Change Order, Notice to Owner, and the Ninety-Day Lien Clock
Your company is the fire alarm subcontractor on a $9.2 million tenant improvement in Tampa. The subcontract is $186,400 and states that no extra work is authorized without a written change order signed by the general contractor. You first furnished labor and materials on March 3. In May, the owner's IT vendor asks for 14 additional devices and a new NAC power booster; the GC's project manager emails 'proceed, we'll paper it later,' and your technicians install the work. The emails describe $19,750 in extras, but no signed change order ever issues. You reach substantial completion on July 8 and make your last furnishing on July 18, when you swap a defective device on the punch list. The GC has paid $150,000 and stopped paying because the owner has not funded the final draw. You never served a Notice to Owner. On October 2 the GC tells you to 'just lien the owner.'
1. Assume the owner recorded a Notice of Commencement. What are your lien deadlines, and what is the effect of missing the Notice to Owner?
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A subcontractor must serve a Notice to Owner within 45 days after first furnishing. First furnishing was March 3, so the deadline was April 17. Because the owner recorded a Notice of Commencement, the exception for a missing NOC does not apply, and the missed Notice to Owner generally defeats a construction lien against the owner's property. The contract claim against the GC survives, but the GC may be unable to pay. The claim of lien is a separate deadline: within 90 days after final furnishing. Final furnishing was July 18, so the last day is October 16. Recording a lien is still possible, but do not assume it will be valid against the owner given the NTO failure; review whether any equitable or contract theory preserves the claim. If a lien is recorded, a copy must be served on the owner and GC within 15 days. Before suing to foreclose, provide the final payment affidavit at least five days before filing.
2. Do the project manager's emails make the $19,750 in extras part of the contract and the lien claim?
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The subcontract requires a signed written change order, so on the face of the contract the extras are not authorized. But a written-modification clause can be waived by the parties' course of dealing, and a project manager ordinarily has at least apparent authority to direct field work for the GC. The emails saying 'proceed, we'll paper it later,' combined with installation the GC observed and accepted, are strong evidence that the extras were authorized and should be paid. The weak point is that no signed change order exists. Build the record now: itemize each added device, the booster, labor, and markup; attach daily reports, photos, submittals, and the email chain; send a written confirmation and a final accounting; and do not sign any release or waiver that covers the extras. If a lien is recorded, include the extras only if you can support authorization, because an inflated lien creates exposure. A claim against the GC for breach and unjust enrichment may be the safer lane.
3. The GC serves a Notice of Contest after you record. What clock starts, and what should you do in the next sixty days?
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Service of a Notice of Contest starts a 60-day fuse. Under section 713.22, Florida Statutes, the lien is extinguished if an action to enforce it is not commenced within 60 days after the notice is served. This is not a deadline to 'think about it.' Immediately engage construction counsel, verify service dates and the parties, prepare the complaint to foreclose, and consider recording a notice of lis pendens. Also provide the final payment affidavit at least five days before suit if you are suing the owner or GC for final payment. Evaluate whether the lien will be transferred to a bond, which changes the target but not the urgency. In parallel, send a demand package with the change-order documentation and consider mediation. If the lien is defective because of the NTO problem, do not spend the 60 days defending a bad lien; pivot to the contract claim and preserve evidence.