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“LET’S COMMENCE” — A GENERAL OVERVIEW OF FLORIDA’S NOTICE OF COMMENCEMENT STATUTE

In general, an owner (or an owner’s agent) is required to record a Notice of Commencement in the clerk’s office and post either a certified copy of the recorded Notice of Commencement or a notarized statement that said notice has been filed for recording along with a copy thereof.  See Fla. Stat. § 713.13(1)(a). The notice of commencement must contain the following information:

  • a description sufficient for identification of the real property to be improved. This description must include the legal description of the property and also must include the street address and tax folio number of the property, if available, or, if there is no street address, such additional information as will describe the physical location of the real property to be improved.
  • a general description of the improvement(s);
  • the name(s) and address(es) of the owner(s), the owner’s/owners’ interest in the site of the improvement, and the name(s) and address(es) of the fee simple titleholder(s), if other than such owner(s). A lessee who contracts for the improvements qualifies an “owner” as defined under § 713.01(23) and must be listed as the owner together with a statement that the ownership interest is a leasehold interest;
  • the name and address of the contractor;
  •  the name and address of the surety on the payment bond under § 713.23, if any, and the amount of the bond;
  • the name and address of any person making a loan for the construction of the improvements; and
  • the name and address within the state of a person (other than the owner himself or herself) who may be designated by the owner as the person upon whom notices or other documents may be served under this part.        (Note– service upon such person constitutes service upon the owner).

The purpose behind a Notice of Commencement has been explained as follows:

[t]hough the Notice of Commencement was originally required to trigger a commencement date from which to measure time limitations under the Mechanic’s Lien Law, the information contained in the Notice of Commencement provides all the details necessary to complete a Notice to Owner. Indeed, Section 713.13(1)(a), Florida Statutes, requires with Notice of Commencement information including the name and address of the owner and contractor. Thus, the legislature contemplated that the Notice of Commencement would provide the lienor with the current names and addresses of the owner and contractor, so that the lienor could properly mail the Notice to Owner. If no Notice of Commencement was ever posted or recorded by the owner as mandated by the statute, a lienor may have difficulty obtaining the names and addresses of the owners and contractor.[[1]]

Sasso Air Conditioning, Inc., v. United Companies Lending Corporation, 742 So.2d 468, 470 (Fla. 4thDCA 1999) (citing cases).

Other than the purpose stated above, a Notice of Commencement also signals the beginning of a construction project.   See Gulfside Properties Corp. v. Chapman Corp., 737 So.2d 604, 607 (1stDCA 1999). This is attributable to Fla. Stat. § 713.01(5), which provides that the “commencement of the improvement” is defined as “the time of filing for record of the notice of commencement provided in . . . [§] 713.13.”

As a final reminder, the failure by an owner to file a Notice of Commencement does not relieve a contractor, subcontractor or supplier from satisfying the mechanic’s lien statute’s notice requirements.  See, e.g., Professional Plastering & Stucco, Inc., v. Bridgeport-Strasberg Joint Venture, et al., 940 So.2d 444, 449 (Fla. 5th DCA 2006).  Accordingly, the failure to adhere to the requirements of the mechanic’s lien statute will still prevent recovery under a construction bond, even if the owner failed to file a notice of commencement. See Mursten Constr. Co. v. C.E.S. Industries, Inc., 588 So.2d 1061 (Fla. 3rd DCA 1991).

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[1] A Notice of Commencement is to provide potential lienors and other third parties with the information they will need to prepare necessary notices and related documents under Florida’s mechanic’s lien statutes to place owners and others on notice of any liens filed against the property. See Gulfside Properties, infra at 607.

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