Aaron Thalwitzer – July 15, 2013
Don’t let a defective Contractor’s Final Payment Affidavit wreck your lien rights.
Contractor’s Final Payment Affidavits are not particularly complex, but they are extremely important. 
Under 713.06(5)(d)(1), Florida Statutes, “[w]hen the final payment under a direct contract becomes due the contractor . . . [t]he contractor shall give to the owner a final payment affidavit stating, if that be the fact, that all lienors under his or her direct contract who have timely served a notice to owner on the owner and the contractor have been paid in full or, if the fact be otherwise, showing the name of each such lienor who has not been paid in full and the amount due or to become due each for labor, services, or materials furnished. The affidavit must be in substantially the following form:
CONTRACTOR’S FINAL PAYMENT AFFIDAVIT
State of Florida
County of _______
Before me, the undersigned authority, personally appeared (name of affiant), who, after being first duly sworn, deposes and says of his or her personal knowledge the following:
- He or she is the (title of affiant), of (name of contractor’s business), which does business in the State of Florida, hereinafter referred to as the “Contractor.”
- Contractor, pursuant to a contract with (name of owner), hereinafter referred to as the “Owner,” has furnished or caused to be furnished labor, materials, and services for the construction of certain improvements to real property as more particularly set forth in said contract.
- This affidavit is executed by the Contractor in accordance with section 713.06 of the Florida Statutes for the purposes of obtaining final payment from the Owner in the amount of $ .
- All work to be performed under the contract has been fully completed, and all lienors under the direct contract have been paid in full, except the following listed lienors: (name of lienor(s) and amount(s) due).
Now that we know what a Contractor’s Final Payment Affidavit is, and what it looks like, my nine items of note with respect to Contractor’s Final Payment Affidavits:
- Only a contractor (as defined in the construction lien law) has to give a Contractor’s Final Payment Affidavit
- Subcontractors and materialmen are not required to give a Contractor’s Final Payment Affidavit
- The contractor has a duty to furnish the Contractor’s Final Payment Affidavit
- When the contractor doesn’t give the Contractor’s Final Payment Affidavit, the contractor does not have a lien and has no right to sue the owner under the contract. Failure to give the Contractor’s Final Payment Affidavit is a complete defense to the contractor’s lien claim which must be alleged with particularity
- The owner actually has a duty to obtain the Contractor’s Final Payment Affidavit before making the final payment
- The purpose of the Contractor’s Final Payment Affidavitis to protect the owner from paying twice
- A release of lien is not the same as a Contractor’s Final Payment Affidavit
- An “acknowledgment” as opposed to “swearing or affirming” to the Contractor’s Final Payment Affidavit is sufficient, but not advisable.
- The Contractor’s Final Payment Affidavit doesn’t have to served, but as a practical matter, should be sent by certified mail, return receipt requested
via Florida Construction Law: 9 Tips For Final Payment Affidavits.