The Pitfalls of Preparing and Recording Your Own Construction Lien in Florida
All sectors of the construction industry are cost sensitive, there are many ways to save costs, however, one that is never recommended is preparing and recording your own claim to lien in Florida. All too often, clients discuss commencing litigation on a claim of lien for a significant sum of money that they prepared themselves. It is usually the same discussion, “sorry I didn’t consult you on this lien, I was just trying to save some money and time and did it myself, don’t worry though it is a good lien…”
Unfortunately, most, if not all, of these liens that have come across my desk have been defective, these issues usually result in spending more money and time in prosecuting the claim of lien. Moreover, many times, the defects are fatal leaving the claim of lien worthless.
Red Adair, the great innovator and oil firefighter, was one hundred percent accurate when he said “[i]f you think its expensive to hire a professional to do the job, wait until you hire an amateur.” Florida construction liens are creatures of statute, Florida law is abundantly clear in that parties seeking the benefit of the Florida construction lien law, Ch. 713, Fla. Stat., must strictly comply with the chapter’s requirements or else forego their rights. While this might be scary enough, compliance with the Florida construction lien law is often times difficult due to the confusing and complex nature of the statute.
Below is a summary of the most common errors that are made when preparing and recording construction liens in Florida:
Failure to Timely Record a Claim of Lien: The claim of lien must by recorded within ninety (90) days after the final furnishing of labor and materials under the contract. This does not include warranty or repair items. Moreover, the ninety (90) day time frame can also be confused if it expires on a Saturday, Sunday, or legal holiday.
Failure to Foreclose Upon the Claim of Lien Within One Year: Pursuant to § 713.22, Fla. Stat., a claim of lien in Florida lives for one year from the date of recording of the lien. If an action to foreclose the claim of lien is filed outside of one year, then then the lien is no longer valid as a matter of law.
Exaggerations of Lienable Amounts Due: Willful exaggeration of amounts due and owing set forth in a claim of lien is a complete defense to the lien and will result in discharge of the lien with potential liability for the lienor for costs, attorney’s fees and potential damages for slander of title. The items that are considered lienable are set forth in 713.01, Fla. Stat. Often times non-attorneys are not aware of the nuances involved in determining what constitutes lienable items.
Failure to Respond to Sworn Statement Requests: If any potential lienor is requested, in writing, to furnish a sworn statement of account pursuant to § 713.16, Fla. Stat., setting forth the labor, materials, or services, furnished and the amounts due and owing, such statement must be furnished within thirty (30) days. If the statement has any defects in it, such as not being timely provided, not being sworn, or being accurate, then it is likely that this will result in the loss of lien rights.
Failure to Provide Copy of Claim of Lien: A copy of the claim of lien must be properly served pursuant to § 713.18, Fla. Stat., within fifteen (15) days of recording the lien. Failure to comply with this can create a serious defense to the lien. Proper service of the claim of lien upon all of the required parties pursuant to applicable Florida law is rarely complied with if the lienor attempts it on their own.
Failure to Timely Serve Notice to Owner: A lienor not in direct privity of contract with the owner, except a laborer, a professional lienor, or a subdivision improver, is required to serve, pursuant to § 713.18, Fla. Stat., the owner with a notice to owner at any time before the expiration of 45 days from the lienor’s first work or delivery of materials at the site. The notice to owner advises the owner as to the identity of all persons that have furnished labor and material to improve his property. This requirement is a prerequisite to recording a valid lien for non-privity persons required to serve the notice, failure to comply will preclude the lienor from placing a claim of lien on the owner’s property. The notice requirements are neither clear or easily navigated.
Failure to Properly Identify the Property: Pursuant to § 713.08, Fla. Stat., the claim of lien must sufficiently describe the real property so that it can be identified. While at first glance one would think that this is easy, in reality it can get very confusing and complex. Often times the labor, materials, or services is provided to a community association, such as a homeowners or condominium association, or a duplex. In order to properly identify the real property in these situations a very careful analysis needs to be conducted.
As one can see, this overview has briefly addressed some of the issues that can arise with liens in Florida. Sweeney Law, P.A. is ready to assist in any claim of lien issue or other construction dispute that may arise in Florida. Brendan A. Sweeney, Esq. has prepared and litigated several high dollar complex lien matters throughout the state of Florida on behalf of contractors, subcontractors, material suppliers, and owners.