Notice to Owner: Always Necessary?
All contractors actively engaged in construction work are undoubtedly familiar with Notices to Owner – that section in most mechanics’ lien statutes which outlines what a materialman, laborer, subcontractor or sub-subcontractor, who is not in privity with the owner, must do to perfect his lien rights in order to record a claim of lien. The notice must set forth the lienor’s name and address, a description of the real property, and the nature of the services or materials furnished or to be furnished. Simple enough, but the more significant issues surrounding Notices to Owner stem from their timing component. The law is unwavering in holding that a failure to timely serve such a notice when required is a complete defense to enforcement of a lien. Therefore, prudence dictates that a lienor understand the timing requirement of a notice to owner and comply with all deadlines irrespective of where he stands in the chain of interested parties.
In Florida the applicable statute mandates that the notice to owner be served no later than the earliest of the following: (a) 45 days from first furnishing of his labor, services or materials, or (b) before the making of final payment in reliance upon a final contractor’s affidavit.
But is a notice to owner always necessary? It depends on whether you are in privity of contract with the owner – if you are, then you are not obligated to send a Notice to Owner and you can move on. If you are not, you must then comply with applicable statutes as early as possible to ensure that you timely file your notice and preserve your lien rights. Notwithstanding your conclusion, always err on the side of caution and file a Notice to Owner even if you are uncertain you need to do so.
However, if you conclude that you are definitely not in privity of contract with the owner and you find yourself outside the proper timeframe for filing a Notice to Owner, don’t lose heart. First off, know that even the most diligent and meticulous lienor can find himself in this precarious situation. For example, let’s say you are a subcontractor who has been performing work under a contractor’s direction and the contractor has held himself out as the owner from the commencement of the project. After a few months, well past the prescribed notice period, you come to learn that the contractor is not really the owner. Now, the timeframe for sending a timely Notice to Owner has passed and you are left scrambling for armor.
First know that there are situations which preclude the necessity of sending a Notice to Owner. A subcontractor doing work for a bonded contractor – a contractor who posts a bond pursuant to statute, committing to pay for labor, services, and material used to improve the real property, may not have to file a Notice to Owner. You can easily determine if your contractor is bonded since the owner is required to attach a copy of the bond to the Notice of Commencement (the Notice of Commencement is the first document to be recorded in the sequence of documents necessary to enforce a construction lien). But, it is important to note that this exception only applies to lienors who are in privity with the contractor. Lienors who are not in privity with the contractor are still required to file a preliminary notice after first work as called for under applicable statutes.
Another instance where filing a Notice to Owner may not be necessary occurs when the contractor and owner have a “common identity.” In such cases, the law has in many states carved out an exception relieving a subcontractor of its obligation to give a formal notice to owner as a prerequisite to establishing a mechanic’s lien. It is important to understand that questions of privity and common identity are factual in nature. These cases have varied results based on their particular facts but much can be learned from Florida’s Supreme Court, which in 1992 opined as follows:
The purpose of serving notice to an owner is to protect an owner from the possibility of paying over to his contractor sums which ought to go to a subcontractor who remains unpaid. Because the purpose of serving notice is to alert the owner to guard against double payment, such notice will be excused only when privity exists between the owner and the subcontractor.
Thus, we find that privity exists either when the owner knows a subcontractor is working on the job and that owner has assumed the contractual obligation for the work or when the owner and contractor share a common identity. In either situation, notice is not required.”
When is a Notice to Owner not Necessary
A Notice to Owner is also not necessary in most jurisdictions where the lienor is an architect, landscape architect, interior designer, engineer, or surveyor and mapper and their professional services are performed pursuant to or under a direct contract with the owner. Moreover, a professional lienor who has a direct contract with the owner may be entitled to a lien, even though the property is never actually improved. In addition, it is not necessary that there be a face-to-face personal meeting between owner and professional to constitute a “direct contract.” Owners can become obligated through acts of their authorized agent. It is noteworthy that although a Notice to Owner is not necessary for these particular lienors, the professional lineor is still required to adhere to other statutory requirements, such as recording its Claim of Lien within the statutory number of days of last work and to serve a copy of that lien on the owner within a certain number of days of recording.
Finally, most states specifically except laborers from the requirement of filing a Notice to Owner. A “laborer” is generally defined as any person other than an architect, landscape architect, engineer, surveyor, mapper and the like who, under properly authorized contract, personally performs on the site of the improvement labor or services for improving real property and does not furnish materials or the labor service of others. To be a proper laborer under this exception, he or she must have a contract with a subcontractor, owner, general contractor, or materialman on the project. The logic for exempting laborers from the Notice to Owner requirement stems from the theory that an individual laborer is unlikely to work long without pay and, consequently, is unlikely to have a large hidden claim.
In conclusion, courts have come to expect and demand strict compliance with their state’s lien laws. To that end, it behooves all potential lienors to know the intricacies of such statutes and to timely adhere to their notice requirements. Knowledge and fast action here could be the difference between protecting or losing a valid lien.
The Florida Supreme Court has analyzed the time component for serving a Notice to Owner “pursuant to an authorized contract.” The case involved a landscaper who was requested by the owner to fly with him to view a particular type of palm tree that the owner wanted on his project. The landscaper selected and tagged several trees. Weeks later, the landscaper received a contract and began digging holes and planting the trees at the project site. The landscaper was not paid, recorded a lien and sued the owner to enforce his lien. The owner defended by alleging that the Notice to Owner was not served within 45 days of when the landscaper tagged the trees in the other city. The landscaper argued that the tagging of the trees was only done in anticipation of receiving a contract, and that the triggering date was when the landscaper began digging and planting trees at the site pursuant to the contract. Both the Fourth District Court of Appeal and the Florida Supreme Court agreed with the landscaper that the time began to run from the date the labor or materials commenced at the site pursuant to an authorized contract.