Florida Final Payment Affidavit: Appellate Court Clarifies 5-Day Timing

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A mechanics lien isn’t just a singular document, but rather a process. This is generally true in every state, including Florida. There are at least three different steps for Florida lien claimants, which each include a very specific deadline.

A recent case out of the Florida District Court of Appeals provided some clarity on how these deadlines are calculated — specifically the timing for direct contractors between providing a Final Payment Affidavit and filing a foreclosure action. What exactly constitutes five days?

Florida’s Contractor Final Payment Affidavit

Florida contractors that are hired directly by the owner (whether you’re a GC or a trade contractor) are required to provide the owner with a Final Payment Affidavit to the property owner.

This affidavit is meant to inform the owner that the work has been completed, and identify who has been paid in full. As far as when this affidavit should be given, it’s less of a deadline and more like a window. When final payment becomes due the affidavit must be provided to the owner, and it must be received at least five days before filing a lien foreclosure action.

‘ The contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit; however, the negligent inclusion or omission of any information in the affidavit which has not prejudiced the owner does not constitute a default that operates to defeat an otherwise valid lien. The 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, even if the final payment has not become due because the contract is terminated for a reason other than completion and regardless of whether the contractor has any lienors working under him or her or not. “

What’s unclear from this statute is how the five days are actually calculated. Does it require a full five days to pass before the claimant can file an enforcement action? Or can an enforcement action be filed on the fifth day?

When is 5 days actually 5 days under Florida law?

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