The
Notice To Owner can be served before the lienor commences
to furnish the services or materials for the improvement,
but must be served no later than forty-five (45)
days after commencing to furnish the services or materials.
There
are several significant potential traps for the unwary lienor
in regard to the timing of the service of the Notice To
Owner. In the case of rental equipment, suppliers should
be aware that the date of first furnishing is the date the
equipment is first delivered to the site, not the date that
the equipment is first used or even the date that the equipment
is assembled and functionally available for use. For suppliers
of specially fabricated materials, i.e., materials that
are not generally suited or readily adaptable to use in
a like environment, the date of first furnishing of the
materials is the date the lienor commences the manufacturing
of the materials, even if the fabrication takes place off-site.
Material
suppliers who sell non-specially fabricated materials over
the counter, as opposed to delivering the materials to the
project site, do not have lien rights for the value of the
materials sold over the counter. Where the material supplier
first sells materials for a project over the counter and
then subsequently delivers materials to the project site,
a Florida Supreme Court decision in 1995 disapproved a lower
appellate court decision that held that the forty-five (45)
day period began to run as of the date of the first over
the counter sale. The Florida Supreme Court opinion stated
that owners and material suppliers are both better protected
by calculating the forty-five (45) day period from the date
of the first delivery of materials to the site.
For
all lienors required to serve a Notice To Owner, the Notice
To Owner must be served prior to the date that the owner
makes the final payment to the contractor in reliance upon
the Contractor’s Final Affidavit.
Extreme
caution should be exercised in complying with the time requirements
for service of the Notice To Owner as this is an area where
lien rights are frequently lost. Prior to the 1998 amendments
to Florida Statutes section 713.18(1)(a) which relates
to service by certified or registered mail, the date of
“service” - the critical date to determine the
timeliness of delivery was determined as follows:
- It
is the date of actual delivery in the event the recipient
accepts the delivery and signs the certified or registered
postal receipt; or
- It
is the date of mailing in the event that the Notice To
Owner is returned as undelivered with the words “refused,”
“moved, not forwardable,” “unclaimed,”
stamped on the envelope by the U. S. Postal Service, or
is otherwise not delivered or deliverable through no fault
of the person serving the item.
As
a result of the 1998 amendment to the statute, service by
registered or certified mail is now deemed to be effective
as of the date of mailing, even if not physically delivered
or signed for until after the expiration of the forty-five
day period, if the following conditions
are met:
- The
Notice To Owner must be mailed within forty (40)
days after the date of first providing labor, materials
or services; and
- The
lienor must maintain a registered or certified mail log
that shows the date the notice was mailed, the registered
or certified mail number issued by the U.S. Postal Service,
the name and address of the person served, and the date
stamp of the U.S. Postal Service confirming the date of
mailing.
The
purpose behind the 1998 amendment was to provide a procedure
to eliminate the uncertainty that existed previously where
a Notice To Owner could have been timely mailed, but the
recipient could delay signing for receipt of the Notice
To Owner until after the expiration of the forty-five (45)
day period.
For
purposes of calculating the forty-five (45) days, the first
day a prospective lienor provides labor, services or materials
is not counted and if the forty-fifth (45th) day falls on
a Saturday, Sunday or legal holiday recognized by Florida
Statutes, the deadline for service of the Notice To
Owner is extended to the next day that is not a Saturday,
Sunday or legal holiday.
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