Legal Question in Construction Law in Florida

Re: Notice of Commencement

NOTE: This communication is not intended as and should not be interpreted as legal advice. Rather, it is intended solely as a general discussion of legal principles. You should not rely on or take action based on this communication without first presenting ALL relevant details to a competent attorney in your jurisdiction and then receiving the attorney�s individualized advice for you. By reading the �Response� to your question or comment, you agree that the opinion expressed is not intended to, nor does it, create any attorney-client relationship, nor does it constitute legal advice to any person reviewing such information, nor will it be considered an attorney-client privileged communication. If you do not agree, then stop right here, and do not read any further.

RESPONSE: The purpose of the Notice of Commencement, is to signify the initiation of the constrution project. The recording date is the anchor point from which the lienors may assert an enforceable interest in realty. The general rule is that a lienor does not have to prove that a NOC has been recorded in order to enforce a construction lien against the owner's real property. See Design Alum. Inc. v. DeSanti, 521 So.2d 285 (Fla. 2nd DCA 1988). For example, if a NOC is filed on 1/1/04 and the claim of lien is filed on 9/25/04 then the lien relates back to 1/1/04. However, if there was no Notice of Commencement, then the lien would take affect on 9/25/04 - the date the lien was filed thereby possibly subordinating your interest to anyone who came and gave a mortgage or contracted after 1/1/04 and before 9/25/04.

You are right Fla. Stat. 713.13(1)(a), an owner or the owner's authorized agent is required to record a notice of commencment. However, Florida Statute 713.13(1)(g) provides that "The owner must sign the notice of commencement and no one else may be permitted to sign in his or her stead."

If you question whether the tenant is an authroized agent, then have the owner sign authorizing the tenant to receive and provide all notices regarding construction on the project, or simply have the owner execute and record the Notice of Commencement (although typically the contractor records the notice of commencement).

You should also review Fla. Stat. 713.10 regarding doing projects for tenants. There was not enough room to reprint it here.

In addition, be aware that effective October 1, 2003 the laws have changed and you need to provide mandatory disclosures to residential owners you are directly in contract with or you will not be able to assert any lien rights! Should you need further assistance you may contact the undersigned.

Yours truly,

Randall Gilbert