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CONSTRUCTION LIENS AGAINST CONDOMINIUM PROPERTIES IN FLORIDA

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One of the most peculiar but import aspects of practicing construction law in Florida is familiarization with the state’s lien laws. Florida Lien Law, Fla. Stat. § 713 with Fla. Stat. § 718.121(2), specifies that a construction lien based on labor performed on or materials furnished to common elements, when such contract work was authorized by the association, constitutes a lien against all condominium parcels. Though, there are some quirks when enforcing such liens.  One important and unexpected quirk is that a lien on a condominium for work performed under the authority of an association to common areas is not a lien on such common areas but a lien on the actual condominium parcels.

Under Florida law, no lien of any kind can be recorded against a condominium property as a whole without the unanimous consent of the unit owners. Obviously, in order to earn this protection, the condominium property must have recorded a valid condominium declaration. Once a declaration is recorded, construction liens may occur or be created against individual unit owners absent consent from every unit owner. Fla. Stat. § 718.001 et seq.

Chapter 718 of the Florida Statutes, also known as Florida’s Condominium Act, specifically states that labor on or materials furnished to a unit shall not be the basis for the filing of a construction lien against a unit or condominium parcel unless the unit owner specifically consented to or requested the labor or materials. However, labor performed on or materials provided to the common elements can be the subject of a construction lien if authorized by the condominium association. In this way, association authorization is judged to be the same as the express consent of each and every unit owner in the condominium association.  See Fla. Stat. § 718.121(1).

More specifically, Fla. Stat. § 718.121(2) asserts: “Labor performed on or materials furnished to the common elements are not the basis for a lien on the common elements, but if authorized by the association, the labor or materials are deemed to be performed or furnished with the express consent of each unit owner and may be the basis for the filing of a lien against all condominium parcels in the proportions for which the owners are liable for common expenses.” (emphasis added).

Furthermore, § 718.121(3) provides: “If a lien against two or more condominium parcels becomes effective, each owner may relieve his or her condominium parcel of the lien by exercising any of the rights of a property owner under Chapter 713 [Florida’s Lien Law], or by payment of the proportionate amount attributable to his or her condominium parcel. Upon payment, the lienor shall release the lien of record for that condominium parcel.”

This is to say that when an association hires a contractor to complete construction-related work, the work is regarded as sanctioned by all unit owners. It also means that since all unit owners are deemed to consent to the work, if the contractor is left unpaid, he can place a lien on each individual condominium parcel/unit. It is also important to note that the lien against each unit will be in the pro rata amount that the owner is liable for common expenses. And, finally, it means that each owner has the option to discharge the lien from his/her condominium unit. The owner can pay his/her proportional share to discharge the lien or the owner can transfer the lien to a bond or other security.

If a contractor is not paid by the association and chooses to enforce the lien and move forward with a lien foreclosure lawsuit, the contractor is not obliged to sue each individual owner. More precisely, the contractor can merely sue the association since the association is deemed to represent the unit owners’ interests. See Trintec Construction, Inc. v. Countryside Village Condominium Association, Inc., 992 So.2d 277 (Fla. 3d DCA 2008) (finding that unpaid roofing contractor that filed lien foreclosure action against association was not required to join all of the unit owners in the action); Four Jay’s Construction, Inc. v. Marina at the Bluffs Condominium Association, Inc., 846 So.2d 555 (Fla. 4th DCA 2003) (finding that balcony contractor properly sued the association in breach of contract action as a class representative on behalf of the owners).

Associations that hire contractors must understand their options in the event they are implicated in a payment dispute with a contractor so that owners can be best advised. Additionally, contractors that are hired by associations should understand their lien rights in the event of nonpayment and should take all necessary precautions to ensure payment.

Sweeney Law, P.A. Has Vast Experience in Handling Condominium Lien Issues.

Brendan A. Sweeney, Esq., LL.M., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, regularly handles complex condominium lien matters throughout Florida. Brendan A. Sweeney, Esq., LL.M. is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 2019, Florida Legal Elite in 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any questions and/or issues regarding construction liens and particularly liens involving condominium complexes contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights.

www.sweeneylawpa.com.

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