Florida’s Construction Lien Laws: Owner’s Contest of Lien
By James M. Gonzalez and Jessica Cappock October 27, 2020 Posted in Construction Law Share
Next in this series, we discuss the owner’s right to contest a Claim of Lien recorded on their property. If a dispute arises regarding the appropriateness or accuracy of a recorded lien, it may be in the property owner’s best interest to file a Notice of Contest of Lien. Recording a Contest of Lien puts the spotlight on the lienor to act. Specifically, the Notice will begin a 60-day time period for the lienor to file their action to foreclose on the lien or lose their lien rights completely.
a. Standard Time Period for Enforcement of a Construction Lien
Upon the recording of a lien against a property owner’s real property, the clock begins ticking for the lienor to bring an action to enforce the lien. Per Florida Statute §713.22(1), a lien may not exceed the time period of 1-year (1) after the claim has been recorded, or (2) after the recording of an amended claim of lien with a showing of the last date of furnishing labor, services, or materials, notwithstanding the time an action to enforce the lien is filed. Moreover, “a lien that has been continued beyond the 1-year period…is not enforceable against creditors or subsequent purchasers for a valuable consideration….” Fla. Stat. §713.22(2).
b. Owner’s Ability to Shorten the Time Period of Enforcement of a Lien
By recording a Contest of Lien, a property owner may shorten the time period that the lienor can enforce their lien. This can put pressure on the lienor to use it or lose it. The shortened time period to enforce the lien is strictly construed by the courts and often times, when the heat is on, the lienor will fail to meet this quick deadline; thereby losing their right to file suit. Pursuant to Florida Statute §713.22(2), “[a]n owner’s attorney may elect to shorten the time prescribed…within which to commence an action to enforce any claim of lien…by recording in the clerk’s office a notice….” Following the filing of the Notice of Contest, a copy will be sent to the address of the lienor (the address found on the recorded Claim of Lien), putting the lienor on notice that the 60-day time period has begun and the lien will extinguish if the lienor does not exercise their rights within that time frame.
Florida Statute §713.22(2) provides the following form for a Notice of Contest of Lien:
NOTICE OF CONTEST OF LIEN
To: (Name and address of lienor)
You are notified that the undersigned contests the claim of lien filed by you on , (year) , and recorded in Book , Page , of the public records of County, Florida, and that the time within which you may file suit to enforce your lien is limited to 60 days from the date of service of this notice. This day of , (year) .
Signed: (Owner or Attorney)
The lien of any lienor upon whom such notice is served and who fails to institute a suit to enforce his or her lien within 60 days after service of such notice shall be extinguished automatically. The clerk shall serve, in accordance with s.713.18, a copy of the notice of contest to the lien claimant at the address shown in the claim of lien or most recent amendment thereto and shall certify to such service and the date of service on the face of the notice and record the notice.
c. Computing the Time Period
While the early bird may get the worm, sometimes early filing simply does not happen for one reason or another. Therefore, it is important to be precise in calculating the 60-day time period to file an action in response to the owner’s Notice of Contest of Lien. In Site-Prep, Inc. v. Tai, the plaintiff filed their complaint to foreclose on the lien 60 days following the date of service, but 61 days if the date of service was included. 472 So.2d 766, 766 (Fla. 5th DCA 1985). The trial court struck down the complaint ruling that the 60-day period included the date of service. Id. However on appeal, the court clarified the rule writing that “the uniform rule in computing time periods is that the first day of the period is excluded from the computation, and the last day is included.” Id.
The takeaways from §713.22 are:
- As a property owner, filing a Notice of Contest of Lien can provide leverage against a lienor’s potentially improper lien and require the lienor to file their lien foreclosure action or lose the privilege; and
- for the lienor, it is important to note that the Notice of Contest of Lien requires timely action on your part to exercise your right to enforce your lien before the right is extinguished.
To read the previous blogs in this series, visit https://www.cobbgonzalez.com/blog/
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