Anyone who performs work in the construction industry knows the importance of Florida’s construction lien laws. Satisfying the time limits and notice requirements of construction lien laws are essential to protecting the lien rights of contractors, sub-contractors, material suppliers, and other construction professionals. As such, careful attention should be paid to these important details. As a Tampa construction law firm, over the years we have seen a variety of errors that can have a significant impact on a lienor’s right to file a claim, three of which we have provided below.
1. Notice Errors
Florida construction lien law requires a Notice to Owner to be served to the property owner in order for a claim of lien to be filed. Lienors who are not in privity, or in a direct contract with the owner must serve the Notice to Owner within 45 days of the initial service or material provided and prior to final payment being made. This timeline is often missed, and warrants a lien invalid.
Other notice errors include serving notice to the wrong individuals or not serving notice to all required parties. To ensure notice is properly served, take information from the Notice of Commencement, which should be posted in plain sight on the job site. The Notice of Commencement will include the necessary information needed to properly serve notice.
Florida construction lien law also requires notices to be served by certified mail with return receipt requested to the address listed on the Notice of Commencement. Notice may be served by hand or by fax if the Notice of Commencement provides a fax number for service of notices, or may be posted at the job site if neither methods are successful.
2. Claim of Lien Errors
Claim of Liens are required to be recorded within ninety days of the final furnishing of labor and materials covered under the contract excluding any warranty or repair items. In addition to the ninety day time requirement for recording a claim of lien, it is also required for a copy of the claim of lien to be served to all entitled parties by certified mail and return receipt requested within fifteen days of the recording. In Florida, a Claim of Lien is valid for one year after it has been recorded. Failure to foreclose the claim of lien within this time frame will invalidate the lien and the right to file a claim will be lost.
Other factors that can impact the validity of a Claim of Lien include omitting required details such as a detailed description of the property, the date of the last day work was performed or materials were provided, specific date of the day notice was sent, other statutorily required dates, or neglecting to include a detailed, itemized list of the services performed or materials provided on the job.
3. Exaggeration of Lien Claim
Another common construction lien error is willfully exaggerating the recorded amount due and owed in a Claim of Lien. In Florida, filing an exaggerated or “fraudulent” lien is considered a felony. A lien that is found to be fraudulent is a complete defense to the lien and may result in the discharge of the lien and potential liability for the lienor for damages related to the filing of the lien and associated attorney’s fees. Often lienors will file a claim of lien and include amounts for unapproved change orders, lost profits on unperformed work, expenses related to filing the claim, interest or attorney fees to their Tampa construction law firm, and other similar claims. While these amounts are valid amounts due, they cannot be included in the amount owed for claim purposes.
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.