This information, and other information on the Town website, is not intended to be legal advice or a complete explanation of property owners responsibilities in regard to construction projects. For more in-depth information and legal advice, please consult with a competent and experienced construction lawyer licensed in the State of Florida.
The Notice of Commencement (NOC) can be generally described as a form publicly filed in county records to signify that a construction project is beginning. The form identifies and describes the property and the improvements to be made, the names and addresses of the property owner and contractor, the lender’s name and address, and other required information.
In Florida, similar to other states, any subcontractor or supplier to a construction job can file a mechanics lien if they’re unpaid for work or materials provided to the job. If a lien claim is filed against a job, regardless of whether the property owner paid the general contractor, the property owner may be required to pay the claim. This means you can be required to pay for the same work twice. Florida law helps to provide protection to property owners against this undesirable scenario, but the Florida process to protect property owners against lien claims and double-payment must begin with the correct and timely recording of the NOC on the public records of the county.
Florida law (F.S. section 713.13(1)(a)) requires the property owner to file a NOC with the Lee County Clerk of the Court if the job valuation for their permitted work is greater than $5,000, or if there is a direct contract to repair or replace an existing heating or air-conditioning system is greater than $15,000 (F.S. section 713.135(1)(d)).
The exception is if a property owner has a construction loan to complete the job. In this scenario, the construction lender assumes the obligation to file the notice of commencement and to track all payments to contractors, suppliers, and vendors. In the event of any mismanagement or mistake by the construction lender, the lender is required to indemnify the owner. As such, matters are much simpler for property owners when a construction lender is on the job.
Property owners must get the NOC recorded on the County public records before the start of the job. It is not required that the NOC is recorded before obtaining the building permit. The NOC must be recorded before work begins on the project and the work must start within 90 days from the NOC’s filing.
Before scheduling the first inspection, the permit applicant must also email the recorded NOC to the Fort Myers Beach Building Division at buildingpermits@fmbgov.com and must post a copy of the recorded NOC at the job site. This must be provided to the Building Department in one of the two following ways (FS 713.135(d)):
Certified copy of the recorded NOC, or
A notarized statement from the owner, or the owner’s authorized agent, of the property stating that a NOC has been filed for recording to the Lee County Clerk of the Court, along with a copy of the NOC submitted for recording. The Lee County Clerk of the Court is located at 2115 Second Street in Fort Myers, or 1039 SE 9th Place in Cape Coral. For more information, please visit https://www.leeclerk.org/services/record-a-document
The property owner must also post a copy of the recorded NOC on the job site throughout construction in a weather protected condition, visible from the street, along with the permit and approved plans (available under uploaded files for the permit in the permit portal).
Note that to protect themselves against lien claims, property owners must follow all requirements in regard to Florida lien law including, but not limited to, making only proper payments. As an example, if a contractor provides the property owner with 45-day Notice to Owner, the property owner needs to obtain a lien release from their contractors and suppliers whenever they issue a payment to the contractor that includes work performed or materials provided by that contractor or suppliers.