Performance/Payment Bonds Claims, Architectural/Professional Errors and Omissions, Defects/Negligence Claims, Enforcement and Compliance with Florida’s Right to Repair Law, Bid Protests, and Other Claims.

Consult with us about your rights and responsibilities today.


Licensure

It is essential that persons and legal entities engaged in contracting possess the appropriate licenses before engaging in contracting.  For example, an unlicensed contractor (at the time of contracting) is not entitled to a claim of lien to secure performance of his contract.  §713.02(7).

Nor is an unlicensed contractor entitled to enforce his contract.  §489.128(1) and §489.532(1) (electrical and alarm systems).  These same provisions also work to preclude an unlicensed contractor from recovering monies in equity (i.e. quantum meruit, unjust enrichment, etc.)

Even though a contractor may not have the right to a claim of lien or the right to sue on his or her contract (or in equity for that matter), an innocent owner is not prevented from enforcing the contract or suing in equity against an unlicensed contractor.  To the contrary, a consumer who is injured by an unlicensed contractor (which is defined a bit differently) as a result of the unlicensed contractor’s “negligence, malfeasance, or misfeasance” is generally “entitled to three times the actual compensatory damages sustained in addition to costs and attorney's fees”.  §768.0425.

For licensure, a contractor is a contractor if he meets the definitions of “contractor” and “contracting” in §489.105(3)and §489.105(6).  The “contracting” definition includes brokering and solicitation of sales.  §489.105(6) (“The attempted sale of contracting services and the negotiation or bid for a contract on these services also constitutes contracting.  If the services offered require licensure or agent qualification, the offering, negotiation for a bid, or attempted sale of these services requires the corresponding licensure.”)  Thus, any person attempting to sell contracting services must be appropriately licensed or be exempt from licensure, such as an employee acting within the scope of his employer/contractor’s license.

The State of Florida recognizes the following categories of contractors by statute: general contractor, building contractor, residential contractor, sheet metal contractor, roofing contractor, class A air-conditioning contractor, class B air-conditioning contractor, class C air-conditioning contractor, mechanical contractor, commercial pool/spa contractor, residential pool/spa contractor, swimming pool/spa servicing contractor, plumbing contractor, underground utility and excavation contractor, solar contractor, pollutant storage systems contractor and specialty contractor.  §489.105(3)(a)-(q).

A contractor must be certified by the Department of Professional Regulation to perform contracting services throughout the state or be licensed in each local jurisdiction in which the contractor is performing contracting services.  If a contractor is locally licensed (such as by a county, city or municipality), the contractor must register its license with the Department of Professional Regulation if the local license substantially corresponds to the scopes of contracting services under §489.105(3)(a)-(q) (listed above).  Fla. Admin. Code, Rule 61G4-15.0055.

Business entities, such as corporations, limited liabilities companies, partnerships, joint ventures and other business arrangements must also be issued a Certificate of Authority (formerly a “Qualified Business Entity”) by the Department of Professional Regulation.§ 489.119(2).

Specialty contractors are exempt from becoming registered or certified by the Department of Professional Regulation or obtaining local professional licenses for work on single family residences, provided they are not required to be registered or certified under §489.105(3)(d)-(o) and are “under the supervision of a certified or registered general, building, or residential contractor.”   §489.117(4)(e).

In addition to the licenses discussed above, each county, city and municipality is allowed to require contractors (as well as other professions and occupations) to obtain occupational licenses pursuant to §205.  However, for contractors, only the one county, city or municipality where the business, profession or occupation is permanently located may levy an occupational license tax.  §205.065.  Any county, city or municipality that wrongfully refuses a contractor’s exemption can be sued in court by the contractor who can recover his or her attorney fees if the contractor prevails.  §205.065.

In short, Florida’s state and local licensure requirements are complex and failure to comply with them can result in serious consequences.  Contractors should contact a construction law attorney to guide them through this process.  Owners should also contact a construction attorney if they believe they are victim of an unlicensed contractor.

