FLORIDA REAL PROPERTY LIENS: FLORIDA STATUTES 713, 718, 720 AND 723.
We have all seen the news report, it usually goes something like this, a wealthy individual from the northeast has creditors crawling out of the woodwork to collect on large sums of money. The wealthy individual has a multimillion-dollar waterfront Florida residence which the creditors cannot get to. Well the reason for this is Florida’s homestead protection to debtors. Subsections 4(a) and (b) of Article X of the Florida Constitution provide, that there shall be exempt from forced sale of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for a house, field or other labor performed on the reality…In order to qualify for a homestead, the residence must be the individuals’ primary residence and the residence can be up to one hundred and sixty acres of contiguous land if the homestead is located outside of a municipality and up to one-half acre if the residence is located inside of a municipality.
Despite the homestead protections, there are still different types of liens, in addition to liens for taxes, wherein the homestead creditor protection is not applicable. These include liens for improvement of real property as well as liens/assessments associated with the type of property, whether a single-family residence in a homeowners’ association or a condominium owner on the 25th floor on the ocean.
Who cares about a lien on your property? Well, it is very serious, encumbers the property and makes it very difficult to sell and/or refinance the property. A lien attached to property puts others on notice that the owner owes the creditor money.
Florida Statute 713, Part 1: Construction Liens
To create a construction lien one must file a claim of lien. The claim of lien must be recorded in the county where the improved property is located not later than 90 days from the lienor’s last work, or 90 days from the termination of the contractor under whom the lienor is working, whichever is sooner.
The lienor is required to serve a copy of the claim of lien within 15 days of recording the lien. The owner has a defense to the extent the owner can show any harm as a consequence of not receiving the copy of the claim of lien within the 15 days.
A lien remains effective for a period of one year unless:
- it is satisfied, or
- a notice of contest of lien is recorded, or
- a twenty-day summons to show cause is served on the lienor, or
- suit is filed to enforce the lien by the lienor.
If suit is not filed prior to the one year, or within 60 days of the date that the clerk certifies that a notice of contest of lien was served on the lienor, or within 20 days of the lienor being served with a twenty-day summons to show cause, the lien will expire. A lien cannot be renewed by re-recording. The only way to extend the effect of a lien beyond a year is to file suit to enforce the lien in a court of competent jurisdiction. Then the lien remains effective until the suit is resolved.
Florida Statute § 713.29 provides that the “prevailing party” can recover its attorney fees, but determining who is or who is not the prevailing party. Under this statute, the party who has prevailed on the “significant issues” is the party entitled to an attorney’s fee award.
Florida Statute 718: The Condominium Association Lien
The condominium statute gives the association the right to record a claim of lien against the unit for unpaid assessments. Before the association can record a claim of lien it must first send the unit owner a demand letter advising them of the amounts that are owed and that if such amounts are not paid within 30 days, the association will record a claim of lien. This “pre-lien” letter does not legally have to be prepared by a lawyer.
After the claim of lien is recorded, the association must send a second letter advising the owner of the new amounts that are owed, that the claim of lien has been filed, and that if the new amounts are not paid within 30 days the association has the right to file an action to foreclose the lien in the same manner as a mortgage is foreclosed.
The statute provides that the association is entitled to recover all attorneys’ fees and costs associated with its efforts to recover delinquent assessments from the unit owner. The association may also recover interest at the rate set forth in the documents, at the rate of 18 percent if the documents are silent, as well as late fees if authorized by the documents.
If the association is forced to foreclose its claim of lien, it can ultimately obtain a judgment of foreclosure, which will require the unit to be sold at auction to satisfy the association’s claims. With the exception of taxes and first mortgages, the association’s lien is generally superior to all other liens against the property, no matter when they were issued.
A unit owner, his agent or his attorney may drastically shorten the time for an association to file suit by recording a notice of contest of lien. After notice of contest of lien has been recorded, the clerk of the circuit court will mail a copy of the recorded notice to the association by certified mail, return receipt requested, at the address shown in the claim of lien or most recent amendment to it. The clerk will certify to the service on the face of the notice. Service is complete upon mailing. After service, the association has 90 days in which to file an action to enforce the lien; and, if the action is not filed within the 90-day period, the lien is void.
Florida Statute 720: The Homeowners’ Association Lien
Homeowners’ association procedures are essentially identical to condominiums, except the pre-lien letter must be sent 45 days in advance, as opposed to the 30-day requirement for condominiums.
Florida Statute 723: The Florida Mobile Home Act
Mobile homes can get tricky since usually it is different people who own the real property and the home on top of it. Liens in this act usually deal with “storage” of the home on the real property and lien based on not paying for said “storage”.
Sections 723.084-723.0861 deal with the complex field of mobile home liens. For the most part the usual elements of notice, a period of time to take action, the ability of the homeowner to speed up the process, and finally foreclosure if nothing is paid or discharged, all exist. However, there are several complexities due to possibility of this being a three-party issue between a lienholder, homeowner, and separate property owner. These parties may enter into any contract providing rights, duties, and obligations different from those set forth in the act, and the terms and conditions of such contract would then control the rights, duties, and obligations of the parties with respect to any action at law brought to enforce the provisions of this act. Any such contract will control the rights, duties, and obligations of the parties to the extent of any inconsistency with the provisions of the act.
The mobile home statute has a similar issue with attorney’s fees as construction liens. The prevailing party in any action brought to enforce the provisions of this section shall be entitled to reasonable attorney’s fees and costs. But again, it is difficult to see who the prevailing party is and with the possibility of three distinct parties that question gets even murkier.
Sweeney Law, P.A. Regularly Handles Complex Florida Transactional & Litigation Matters
Brendan A. Sweeney, Esq., LL.M., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, regularly handles complex transactional and litigation 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 Florida transactional or litigation questions and/or issues then contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights. www.sweeneylawpa.com.