Aug 21 2013

Fla. Stat. § 489.128 Now Allows Payment to Some Unlicensed Contractors

By: E. Scott Golden

Because of the way courts have construed a recent change in Florida law, an unlicensed contractor may, in some circustances, be able to be paid through a court proceeding.  Until recently, that was not the case.

Under the old law, if a contractor was required to have a license to perform his services, but did not have a license, he could not recover anything in court if he was not paid.  Fla. Stat. §489.128 (which precludes any relief “in law or equity by the unlicensed contractor.”)  That has now changed, in certain circumstances.

In the case of MGM Constr. Svcs Corp. v. Travelers Cas. & Sur., 57 So. 3d 884 (Fla. 3d DCA 2011), the Third District Court of Appeal decided that, because of a recent change in the language of Section 489.128, if a contractor does not need to have a state license, but needs to have a county license, and fails to procure the county license, the contractor is not precluded by 489.128 from seeking affirmative relief in court.  This is a change from prior law (which continues to control for contractors who are required to have a state license).

We now have four situations when an unlicensed contractor performs services:

1.           State license required for the type of work being done: The contract is completely unenforceable in law and equity if the contractor did not have a license.  In at least one district (the 1st Distrcit Court of Appeal in North Florida), a person that has paid the unlicensed contractor is entitled to seek disgorgement of the money that has been paid, despite getting to keep the benefit of the contractor’s work.

2.            No state license required, but county license required, for the work being done, and county ordinance does not say that a contract by an unlicensed contractor is unenforceable:  The contract is not automatically unenforceable (at least in the 3d DCA in the MGM Construction case).  There is a series of factors to be weighed, which are listed in MGM in order to determine enforceability.

3.            No state license required, but county license required, for the work being done, and county ordinance says that a contract by an unlicensed contract is unenforceable:  MGM does not directly address this, but the decision intimates that the contract would not be enforceable

4.            No state or county license required: The contract is generally enforceable.

If you need to consult with a Fort Lauderdale construction attorney regarding an issue involving an unlicensed contractor, then please contact our firm at (954) 764-6766 to schedule an appointment.


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