Claims of Lien

Assuming a contractor is properly licensed, it is imperative that a contractor comply with Florida’s construction lien statutes (§713) to have a valid and enforceable claim of lien against an owner’s property.  Florida's statutes are very specific and contractors have lost their lien rights for failing to comply with the statutes’ requirements as well as for failing to comply in a timely manner.  As a result, contractors who improperly record an invalid claim of lien can be held liable, under the construction lien statutes, for the owner’s attorney fees (as a prevailing party) incurred in defense of a foreclosure action or in an action to remove the claim of lien that the contractor recorded.  §713.29.

Contractors should contact a construction law attorney to establish procedures and ensure compliance with the lien statute’s requirements so that they (1) do not lose their lien rights, and (2) are not subjected to liability for the owner’s attorney fees for recording or attempting to foreclose on a claim of lien that is invalid for failure to comply with the lien statute.  Owners should also contact a construction attorney if they become aware of any potential dispute or claim of lien.

Construction Liens & Attorney Fees

Florida’s lien laws provide that “[i]n any action brought to enforce a lien or to enforce a claim against a bond under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party's costs, as allowed in equitable actions.”  §713.29.

Contractors should contact a construction law attorney to establish procedures and ensure compliance with the lien statute’s requirements so that they (1) do not lose their lien rights, and (2) are not subjected to liability for the owner’s attorney fees for recording or attempting to foreclose on a claim of lien that is invalid for failure to comply with the lien statute.  Owners should also contact a construction attorney if they become aware of any potential dispute or claim of lien.

Improvements of $2,500 or Less

Where the direct contract price for any improvement is $2,500 or less, the contractor is exempt from the provisions of the construction lien law, except that such contractors must comply with §713.05 (which is discussed below).  §713.02.

Contractors performing work worth less than $2,500 should contact a construction law attorney to establish procedures and ensure compliance with the lien statute’s requirements so that they (1) do not lose their lien rights, and (2) are not subjected to liability for the owner’s attorney fees for recording or attempting to foreclose on a claim of lien that is invalid for failure to comply with the lien statute.  Owners should also contact a construction attorney if they become aware of any potential dispute or claim of lien.

Professional Services (§713.03)

Architects, landscape architects, interior designers, engineers, surveyors and mappers are entitled to liens on real property if they comply with Part I of §713 for services rendered under a direct contract with an owner for improvement of real estate or administration of real estate improvements, regardless of whether the real estate is actually improved.  §713.03(1)&(2).  Such professionals are exempt from providing a notice to owner (discussed below) and from providing a contractor’s affidavit (discussed below).  §713.03(3).

Design and other construction professionals should contact a construction law attorney to establish procedures and ensure compliance with the lien statute’s requirements so that they (1) do not lose their lien rights, and (2) are not subjected to liability for the owner’s attorney fees for recording or attempting to foreclose on a claim of lien that is invalid for failure to comply with the lien statute.  Owners should also contact a construction attorney if they become aware of any potential dispute or claim of lien.

Site and Subdivision Improvements (§713.04)

Regardless of whether a person has a direct contract with the owner, any lienor who provides services or materials to make land suitable for construction of improvements is entitled to a lien for such services and materials, provided that the services and materials were rendered in accordance with his or her contract and the direct contract with the owner.  §713.04(1).  These services and materials include but are not limited “the grading, leveling, excavating, and filling of land, including the furnishing of fill soil; the grading and paving of streets, curbs, and sidewalks; the construction of ditches and other area drainage facilities; the laying of pipes and conduits for water, gas, electric, sewage, and drainage purposes; and the construction of canals and shall also include the altering, repairing, and redoing of all these things.”  §713.04(1).

For site contractors, notices of commencement and notices to owner (discussed below) are not required to have a valid claim of lien.  §713.04(1). That said, by serving a notice to owner under §713.06(2), a lienor who does not have a direct contract with the owner can require an owner to make payments in accordance with §713.06(3)(c),(d),(f),(g)&(h) and (4).

