Home>Levelset Community>Legal Help>I am unclear on the Notice to Owner laws in Florida. If I have not sent and NTO to the homeowner, have I waived my lien rights? I am the primary contractor on the job, am I still required to send the NTO? Can I include the NTO in my signed contract instead of delivering it certified mail?

I am unclear on the Notice to Owner laws in Florida. If I have not sent and NTO to the homeowner, have I waived my lien rights? I am the primary contractor on the job, am I still required to send the NTO? Can I include the NTO in my signed contract instead of delivering it certified mail?

I am a mobile home installer in Florida. We contract directly with the homeowner to install the home and hook up utilities. I supply and pay subs to complete the electrical, plumbing and HVAC. I would like to know what happens in the event of non-payment and I have not sent an NTO. I would also like to know what I can do if the homeowner requires a lien waiver. I am unwilling to sign a lien waiver, it is sometimes my last hope to collect in the mobile home industry.

1 reply

Mar 6, 2019

These are excellent questions, and I'm glad to hear you'd like to be proactive to avoid payment disputes. Before getting too far along, I think these resources would be really valuable: (1) Understanding Florida’s Notice to Owner (NTO) Requirement; (2) Florida Lien & Notice FAQs; and (3) Florida's Lien Waiver FAQs. Anyway, let's take a look at (1) Who is required to send an NTO; (2) What happens if an NTO is required, but not sent; (3) How the NTO should be sent; and finally (4) Information on Florida lien waivers. For number (1): Any party who does not have a contract with the project's property owner must send a Notice to Owner (except for wage laborers). Parties that do have a contract directly with the property owner are not required to send an NTO. For number (2), when a Notice to Owner is required, but not sent - the party who was required to send notice will no longer maintain the right to file a valid and enforcible mechanics lien. While not technically a "waiver" of the right to lien - the failure to send an NTO does result in the loss of the right to file a valid and enforceable lien. For number (3), the Florida Notice to Owner is most traditionally sent by registered, Global Express Guaranteed, or certified mail, with postage prepaid. However, under § 713.18(1)(a) of the Florida mechanics lien statute, actual delivery of the notice is effective, regardless of how it's made. That means, as long as the notice actually reaches the required recipient(s) and that receipt can be proven, the notice can be made in some manner other than the mail described above. Further, in Florida, it's ok to send Notice to Owner early (as further mentioned in the Florida NTO article linked above). Finally, regarding number (4), let's talk about Florida lien waivers. When a lien waiver is requested prior to payment, a conditional lien waiver is a much safer option than an unconditional one. When a conditional lien waiver is submitted, it does not become effective until payment has been made. Meanwhile, an unconditional lien waiver will waive lien rights whenever it is submitted - regardless of whether payment is actually made. As mentioned in the question above - the right to file a mechanics lien is a great tool to recover payment - so prematurely waiving that right could make payment recovery a lot more challenging if a dispute takes place. For a deep dive on Florida lien waiver rules, this article should provide some valuable information: Florida Lien Waiver Forms and Guide.

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