One of the reasons construction lien law is so confusing to those in the construction industry is that the terminology used in the lien statutes to identify and describe the parties to the construction process differs from that which is commonly used. For example, the term “general contractor” is not used in the lien statutes, which instead identify anyone other than a materialman or laborer who enters into a contract with the owner for the improvement of real property as a “contractor.” Consequently, a trade performing work generally thought of as a “subcontractor”, such as electrical, plumbing, roofing, etc..., would be a “contractor” under the lien statutes if its contract was directly with the owner.

Only those persons or entities who are defined as “lienors” in Florida Statutes section 713.01(16) have the right to record a construction lien in Florida. These are:

1. A contractor (someone other than a materialman or laborer who enters into a direct contract with the owner of real property for improving it); or
2. A subcontractor (someone other than a materialman or laborer who enters into a contract with a contractor for the performance of any part of the contractor’s work, including the removal of solid waste); or
3. A laborer (any person other than an architect, landscape architect, engineer, or surveyor and mapper, and the like, who personally performs labor or services for the improvement of the real property, at the site of the real property. Note: temporary help companies are not laborers, but would be considered subcontractors or sub-subcontractors); or
4. A materialman with a contract with the owner, a contractor, a subcontractor, or a sub-subcontractor; or
5. A professional lienor (an architect, landscape architect, interior designer, engineer, or surveyor and mapper). If the professional lienor has a direct contract with the owner, lien rights exist even if the real property is not ultimately improved in accordance with the plans or designs developed as part of the professional services rendered.

Sub-sub-subcontractors, a materialman to a sub-sub-subcontractor, a materialman to a materialman, and a materialman to a professional lienor, all have no lien rights, nor does anyone further down from them in the chain of contracts originating with the owner.

If there are federal, state, and/or local licensing requirements for the lienor's work or business, the lienor must be properly licensed in order to have valid and enforceable lien rights. An amendment to Florida Statutes section 713.02 was enacted by the Florida Legislature in 2005 to clarify that if a construction contract is rendered unenforceable due to one party to the contract being an unlicenced contractor, subcontractor, or sub-subcontractor, the unenforceability of the contract does not deprive other properly licensed parties of their lien rights on the project.

In order for a lienor to have lien rights, the party entering into any contract for the improvement of the property as the owner must either have an ownership interest in the property at the time that the improvements commence, or must acquire an ownership interest in the property thereafter. For example, if a seller of real property contracts for the improvement of the property, but conveys title to the property at closing prior to the commencement of the improvements, the party making the improvements will not have lien rights. This requirement can often be problematic in light of the increase in the use of building inspections by prospective purchasers as a condition of the contract for the purchase of real property. Often, sellers agree to have certain repairs performed as a condition of closing. If these repairs do not commence prior to the conveyance of title at closing, the party making the improvements may be left with no lien rights and no recourse other than a breach of contract claim against the former owner who may no longer even reside in the State of Florida.

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DISCLAIMER AND CAUTION: THESE MATERIALS ARE PROVIDED FOR GENERAL INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED NOR SHOULD THEY BE CONSTRUED AS LEGAL ADVICE AS TO ANY PARTICULAR SET OF FACTS OR CIRCUMSTANCES. DUE TO THE COMPLEXITY OF THE CONSTRUCTION LIEN LAW STATUTES AND THE CASES INTERPRETING AND APPLYING THE STATUTES, IT IS RECOMMENDED THAT COMPETENT LEGAL COUNSEL BE CONSULTED IN REGARD TO ANY QUESTIONS AS TO THE APPLICABILITY OF CONSTRUCTION LIEN LAW TO ANY SET OF PARTICULAR FACTS.