Can a Subcontractor Sue for Non-Payment if They Haven’t Filed a Lien? Here’s What You Need to Know

Getting paid for your work shouldn’t be a guessing game. If you’re a subcontractor who hasn’t been paid for your labor or materials, you might be wondering: Can I still sue if I haven’t filed a lien? The short answer is yes, but there are important factors to consider.

In this blog post, we’ll break down the legal options for a subcontractor, how lien rights affect your ability to recover payment, and what steps you can take to protect yourself moving forward.

Can a Subcontractor Sue for Non-Payment Without Filing a Lien?

Yes, a subcontractor can sue a general contractor or property owner for non-payment even if they haven’t filed a lien. A lien is a powerful tool, but it’s not the only way to recover what you’re owed. A lawsuit for breach of contract, unjust enrichment, or other legal claims may still be an option.

However, not having a lien may make it harder to secure payment. A mechanic’s lien gives subcontractors leverage because it attaches directly to the property, making it difficult for owners to sell or refinance without resolving the debt. If you didn’t file one, you may still be able to recover payment—but it may take longer and require legal action.

What Legal Options Does a Subcontractor Have Without a Lien?

If you haven’t filed a lien, you still have several legal avenues to pursue payment:

1. Breach of Contract Lawsuit: If you had a contract (even a verbal agreement in some cases), you can file a lawsuit against the general contractor for failing to pay. You’ll need to show proof of your agreement, completed work, and unpaid invoices.

2. Unjust Enrichment Claim: Even without a formal contract, if the contractor or property owner benefitted from your work but didn’t pay, you may have a case for unjust enrichment—meaning they unfairly profited at your expense.

3. Prompt Payment Act Claims (Florida-Specific): Florida law has strict deadlines for payments on construction projects. Under the Florida Prompt Payment Act, contractors must pay subcontractors within a set time frame after receiving payment from the property owner. If they fail to do so, you may be entitled to penalties and interest on unpaid amounts.

4. Filing a Lawsuit for Fraud or Misrepresentation: If the contractor intentionally withheld payment or misrepresented their ability to pay, you may have grounds for a fraud claim. These cases can be harder to prove but may result in greater damages if successful.

How Long Do You Have to Sue for Non-Payment as a Subcontractor?

The time you have to sue (the statute of limitations) depends on your specific case:

• Breach of Contract: In Florida, you generally have five years to sue if there was a written contract, and four years if it was an oral contract.
• Unjust Enrichment: The deadline is typically four years from the date payment was due.
• Fraud: You may have up to four years from when the fraud was discovered.

These deadlines may vary based on the details of your case, so it’s crucial to act quickly and consult a lawyer.

What If the Contractor Claims They Haven’t Been Paid?

A common excuse general contractors give is: “I can’t pay you because I haven’t been paid by the owner.” This is known as a pay-when-paid or pay-if-paid clause.

In Florida, pay-when-paid clauses are generally enforceable, meaning a contractor may delay payment until they receive funds from the property owner. However, if the contract has a pay-if-paid clause (making payment entirely conditional), Florida courts tend to scrutinize these clauses. If the contract isn’t crystal clear, the courts may rule in your favor.

How to Protect Yourself from Non-Payment in the Future

If you’re a subcontractor, taking proactive steps can help you avoid payment disputes:

• Always have a written contract. Verbal agreements are harder to enforce.
• Send preliminary notices. In Florida, a Notice to Owner (NTO) within 45 days of starting work helps protect your lien rights.
• File a lien on time. A mechanic’s lien must typically be filed within 90 days of last work performed.
• Keep records of all invoices, contracts, and communications. Documentation is key in legal disputes.

When Should You Contact a Lawyer?

At Ayala Law, we’ve helped subcontractors, contractors, and businesses in Florida navigate complex payment disputes.

If you’re a subcontractor struggling to get paid for your work, contact our construction attorneys at 305-570-2208. You can also email our attorney Eduardo A. Maura directly at eduardo@ayalalawpa.com.

We at Ayala Law PA are passionate about helping those in legal need, so please don’t hesitate to schedule a case evaluation with us online here.

[The opinions in this blog are not intended to be legal advice. You should consult with an attorney about the particulars of your case].