In A Nutshell
- The Affidavit must state that all lienors have been paid in full or show the name of each lienor who has not been paid in full and the amount due or to become due to them.
- The owner may ask for and the contractor is obligated to provide a Contractor Payment Affidavit before any payment is made.
- The contractor is required to provide the Contractor's Final Payment Affidavit prior to final payment whether the owner asks for it or not.
- Making a final payment to your contractor without first receiving the Final Payment Affidavit causes that payment to be an Improper Payment.
- If the Affidavit lists unpaid lienors, or if you have received Notice to Owner from anyone without receiving a release from them, do not make a final payment to your contractor without first consulting an attorney.
Presented to the owner from the contractor, a Contractor Payment Affidavit states, if it is in fact true, that all lienors under the contractor’s direct contract have been paid in full. If there is money due to lienors the Affidavit should show the name of each lienor and the amount due, or to become due, to each lienor for labor, services, or materials provided.
The Florida statutes prescribe the proper language and presentation for a Contractor Final Payment Affidavit. We have included one in the Forms to View section of our website; if you like take a look at it now, this is what your contractor will be sending to you.
Progress Payment Affidavit:
During the course of construction, before a progress payment is due on the contract you may ask your contractor for a Progress Payment Affidavit and if you request it he is obligated to provide it.
Whether or not you request the Progress Payment Affidavit and whether or not your contractor provides it - an owner always has the responsibility to make certain that all lienors who have given Notice to Owner get paid.
Requesting a Payment Affidavit before each progress payment is your prerogative. Having as much information about the status of subcontractors and material suppliers is to your benefit and could head off big problems later.
If you are on speaking terms with your contractor then a verbal request that he/she provide the Affidavit should do. If you are no longer on speaking terms with your contractor, that is not a good sign, you should be speaking to an attorney with competency in construction law about it - your attorney will advise you about making, or not making, a demand for the Payment Affidavit.
Final Payment Affidavit:
When a final payment on your contract becomes due your contractor is obligated to provide you with a Final Payment Affidavit, you shouldn’t have to ask for it, it is mandatory that he provide it. Making a final payment to your contractor without first receiving the Final Payment Affidavit causes that payment to be an Improper Payment. Here it is directly from the statute: “The owner shall retain the final payment due under the direct contract that shall not be disbursed until the contractor's affidavit … has been furnished to the owner.”
If you do make a payment before receiving the Final Payment Affidavit that payment is considered to be “improper” and can cause you to pay twice for work performed or materials provided during your construction project.
The contractor shall have no lien or right of action against the owner while in default for not giving the owner the Affidavit.
Negligent (not deliberate) inclusion or omission of any information in the Affidavit which has not harmed the owner does not constitute a default that will defeat an otherwise valid lien that the primary contractor may have against the improved property.
In the following section about Progress Payments and Final Payments we will talk more about making payments based upon what you learn from the Contractor Payment Affidavit. For now just know that you have the right to receive and the contractor has the obligation to provide the Affidavit and that you should not make any final payment to your contractor without receiving the Contractor’s Final Payment Affidavit.
Next: The next section in the program is Progress Payment
Florida's Lien Law
|Contractors - Contracts|
|A Few Things More|
- About Florida's Lien Law
- About Construction Liens
- The Problems
- The Solutions
- Dates & Events Calculator
- Frequently Asked Questions
- About Us
- Building Permits
- Claim of Lien
- Construction Contract
- Notice of Commencement
- Notice to Owner
- Some Really Important Issues
- Site Map