Personalized Professionalism

Construction Liens

The Florida Construction Lien Law is entirely statutory, so unless a particular type of lien is expressly created by the statute it does not exist. It is a confusing statute for many, and no one improving property can ignore its provisions without coming to grief. While it is said that the state’s lien law is a statutory device to protect lienors that are not under contract directly with property owners (i.e., laborers, materialmen, subcontractors and sub subcontractors), a secondary purpose is to protect property owners from non privity claimants. The Florida Construction Lien Law is in "derogation" of the common law and therefore requires strict construction, and it does not apply to state or federal projects.

The Florida Construction Lien Law states that “owner” means a person who is the owner of any legal or equitable interest in real property, which interest can be sold by legal process, and who enters into a contract for the improvement of real property. The term does not include any political subdivision, agency, or department of the state, a municipality, or other governmental entity.

According to the Florida Construction Lien Law, a contractor is a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it, or who takes over from a contractor the “entire” remaining work under such contract. A subcontractor under the Construction Lien Law is a person other than a materialman or laborer who enters into a contract with a contractor for the performance of any part of such contractor's contract, including the removal of solid waste from the real property. The term includes a temporary help firm as defined in '443.101, Fla. Stat. A sub subcontractor is a lienor that enters into a contract with a subcontractor (including for the removal of solid waste) and cannot be a materialman or laborer. A laborer is any person other than an architect, landscaper, engineer, land surveyor and the like who, under a properly authorized contract, personally performs, on the site of the improvement, labor or services. The laborer is a lienor who does not furnish materials or the labor service of others. Section 713.01(20), Fla. Stat., defines a materialman as: “[A]ny person who furnishes materials under contract to the owner, contractor, subcontractor or sub subcontractor on the site of the improvement or for direct delivery to the site of the improvement or, for specially fabricated materials, off the site of the improvement for the particular improvement, and who performs no labor in the installation thereof.” Thus, a materialman to another materialman is not a lienor. Additionally, a lien cannot be obtained for an “over the counter” sale not specifically for direct delivery to a particular site of an improvement.

The Florida Construction Lien Law also provides a lien for professional services. A professional lienor may acquire a lien for the preparation of plans and other services in connection with improving real property. Also, the professional lienor has a lien for their services in “supervising" any portion of the work of improving the real property rendered in accordance with their contract and with the direct contract.