June 3, 2022

Contractor’s Final Affidavit Timely Says Appellate Court

As most construction practitioners know, when final payment is due under a direct contract with an owner, the contractor must, as a condition of perfecting its lien rights, deliver a final payment affidavit to the owner “at least five days” prior to commencing legal action to foreclose on its lien. That language was at the center of a dispute in the case of Alexa Varela, Inc. d/b/a The Varela Construction Group v. Dominic Pagio and Julia Pago, Case No. 5D21-2077 (Fla. 5th DCA May 20, 2022).

In Varela, the contractor sued to foreclose on its lien but was denied recovery because the trial court ruled that its final payment affidavit was not timely served prior to filing suit. However, the Fifth District Court of Appeal disagreed when it clarified how the number of days between the service of the affidavit and the filing of the lawsuit should be calculated.

Varela contracted with the Pagios to perform re-modeling work on their home. When Varela completed the work on May 5, 2021, the couple withheld final payment claiming the work was not performed on time or in a “workmanlike” manner. Varela served its final payment affidavit the same day, and thereafter filed suit on May 10, 2021.

There was no question whether Varela completed its work; the dispute was whether service of the affidavit—on May 5, 2021—met the requirements of section 713.06(3)(d), Florida Statutes, that provides, “[t]he contractor shall execute the affidavit and deliver it to the owner at least 5 days before instituting an action as a prerequisite to the institution of any action to enforce his or her lien under this chapter.” The Pagios claimed, and the trial court agreed, that the affidavit was served one day too late.

In reversing the trial court, the appellate court ruled that when considering an amount of time where “at least” a specified number of days must pass before an event, the exclusion of one of the terminal dates and the inclusion of the other is required. Because the affidavit was delivered on May 5th, the appellate court held that it was timely, even though five full days had not expired.

Florida’s Construction Lien Law imposes very specific requirements on both property owners and potential lienors. Failure to follow the law can result in the loss of lien rights, or an owner having to pay twice for the same improvements. Contractors, owners, and their lawyers should be mindful of these requirements and the statutory prerequisites to enforcing a construction lien.

Gary Brown is a Partner and the Head of the firm’s Construction Practice Group at Kelley Kronenberg. Gary focuses his practice on construction defect litigation and complex commercial litigation.

Contact Gary Brown at:
Phone: 844-632-4357
Email: gbrown@kklaw.com

DISCLAIMER: This article is provided as a courtesy and is intended for the general information of the matters discussed above and should not be relied upon as legal advice. Neither Kelley Kronenberg, nor its individual attorneys or staff, are responsible for errors, omissions and/or typographical errors – always seek competent legal counsel.