An owner cannot pay any money to any site contractor until after labor and services or materials are furnished for the improvements.  §713.04(3).  Nor can an owner make final payment until after the contractor provides a contractor’s affidavit.  §713.04(4).  The owner’s failure to comply with these requirements may render the owner liable for improper payments under the lien statutes.  §713.04(3)&(4) .

Sitework contractors should contact a construction law attorney to establish procedures and ensure compliance with the lien statute’s requirements so that they (1) do not lose their lien rights, and (2) are not subjected to liability for the owner’s attorney fees for recording or attempting to foreclose on a claim of lien that is invalid for failure to comply with the lien statute.  Owners should also contact a construction attorney if they become aware of any potential dispute or claim of lien.

Those Dealing Directly with the Owner (§713.05)

A materialman, laborer or contractor who is dealing with the owner under a direct contract who complies with Part I of §713 is entitled to a lien on the real property he or she is improving for labor, services, materials, and other items as well as unpaid finance charges.  Such a lienor (other than a laborer or materialman) must provide a contractor’s affidavit (discussed below) as required by §713.06(3)(d).  No one else is entitled to a lien under §713.05.

Contractors with direct contracts with owners of real property should contact a construction law attorney to establish procedures and ensure compliance with the lien statute’s requirements so that they (1) do not lose their lien rights, and (2) are not subjected to liability for the owner’s attorney fees for recording or attempting to foreclose on a claim of lien that is invalid for failure to comply with the lien statute.  Owners should also contact a construction attorney if they become aware of any potential dispute or claim of lien.

Those Not Dealing Directly with the Owner (§713.06)

Materialmen, laborers, subcontractors and sub-subcontractors who are not dealing with the owner under a direct contract who comply with Part I of §713 are entitled to a lien on the real property improved for labor, services or materials furnished (as well as any unpaid finance charges) in accordance with his or her contract and the general contractor’s direct contract with the owner.  §713.06(1) .  Generally, the total of all liens cannot exceed the contract price under the general contractor’s direct contract with the owner.  §713.06(1).  No one else is entitled to a lien under §713.06.

A contractor claiming a lien under this section must provide a notice to owner (discussed below) and a contractor’s affidavit (discussed below).  §713.06(2)&(3)(d).

Materialmen, laborers, subcontractors and sub-subcontractors should contact a construction law attorney to establish procedures and ensure compliance with the lien statute’s requirements so that they (1) do not lose their lien rights, and (2) are not subjected to liability for the owner’s attorney fees for recording or attempting to foreclose on a claim of lien that is invalid for failure to comply with the lien statute.  Owners should also contact a construction attorney if they become aware of any potential dispute or claim of lien.

Compliance with Part I of §713

As noted above, contractors are generally required to comply with Florida’s construction lien statutes in order to be entitled to a claim of lien.  The following are some of those provisions (Note: As indicated above, every contractor is not required to comply with each and every one of the following items):

Notice to Owner

Before perfecting and recording a claim of lien, a lienor that is required to provide a notice to owner, must serve a notice to owner on the owner and a copy to the contractor he or she has dealt with in accordance with §713.06(2)(a).  If the owner has designated someone to handle notices to owner in the notice of commencement, a copy of the notice to owner must also be sent to the designated person (failure to do so does not invalidate an otherwise valid lien).  §713.06(2)(b).  In addition, a copy of the notice to owner must be served on the lender (if any) in writing in accordance with §713.18 and addressed to the persons, places and addresses designated in the notice of commencement.  §713.06(2)(d)

The notice must include the information and warning specified by statute.  §713.06(2)(c).  Errors and omissions in the notice do not prevent enforcement against a person that has not been adversely affected, provided the lienor substantially complies with the statutory requirements of a notice to owner.  §713.06(2)(f).  That said, a notice to owner must be served before commencing work or no later than forty-five (45) days after commencing work, but not later than the owner’s disbursement of final payment.  §713.06(2)(a).  The failure to do so in a timely manner “is a complete defense to enforcement of a lien by any person.”  §713.06(2)(a) .  This deadline is construed strictly.  §713.06(2)(f).  Thereafter, the lienor must record his or her claim of lien.  §713.06(2)(a).

