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What are the legal consequences if the GC was not included in a Florida NTO and didn't received the NTO?

Florida

Levelset couldn't find the GC in their research and Americut didn't provide one because we didn't who is the GC. The project has been halted and we are doing a lien to protect our rights. Our customer is not getting paid. Are our lien rights affected by not including and sending the NTO to the GC?

2 replies

May 20, 2020

Your lien rights are going to be impacted by your failure to send a copy of the NTO to the contractor. Florida Statutes 713.06(2)(a) requires a sub-subcontractor to serve the NTO on the contractor as a pre-requisite.

I am unable to determine from the inquiry when sub-subcontractor’s work began. This is important because the statute provides 45 days from commencement to serve the NTO so there may still be time. Additionally, if the Owner hasn’t disbursed final payment to the contractor there may still be time to file the NTO.

What steps, if any, has sub-subcontractor made to investigate at the county level to determine who the contractor is. I would imagine that a permit must have been pulled. Perhaps that is the place to start to learn this information. Best of luck.

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May 20, 2020

David is right that you should look at whether you are still within 45 days of first furnishing and, if so, find out ASAP by any means the name of the GC (it should not be hard to figure out) and then serve NTO on the GC. However, if you are outside 45 days, you may still be in luck. The lien statute does require that you serve an NTO on the contractor as a "prerequisite" to perfecting a lien. However, the statute also provides that, where you substantially comply with the NTO requirement, "errors or omissions do not prevent the enforcement of a claim against a person who has not been adversely affected by such omission or error." In this case, if the Owner received your NTO, then the Owner arguably is not prejudiced even if the GC was not aware of your notice. In this case, the Owner should have forwarded the NTO to the GC and asked for a waiver from your company. It's still the better practice to always copy the GC. And anything can happen in court. But I think you have a good argument here.

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