Attorney fee provisions in construction contracts influence how payment disputes, lien claims, and bond claims unfold in Florida. Contractors, developers, and design professionals often focus on scope, schedule, and price, yet the attorney fee clause can shape the financial impact of a disagreement. The following overview explains how these clauses operate under Florida law and how the structure of a contract can affect both risks and opportunities.
How Attorney Fees Operate Under Florida Lien and Bond Laws
Construction liens present a complex legal landscape for which most clients will require legal representation. Below are some key takeaways regarding Florida’s lien and bond laws. For tailored advice, consult attorneys like those in Cobb Cole’s Construction & Design practice group.
- Florida’s lien statute gives the prevailing party in a lien enforcement action the right to seek attorney fees and costs. The statutory authority appears in Florida Statute § 713.29.
- Courts apply a “significant issues” test when deciding who prevailed. A party that succeeds on only minor points may not be considered the prevailing party.
- A property owner may also receive attorney fees if they defeat a fraudulent lien.
- When a lien claimant succeeds in a foreclosure action, the claimant may seek prejudgment interest in addition to the underlying lien amount and attorney fees.
- Lien rights are cumulative with other contract-based remedies. A contractor may file a lien and still pursue breach of contract or similar claims, and fee recovery may flow from the contract or the statute, depending on the claim.
- Public projects follow a different path because liens cannot attach to public property. Contractors instead rely on payment or performance bonds. Florida’s “Little Miller Act” (a state version of the Federal Miller Act (40 U.S.C. §§ 3131–3134)) is found at Florida Statute § 255.05, and the statute governing certain transportation projects appears at Florida Statute § 337.18. A contractor or subcontractor that prevails in a bond claim may seek attorney fees under these statutes.
- Under Florida Statute § 713.20, the advance waiver of lien rights in a contract is prohibited. Furthermore, a waiver for future labor or materials supplied is not enforceable. This affects how fee provisions tied to lien enforcement should be drafted.
Why Construction Contracts Include Attorney Fee Provisions
- Many developers and contractors include mutual fee clauses to allocate risk. When disputes involve both statutory claims and contract claims, the contract language may influence which party qualifies for fee recovery.
- A well-drafted contract identifies which disputes fall under the fee clause. Some contracts limit fees to actions arising from the contract. Others include related statutory actions such as lien foreclosure or bond claims.
- Fee clauses may broaden or narrow the definition of “prevailing party.” This can affect negotiation strategy before litigation begins.
- Because fee shifting depends on the final judgment, partial victories can create uncertainty. For instance, a contractor may win on a lien count but lose on a breach of contract claim, and a court may find that neither side prevailed on the significant issues.
Common Problem Areas When Drafting or Negotiating Attorney Fee Clauses
- A contract drafted for a private project is sometimes reused on a public project, which can cause confusion regarding liens and bonds. Since liens cannot attach to public property, contracts for public projects should reference the applicable bond statute if the intent is to allow fee recovery.
- Fee clauses that conflict with statutory rights may lead to disputes over interpretation. For example, attempting to waive lien rights for future work conflicts with § 713.20 and may undermine the fee clause tied to lien enforcement.
- Multi-tiered contracts involving owners, contractors, subcontractors, and lenders may require consistent fee provisions. Without coordination, one party may benefit from a fee clause that others cannot access.
How Cobb Cole Supports Contractors and Developers With Attorney Fee Language
Contractors and developers often look for legal guidance when planning fee provisions, enforcing lien rights, or preparing for possible litigation. A firm with deep construction insight can help evaluate how a proposed clause interacts with Florida’s lien and bond statutes.
Through its Construction & Design practice group, Cobb Cole can analyze the contract structure, identify risks created by ambiguous fee language, and assist with drafting provisions that reflect the practical realities of Florida construction projects.
Because fee disputes often intersect with title concerns, property claims, and commercial development, Cobb Cole’s Real Estate Law group can help coordinate lien filings, waivers, notices, and similar documents. Coordinating these areas helps clients avoid procedural missteps that may affect attorney fee eligibility.