An owner who receives a notice to owner must handle the notice, claim and lien as set forth in the statutes.  §713.06

Contractors should contact a construction law attorney to establish procedures and ensure compliance with the lien statute’s requirements so that they (1) do not lose their lien rights, and (2) are not subjected to liability for the owner’s attorney fees for recording or attempting to foreclose on a claim of lien that is invalid for failure to comply with the lien statute.  Owners should also contact a construction attorney if they become aware of any potential dispute or claim of lien.

Final Contractor’s Affidavit

A lienor that is required to provide a contractor’s affidavit must provide the contractor’s affidavit to the owner (which must be substantially similar to the form required by statute) when final payment becomes due.  §713.06(3)(d)(1).  The affidavit must be executed and delivered to the owner at least five (5) days before the contractor files suit to foreclose a lien.  §713.06(3)(d)(1).  The contractor has no lien or right of action against an owner “while in default for not giving the owner the affidavit.”  §713.06(3)(d)(1).

Contractors should contact a construction law attorney to establish procedures and ensure compliance with the lien statute’s requirements so that they (1) do not lose their lien rights, and (2) are not subjected to liability for the owner’s attorney fees for recording or attempting to foreclose on a claim of lien that is invalid for failure to comply with the lien statute.  Owners should also contact a construction attorney if they become aware of any potential dispute or claim of lien.

Timely and Proper Service and Recording of Claims of Lien

Every lienor must record a claim of lien which must contain certain information and be signed and sworn to by the lienor or his or her agent who is “acquainted with the facts stated therein.”  §713.08(1)(a)-(h) and (2).  The claim of lien must also contain a specific warning.  §713.08(3).  A claim of lien must be filed not later than the first of (a) ninety (90) days after the final (substantial) furnishing of labor and services by the lienor or (b) ninety (90) days after the termination of the direct contract with the owner.  §713.08(4)(d)

A claim of lien must be served on the owner before or within fifteen days after recording the claim of lien; otherwise the claim of lien is voidable where the failure to serve or timely serve prejudices any person entitled to be served with the claim of lien.  §713.08(4)(c)

The inclusion or omission of information that does not prejudice the owner does not invalidate an otherwise valid lien.  §713.08(3).  The trial court has discretion as to whether a claim of lien should be enforced against a person who has not been adversely affected despite errors or omissions in the claim of lien.  §713.08(4)(a).

A claim of lien is only valid for one year from the date it is recorded or one year from the date of the last amendment showing a later date of furnishing labor, services or materials, unless an action has been timely commenced (but not yet concluded) to enforce the lien.  §713.22(1).  This one year period may be shortened by an owner.  §713.22(2).

Contractors should contact a construction law attorney to establish procedures and ensure compliance with the lien statute’s requirements so that they (1) do not lose their lien rights, and (2) are not subjected to liability for the owner’s attorney fees for recording or attempting to foreclose on a claim of lien that is invalid for failure to comply with the lien statute.  Owners should also contact a construction attorney to shorten the time for suits on a claim of lien or if they become aware of any potential dispute or claim of lien.

Notice Requirements for Certain Residential Claims of Lien

Any direct contract between an owner and a contractor with a contract price greater than $2,500.00 for improvements of residential real property of one (1) to four (4) residential units must provide a certain notice required by statute in boldface capital letters no less than 12 point font on the front of the contract or on a separate page that is signed and dated by the owner (if the contract is in writing, the notice must be in the contract; if the contract is oral, the notice must reference the oral contract).  §713.015(1)&(2).

Contractors should contact a construction law attorney to establish procedures and ensure compliance with the lien statute’s requirements so that they (1) do not lose their lien rights, and (2) are not subjected to liability for the owner’s attorney fees for recording or attempting to foreclose on a claim of lien that is invalid for failure to comply with the lien statute.  Owners should also contact a construction attorney if they become aware of any potential dispute or claim of lien.

