Florida Construction Lien Law FAQs: When Can a Lien Be Asserted?

By: Aaron Haak, Esq., Florida Board Certified Construction Attorney

A contractor completes work in Florida, submits invoices, and expects payment. Weeks pass. Then months. When payment still has not arrived, the immediate questions become clear:

“Can a construction lien be asserted, and if so, against what property interest?

These are foundational issues under Florida construction lien law, and the answers are not always as straightforward as they may appear.

This article is the first in a series addressing frequently asked questions about Florida construction lien and bond claims. It focuses on two threshold issues that must be addressed in every lien analysis: whether a construction lien may be asserted and what property interest may be subject to that lien.

What Is a Construction Lien Under Florida Law?

In Florida, a construction lien functions similarly to a mortgage on real property and serves as security for payment owed to a party that has provided labor, services, or materials to improve that property. A properly perfected construction lien encumbers the property itself.

By contrast, a construction bond claim does not encumber the property being improved. Instead, it provides a claim for payment against a surety bond posted for the project.

Understanding this distinction is critical for property owners, contractors, and construction professionals when evaluating payment rights and risk exposure.

What Laws Govern Construction Liens in Florida?

Florida construction lien claims are governed by Chapter 713, Florida Statutes, which establishes detailed requirements and strict deadlines for asserting and defending against a lien. Payment bond claims are governed by Chapter 255, Florida Statutes, which applies to public construction projects.

Both statutory schemes impose technical compliance obligations that can easily become traps for the unwary. Failure to follow these requirements precisely can result in the loss of lien or bond rights, regardless of the merits of the underlying payment dispute.

Can a Construction Lien Be Asserted in Florida?

Yes, but only under certain circumstances. A construction lien may only be asserted against privately owned property in Florida. Publicly owned property is exempt from construction liens. When work is performed on publicly owned property, claims for unpaid amounts must be pursued through a payment bond claim rather than a construction lien.

In addition, privately owned property may be exempt from construction liens if the owner has properly posted a payment bond for the project. When a payment bond is in place, lien rights are replaced by bond claim rights, and the property itself is no longer subject to lien encumbrance.

When are Construction Liens Are Not Permitted?

Florida law prohibits construction liens in several common circumstances. Improvements to publicly owned property are not subject to construction liens, and private projects may also be exempt when a valid payment bond has been properly posted. In addition, construction liens may be unavailable when statutory notice or timing requirements have not been satisfied. Because these exemptions are not always apparent at the outset of a project, early analysis is often essential before assuming lien rights exist.

What Role Does the Notice of Commencement Play?

The Notice of Commencement serves as the roadmap for determining lien rights on a Florida construction project. It identifies:

• The property being improved;
• The property owner and the owner’s interest in the property; and,
• Whether a payment bond has been posted in lieu of lien rights.

If the Notice of Commencement reflects that the property is not subject to construction liens, it will typically include the information necessary to perfect a payment bond claim instead.

What Property Interest Can a Construction Lien Encumber?

A construction lien may only attach to the interest in the property held by the party contracting for the improvements. When the contracting party is not the fee simple owner of the property, lien rights may be limited.

Can a Construction Lien Attach to a Leasehold Interest?

When a lessee contracts for improvements, a construction lien generally attaches only to the lessee’s leasehold interest. Whether a lessor’s ownership interest may also be subject to a lien depends on the nature of the improvements, the terms of the lease and whether the lessor has properly recorded a prohibition against liens attaching to its interest. If the lessor’s ownership interest is protected, the lien is limited to the lessee’s possessory rights under the lease.

How Do Construction Liens Apply to Condominium Common Elements?

Florida law treats improvements to condominium common elements differently. When work is performed on common elements at the direction of a condominium association, a construction lien does not attach to the common elements themselves.

Instead, under Chapter 718, Florida Statutes, the lien attaches to each individual condominium parcel on a pro rata basis. This statutory framework often surprises contractors and owners alike and requires careful evaluation before lien enforcement.

Can Subdivision Improvements Support a Construction Lien?

Florida law also recognizes certain circumstances in which improvements classified as subdivision improvements may support the imposition of a construction lien against abutting land or lands, even when the improved property is later dedicated for public use. These situations involve nuanced statutory and factual analysis and are frequently misunderstood.

Why These Basic Questions Often Require Deeper Analysis

What initially appear to be simple questions, “Can a construction lien be asserted and what property may be encumbered,” often require careful review of ownership interests, project documentation, statutory compliance, and recorded instruments. Mistakes at this early stage can materially affect rights, leverage, and outcomes.

Future articles in this series will address additional requirements and deadlines under Florida’s construction lien and bond laws.

If you are a property owner, contractor, developer, or construction professional with questions about Florida construction lien rights or payment bond claims, you may contact me at aaron.haak@henlaw.com to schedule a consultation and discuss your specific circumstances.