Written by: Attorney, Matthew Toll at Lusk, Drasites, Tolisano & Smith P.A.

Frankly, with today's housing market, the only way to obtain 100% complete assurance of payment in full is to require the General Contractor or ultimate customer pay you before you begin your work. However, since this is rarely possible in today's buyer's market, there are still many things that can and should be done to protect yourself against the risk of non-payment.
Under Florida lien law, you are given substantial protection, so long as you follow the right steps. Although it may seem complicated, once you become used to protecting yourself, you'll wonder why you failed to do so in the past. As a subcontractor, the only time you should ever find yourself without payment is when you do work on a home that is ultimately foreclosed upon and where the property is worth less than mortgagees with a higher priority than you.
First and foremost, before you ever begin work, always file a "Notice to Owner". The purpose for filing a "Notice to Owner" whenever you perform services that improve real property is to put the owner of real property on notice that you or your company, as the subcontractor (or sub-subcontractor) has a lien on the owner's real property for the services, labor or materials you provide. As such, if you don't receive payment for such services (even if the property owner paid the contractor), you can foreclose, thus providing security to satisfy a future judgment if you need to bring suit to be paid.
In order to perfect your lien, you must first have the Notice to Owner recorded in the public records in the county that the real property is located. The Notice to Owner must include your name and address, a description sufficient for identification of the real property and the nature of the services you will provide.
After you have filled it out, you must record the "Notice to Owner" and, after filing same, you will receive the "recorded" Notice back. After you have received the recorded Notice to Owner, you must serve a copy of it the Contractor and Owner. If you are a "material man" to a sub-contractor, you must serve the Notice to Owner on the contractor, subcontractor and Owner. The Notice must be served before commencing the work, or no later than 45 days after commencing the work, but in any event before the date of the Owner's disbursement of the final payment after the contractor has furnished the Contractor's Final Affidavit.
Additionally, the owner may designate in his or her Notice of Commencement a person (in addition to himself or herself) to receive a copy of the Notice to Owner. Therefore, I advise you to check the Notice of Commencement, which can be located in the public records, to see if the Owner did designate a second party before serving a Notice to Owner. A failure to provide the Notice to Owner to this second party should not invalidate an otherwise valid lien, but the more parties that are aware of your potential lien, the more likely it is that you will be paid for your services. In order to "serve" a Notice to Owner, you can have said notice delivered to the party or you can send it certified mail, return receipt requested. Please review Florida Statute § 713.18 for information on alternate methods of service.
Okay, let's say you've done everything right. You required a deposit. You filed and served a "Notice to Owner" upon everyone you were supposed to serve. You've done the job competently and on a timely basis. However, at the end of the job, you don't receive payment. Your calls and letters requesting payment are ignored. Now what?
The next step is a "Claim of Lien" pursuant to Florida Statute § 713.08. A "Claim of Lien" needs to be recorded and served in the unfortunate event you have not been paid for your work. The "Claim of Lien" can be recorded at any time during the progress of the work or thereafter, but no later than 90 days after you have finished the work. The "Claim of Lien" must be recorded and served on the owner. It must be served on the owner before recording, contemporaneously with recording, or within 15 days after recording. The service and the method of recoding is the same as stated above.
The "Claim of Lien" is good for one year from the date of recording and if you are not properly paid within that time period, you must file a suit prior to the one year expiration date in order to seek payment from the owner.
Please be advised that the foregoing does not constitute legal advice and this office assumes no liability associated with any one's reliance on same. The construction lien laws are constantly in a state of flux, and, even in the absence of any change in the law, your case may fall within an exception to any of the rules outlined above. If you are a subcontractor and you feel you have a claim for unpaid work, please schedule a consultation with one of our associates today at Lusk, Drasites, Tolisano & Smith P.A.