Construction Liens │ Construction Attorney │ 321.237.2869
Herbert L. Allen, Jr., P.A. dedicates this website to Florida Construction law. Construction Liens │ Construction Attorney │321.237.2869. Construction Attorney Herbert L. Allen, Jr., P.A. provides legal services for construction law and contractors (residential and commercial) in North Florida, Central Florida, and South Florida. Contact: 321.237.2869. Construction Liens │ Construction Attorney │321.237.2869
Florida courts construe construction liens very strictly, because they are creatures of the Florida Statutes. Section 713, Florida Statutes, describes many different aspects of construction liens. I will highlight only a few of the features of Florida construction liens. Many exceptions apply to the points I make below and I have only dealt with some of the most commons errors I see regarding claims of lien.
Construction Lien Basics
I will now touch upon several basic aspects of construction liens. I am not giving legal advice here, and do not rely upon anything on this website as legal advice. We are not forming an attorney-client relationship based upon anything in this website.
Over the years, I have reviewed many claims of lien. In many cases, the liens may show on their face that may not be enforceable. I urge people to be very careful in complying with all the requirements to have a valid lien. If you file a lawsuit based in part or in whole upon a claim of lien, and you do not prevail on your lien count, then you may have to pay the attorney's fees for the prevailing party. Those attorney's fees may far exceed the lien value. Be very careful. If you have questions, call me. I generally answer my own phone at 321.237.2869.
Common Errors Related to Construction Liens
1. Notice to Owner. The Florida Lien law requires a notice to owner in some cases. If you do not have a direct contract with the owner, and you provide materials or serve as subcontractor for the construction job, then you need to file a notice to owner within forty five days of your first work on the job. You must also serve timely that notice to owner upon all persons required to receive a copy. Serving the Notice to Owner requires statutory compliance on time, method and recipients. See Florida Statute 713.18 for details on how to serve the Notice to Owner. Without proper proof of service of the Notice to Owner, you generally forfeit all lien rights.
Contractor Tip. If you do not have a foolproof system of tracking the dates you first work on a job, then you need to start one today. I recommend using a computer program that will allow you to enter and calendar all important dates for each job. You need to calendar 45 days from the date you first began work on the construction job (except for specially fabricated materials). Be very careful of the wording in partial release of liens and be careful to comply with your statutory duties in seeking payments and releasing liens.
Homeowner Tip. If you have anyone working on your home, and you receive a notice to owner from anyone, then be sure that you comply with the lien law in making proper payments. If you do not know how to make proper payments, please call me at 321.237.2869.
2. Claim of Lien Errors. Lawyers and courts have shown disagreement about the amount you must state in a claim of lien. Do you include profit and overhead? If the trial court determines that you have willfully exaggerated the amount due in the claim of lien, then the court may declared the lien fraudulent. A fraudulent lien may cause enormous problems for the contractor, and may imperil the contractor's professional licenses. Never include a claim for work never performed or materials not furnished for the property. Be sure that you record and serve your claim of lien within 90 days of the last work on the construction job. As always, be sure that lien has the correct legal description and the correct property address. All the information on that claim of lien must be double-checked for accuracy, not matter who drafted the claim of lien. Small errors on the claim of lien may render it unenforceable in court, and that could cause you serious problems. Be sure that you record and serve your claim of lien within 90 days of the last work on the construction job.
Contractor Tip. Do not file the claim of lien if you know that you have not complied with the applicable notice to owner provisions. If you have missed your deadlines, then do not file the claim of lien. The claim of lien requires a sworn statement. Willful falsehoods on the claim of lien will pose huge problems later. No job should cause you to lose your reputation, honor and integrity. Just because you lose your lien rights does not mean you cannot bring a lawsuit to recover your losses. You may be able to sue in contract, unjust enrichment, or upon other legal theories. Finally, be sure that your software program lets you calendar the dates to file and serve your claim of lien timely. You should also be aware that you must file suit within one year of recording the claim of lien and you must file a contractor's final affidavit at least five days before filing suit.
Homeowner Tip. If a claim of lien has been recorded against your property, then seek legal advice immediately. Something has gone seriously wrong if a claim of lien appears. It may be a dispute between your contractor and a subcontractor, but usually the claim of lien means some one was not paid in full. You want to be sure that you do not have to pay twice for the same work on your home.
3. Release of Liens. Someone may present you with a partial, conditional or complete release of lien. Examine each release of lien very carefully. Some people may have prepared a non-statutory release of lien and expect you to sign it. You do not have to sign just any release of lien. Once you have received payment, you only have to sign a statutory release of lien, Section 713.20, Florida Statutes. If you sign a release of lien, be sure that you are not waiving valuable lien rights. Section 713.20, Florida Statutes, controls waiver and release of lien. Finally, remember that before you can bring suit for non-payment based upon your lien rights, you must serve a contractor's final affidavit, as described in Florida Staute 713.06(3)(d)1, which also requires the contractor to furnish that final affidavit at least five days before instituting any legal action upon the lien. Contractors Guide to Construction Law │ Construction Attorney │ 321.237.2869.
Contractors Tip. If you want to be sure that all your sub-contractors release their lien rights, be sure that you have them sign a release of lien for each progress or partial payment. Likewise, as each sub-contractor concludes its work, but sure to obtain a final release of lien. Of course, if anyone has filed a notice to owner, you wan to be sure that you have obtained appropriate releases of lien. Be sure that your computer software also allows you to track notices to owner and claims of lien, so that you can match up all payments to any notices to owner or claims of lien.
Homeowners Tip. Before you make payments to anyone requesting payment for work on your home, be sure that you receive an appropriate (partial or final) release of lien for all payments made. You want to be able to match up your payment to each release of lien, so that payments will definitely cover all parties who have filed a notice to owner, and all parties who have a direct contract with you.
Contractors Guide to Construction Law │ Construction Attorney │ 321.237.2869
For further information, you may follow the links below:
Notice of Commencement • Notice to Owner • Request for Sworn Statement of Account • Claim of Lien • Construction Contracts • Contest of Lien • Contractor's Final Payment Affidavit • Misapplication of Construction Funds • Proper Payments • Statute of Limitations • Construction Defects and Pre-Suit Notice
I handle many construction cases without an initial office consultation. We can work together through email, fax, U.S. mail, texting, and many other means of communication and document exchange. If you need to visit my office, Herbert L. Allen, Jr., P.A., is located at 1360 S. Patrick Dr., Suite 1A, Satellite Beach, FL 32937. I provide attorney legal services for construction law in Satellite Beach, Melbourne Beach, Merritt Island, Indialantic, Melbourne, Eau Gallie, Rockledge, Viera, Cocoa Beach, Cocoa, Palm Bay, Palm Shores, West Melbourne, Suntree, Patrick Air Force Base, Cape Canaveral and all of Florida.