In the second half of this article we will continue to discuss ways that contractors and other construction professionals can avoid making common construction lien mistakes. To view the first half of this article, please visit Part 1.
Exaggeration of Lien Claim
Willfully exaggerating the recorded amount due and owed in a Claim of Lien is another common construction lien mistake. As Jacksonville construction attorneys, we are aware of the fact that filing an exaggerated or fraudulent lien in the State of Florida is actually considered a felony. When a lien is found fraudulent, it is a complete defense to the lien and can result in the discharging of the lien. That can lead to potential liability for the lienor and open them up to damages that are related to the filing of the lien as well as associated attorney’s fees. In most cases, lienors will file a Claim of Lien and include amounts for:
- Lost profits on unperformed work
- Unapproved change orders
- Attorney Fees
- Expenses related to filing the claim
While these amounts are valid amounts due, we know that they are not allowed to be included in the amount owed for claim purposes.
In accordance with the Florida construction lien law, Notice to Owner must be served to the property owner in order for a Claim of Lien to be filed. If a lienor is not in direct contract with the owner, they are required to serve the Notice to Owner within 45 days of the first day of labor or the first days materials were supplied and before the final payment was made. This time frame is commonly forgotten, which causes the lien to become invalid. There are other commonly made notice mistakes, such as serving notice to the wrong person, or not serving notice to all of the parties. For contractors and other construction professionals to make sure that notice is correctly served, we suggest taking information from the Notice of Commencement. The Notice of Commencement should be posted in plain view on the jobsite, and will include all necessary information needed to correctly serve a Notice to Owner.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.