What is a Contractor’s Final Affidavit (and when do I need to send one)?

Alex BarthetContracts, Getting Paid

A contractor’s final affidavit is a document advising the owner of a property that the contractor is asking for final payment. The document lists any unpaid lienors. If there’s nobody that has lien rights and unpaid, there’s a section in the form to indicate that.

Know that this form titled contractor’s final affidavit and found in Florida’s lien law statute only needs to be sent by those that have a direct contract, also known as privity, with the owner. This means that you do not need to send a contractor’s final affidavit if you are a subcontractor because your contract is with the general contractor and not the owner. It is, however, important to note that if you’re a plumber, for example, and you have a direct contract with the owner, you are considered a contractor under the lien law. And as such, you would need to send a contractor’s final affidavit because you have a direct contract with the owner. Whether or not you are required to send a contractor’s final affidavit is less about the scope of work that you provide, but more about where you sit contractually with respect to the owner.

The contractor’s final affidavit while sworn under oath is different from a sworn statement that is sometimes requested by an owner or a contractor. While both documents are similar, they are not the same document.

What must a contractor’s final affidavit contain?

A contractor’s final affidavit must contain the name of the owner and the contractor. It also needs to have a statement saying that the contractor has completed the work, and it should list the amount that is currently due to the contractor. The contractor’s final affidavit is typically accompanied with the lien, but you can also send the contractor’s final affidavit before a lien is recorded.

This document also needs to include a statement that all the lienors have been paid, and it must list the name and the amount of any unpaid lienors. Finally, this document must be drafted and signed under oath before a notary.  Here is a sample of the document.

CONTRACTOR’S FINAL PAYMENT AFFIDAVIT

State of Florida, County of _____

Before me, the undersigned authority, personally appeared (name of affiant), who, after being first duly sworn, deposes and says of his or her personal knowledge the following:

  1. He or she is the (title of affiant), of (name of contractor’s business), which does business in the State of Florida, hereinafter referred to as the “Contractor.”
  2. Contractor, pursuant to a contract with (name of owner) , hereinafter referred to as the “Owner,” has furnished or caused to be furnished labor, materials, and services for the construction of certain improvements to real property as more particularly set forth in said contract.
  3. This affidavit is executed by the Contractor in accordance with section 713.06 of the Florida Statutes for the purposes of obtaining final payment from the Owner in the amount of $_____.
  4. All work to be performed under the contract has been fully completed, and all lienors under the direct contract have been paid in full, except the following listed lienors:

NAME OF LIENOR____________________AMOUNT DUE

Signed, sealed, and delivered this _____ day of _____, _____,

By (name of affiant)

(title of affiant)

(name of contractor’s business)

Sworn to and subscribed before me this _____ day of _____ by (name of affiant), who is personally known to me or produced _____ as identification, and did take an oath.

(name of notary public)

Notary Public

My Commission Expires:

(date of expiration of commission)

 

You can get this and many other forms here.

When do you need to send one?

As stated earlier, you only need to send a contractor’s final payment affidavit if you have a direct contract with the owner and when you are requesting final payment.  It’s not required from material suppliers that only provide materials and no labor even if they have a direct contract with the owner. For example, a roofing supply house providing roofing tiles for a project and directly contracted to the owner is not required to send a contractor’s final affidavit when submitting a request for final payment. But it is highly recommended that you do. It doesn’t prevent your lien rights from maturing.

If you are a contractor and you are obligated to send a contractor’s final affidavit to the owner,  you need to send one no later than five days before you foreclose on your lien. If you don’t send it within that time period, then you will lose your lien rights.

The only other time you need to send the contractor’s final affidavit is if the notice of commencement on the project is terminated.  That typically happens during the course of a project when financing comes midway through the job.

Why is it important for subcontractors and material suppliers?

As stated earlier, a subcontractor, a plumber for example, is required to send a contractor’s final affidavit if they are in direct contract with an owner. You need to make sure that you’re aware of this requirement so that you don’t lose your lien rights.

It is important to know about this document even when you are not in direct privity with the owner.  This is because if an owner pays a general contractor without getting a contractor’s final affidavit, then that payment is considered “improper” under the law. How is this important to you as a subcontractor? “Improper” payments may require the owner to pay twice if the contractor or subcontractor did not pay the subcontractors, sub-subcontractors or material suppliers. Here is an example. If the owner makes a final payment to the contractor and the owner doesn’t receive a contractor’s final affidavit in exchange for that final payment, then if the contractor doesn’t pay the subs, the subcontractors still retain their lien rights. So, if you’re a subcontractor or a sub-subcontractor or a material supplier and you file a lien, but the owner is insisting that he does not owe you because he has already paid the contractor, one of the things you can do is to ask the owner for a copy of the contractor’s final affidavit he received when he issued the final payment. If he can’t produce this, then you have a right to record the lien.