Requests for Contracts, Statements of Account, Subcontractor Lists and Affidavits

Contractors should contact a construction law attorney to establish procedures and ensure compliance with the lien statute’s requirements so that they (1) do not lose their lien rights, and (2) are not subjected to liability for the owner’s attorney fees for recording or attempting to foreclose on a claim of lien that is invalid for failure to comply with the lien statute.  Owners should also contact a construction attorney if they become aware of any potential dispute or claim of lien.

Failure to Make Timely Payments

Parties are generally required to comply with the terms of the contract, including terms setting forth when amounts become due and when they must be paid.  Failure to comply with the terms of the contract can render the party in breach liable for damages (including attorney fees if the contract so provides) to the party entitled to payment.

Florida’s construction lien statutes also provide for timely payment on construction projects.  The failure to make timely payments in accordance with this statute can be grounds for a suit and various remedies, including prejudgment attachment and attorney fees.  §713.346.

The statute specifically requires payment of undisputed amounts “in accordance with the terms of the contract.  §713.346(1).  The failure to make payment by the latter of: (1) thirty days after the labor, services or materials were furnished and became due and (2) thirty days after payment is received by the person obligated to pay the unpayed contractor, entitles the unpaid contractor to file a verified complaint in court and have an evidentiary hearing within fifteen (15) days written notice.  §713.346(2)-(4).  To the extent there are undisputed amounts due, a successful contractor is entitled to prejudgment attachment, any other appropriate legal or equitable remedies, and or attorney fees as a prevailing party.   §713.346(4)(a)-(d)&(7).

Contractors should contact a construction law attorney to establish procedures and ensure compliance with the lien statute’s requirements so that they (1) do not lose their lien rights, and (2) are not subjected to liability for the owner’s attorney fees for recording or attempting to foreclose on a claim of lien that is invalid for failure to comply with the lien statute.  Owners should also contact a construction attorney if they become aware of any potential dispute or claim of lien.

Failure to Timely Perform Work

Parties are generally required to comply with the terms of the contract, including terms setting forth when work is to be commenced, performed and completed.  Failure to comply with the terms of the contract can render the party in breach liable for damages (including attorney fees if the contract so provides) to the party entitled to performance of the work.

Moreover, unless the partied otherwise agree in writing, Florida's statutes require a contractor who receives more than ten percent (10%) of the contract price for work on residential real property to apply for a permit within thirty (30) days after payment is made and start work within ninety (90) days after all necessary permits are issued.  §489.126.  Moreover, a contractor who receives money that is worth more than the work performed cannot fail to perform any work on residential real property for ninety (90) days or more with the intent to defraud the owner (intent can be inferred by establishing certain facts that are set forth in the statute).  §489.126.

Contractors should contact a construction law attorney to draft a provision in their contracts waiving this statute or to establish procedures to ensure compliance with this statute.  Owners should also contact a construction attorney if they believe a contractor the owner hired has violated this statute.

Other Statutory & Common Law Provisions

Contractors should contact a construction law attorney to establish procedures and ensure compliance with these laws.  Owners should also contact a construction attorney if they believe a contractor the owner hired has violated these laws.

Contractor’s Right to Repair

Before filing a lawsuit against a contractor, subcontractor, supplier or design professional for a construction defect concerning real property, a claimant (such as a property owner) must comply with certain procedures, which may be modified by written agreement between the claimant and the recipient of a notice of claim after a notice of claim is received.  §558.003.  Failure to do so should result in abatement of the action until the property owner complies with this statute. §558.003.  However, the contract must contain a certain conspicuous notice, in capital letters and in substantially the same form as set forth in the statute. §558.005(1) & §558.005(4) (exceptions to rule).

Contractors should contact a construction law attorney to ensure full utilization of the benefits of this statute.  Owners should also contact a construction attorney if they believe a contractor’s work is defective.