Florida Court Clarifies When Contractor's Final Payment Affidavit Must be Delivered Pre-Suit

Florida’s construction lien laws require a contractor to serve a contractor’s final payment affidavit “at least five days” before filing a lawsuit to enforce the lien. A general contractor recently had its lien rights reinstated when a court clarified how the number of days between the service of the affidavit and the filing of the lawsuit should be calculated and reversed a dismissal of the contractor’s lawsuit.

While the full details of the case are below, the key takeaway is that contractors and construction attorneys alike must pay close attention to when and how to calculate deadlines based not only on the language in Florida’s Construction Lien Law, but also the Florida Rules of Judicial Administration. And while this case doesn’t describe how close the contractor was to his lien foreclosure deadline, it also serves as a good reminder that it pays to be conservative when calculating deadlines and acting quickly to enforce lien rights.

A. Alexis Varela, Inc. d/b/a The Varela Construction Group v. Pagio arose from a home remodeling project. At the conclusion of the project, the homeowner refused to make final payment, claiming the work was not completed timely and that the quality of the work was poor. The contractor, in turn, filed a construction lien against the property for $17,359.

On May 5, 2021, the contractor served its final payment affidavit. On May 10, 2021, the contractor, through counsel, filed a lawsuit to foreclose on the construction lien. The homeowners filed a lawsuit to dismiss the complaint, arguing that the earliest the lawsuit could have been filed was May 11, 2021, and the lawsuit should be dismissed for failure to comply with a condition precedent. The trial court agreed, and dismissed the contractor’s lien foreclosure lawsuit.

On appeal, the Fifth District Court of Appeal reversed the trial court’s decision, and reinstated the contractor’s lien foreclosure action. In reaching this conclusion, the court evaluated Florida’s procedural rules governing how time periods should be calculated, and determined that the statute did not require “five clear days” between the service of the affidavit and the filing of the lawsuit. Rather, in Florida, the rules require that either the start day or the end day can be excluded from the calculation, but not both. Thus, if service happened on May 5, 2021, filing the lawsuit on the 10th was acceptable.

Again, contractors should treat this case as a cautionary tale to act quickly when enforcing lien rights and err on the side of caution when calculating deadlines.