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Ask And Ye Shall Receive

By: Brian P. Deeb

One of the best forms of security for any general contractor, subcontractor, laborer, or supplier is the construction lien against the real property upon which labor or materials have been furnished. It is axiomatic that a lien can only be perfected (and thus, enforceable) if certain very specific and very stringent requirements are followed. These include the furnishing of certain notices within very specific time periods.

Too often the provider of labor or materials does not have sufficient information to provide the required notices, such as the ownership information, the bonding company information (if any) or the legal description to the property. It is the “lienor’s” responsibility to provide proper notices that contain all of the required information. Therefore, it is the responsibility of lienor to gather this information at the earliest possible date. Here are some starting points:

(1) The Notice of Commencement: This is the easy one – only if it has been properly recorded and posted at the job site. Pursuant to Chapter 713, it is the owner’s responsibility to record and post the Notice of Commencement. This document contains virtually all of the information you need for required notices including (a) the owner(s) full name, address and interest in the property; (b) a sufficient description of the property for identification (legal description, parcel number, street address, etc); (c) the general contractor’s name and address; (d) the name and address of any surety; and (e) the name and address of any additional (or alternate) persons upon whom to serve notices (eg. lender, attorney, etc.).

Since non-privity lienors only have 45 days from the first date of furnishing labor and materials to file a Notice to Owner, it is imperative that all of this information be obtained as quickly as possible.

First, check the job site near where the Building Permit is posted. If a copy of the recorded Notice of Commencement is there, your search is over. If it is not, ASK!!! Talk to the party with whom you have your contract – whether it be the general contractor, a subcontractor or the owner. If that party can’t provide the information as to the existence of (or where to obtain a copy of) the Notice of Commencement, go right to the Owner – and ASK.

The problem becomes more difficult when you don’t know who the Owner is or how to get in touch with the Owner, and you are getting no cooperation from anyone on the project. Even in the absence of a posted Notice of Commencement, you must still ascertain whether a Notice of Commencement has been recorded. Unfortunately, existing case law provides no excuse for late notices where a Notice of Commencement has been recorded EVEN if the Notice was not properly posted on the job site.

Without ANY ownership information call the County Property Appraiser’s office and provide a street address to the property. They will provide to you (usually telephonically) the complete legal description and the owner(s)’ name and address. This is not always 100% accurate but is the best starting point. With this information, the Public Records Clerk (at the courthouse) will assist you in looking up the owner’s name in the Public Records Index which will lead you to the recorded Notice of Commencement, if it exists.

(2) ALTERNATE SOURCES OF INFORMATION: Chapter 713, provides that you are entitled to rely on information contained in the Uniform Building Permit Application in the absence of a recorded Notice of Commencement. Go to the applicable building department and ASK for the Application. This application will provide much the same information as the Notice of Commencement would have provided.

Additionally, Chapter 713 allows you to demand a copy of the contract between the party you have contracted with and the next tier (i.e. subs may get copies of contracts between GC and Owner; Supplier to Sub may get copies of contract between that sub and the GC, etc.). There are also provisions for demanding copies of any applicable Payment Bond under either Chapter 713 (private jobs) or Chapter 255 (public jobs). Although these demands must be in a certain format, all you must do is ASK and the party to whom the demand is directed is required by law to timely respond (usually within 30 days).

Since much of the foregoing may take some time to accomplish, the strongest recommendation is that you begin the “asking” process at the beginning of the job – not at the end and not when your draw is held up for the first time. By then – it may be too late!!