Florida’s Construction Liens Laws: The Claim of Lien
After serving the Notice to Owner and commencement of your scope of work, there may be an instance where your contracting party fails to make payment for labor, services and/or materials rendered. To protect your interest, you may have a right to record a Claim of Lien on the property with which you are performing your work. Chapter 713, Florida Statutes, provides guidance for the necessary steps and timing required to properly record a Claim of Lien on an improved property through the construction process.
a. Timing to Properly Record your Claim of Lien
Florida Statute §713.08 (5) provides the specific timing which one can effectively record a construction lien on a property:
The claim of lien may be recorded at any time during the progress of the work or thereafter but not later than 90 days after the final furnishing of the labor or services or materials by the lienor. However, if the original contract is terminated under s. 713.07(4), a claim for a lien attaching prior to such termination may not be recorded after 90 days following the date of such termination or 90 days after the final furnishing of labor, services, or materials by the lienor, whichever occurs first.
Interestingly, Florida courts have held that “final furnishing” does not include punch-list items, clean-up, warranty or completion of minor changes in the scope of work. When determining final furnishing, the labor, services, or materials must be substantial in nature in furtherance of completing the relevant scope of work.
b. Necessary Language within the Claim of Lien
Florida Statute §713.08 also provides the exact information required to be contained within the Claim of Lien to properly record a lien. The eight requisite items of information are as follows:
(1) The name of the lienor and the add
ress where notices or process under this part may be served on the lienor.
(2) The name of the person with whom the lienor contracted or by whom she or he was employed.
(3) The labor, services, or materials furnished and the contract price or value thereof. Materials specially fabricated at a place other than the site of the improvement for incorporation in the improvement but not so incorporated and the contract price or value thereof shall be separately stated in the claim of lien.
(4) A description of the real property sufficient for identification.
(5) The name of the owner.
(6) The time when the first and the last item of labor or service or materials was furnished.
(7) The amount unpaid the lienor for such labor or services or materials and for unpaid finance charges due under the lienor’s contract.
(8) If the lien is claimed by a person not in privity with the owner, the date and method of service of the notice to owner. If the lien is claimed by a person not in privity with the contractor or subcontractor, the date and m
ethod of service of the copy of the notice on the contractor or subcontractor.
To ensure proper recording and proper information, the Florida’s Construction Lien Law provides a claim of lien form which contains all the necessary language. Using the statutory form will guarantee you have included all the required information to properly record and maintain your construction lien rights:
THIS LEGAL DOCUMENT REFLECTS THAT A CONSTRUCTION LIEN HAS BEEN PLACED ON THE REAL PROPERTY LISTED HEREIN. UNLESS THE OWNER OF SUCH PROPERTY TAKES ACTION TO SHORTEN THE TIME PERIOD, THIS LIEN MAY REMAIN VALID FOR ONE YEAR FROM THE DATE OF RECORDING, AND SHALL EXPIRE AND BECOME NULL AND VOID THEREAFTER UNLESS LEGAL PROCEEDINGS HAVE BEEN COMMENCED TO FORECLOSE OR TO DISCHARGE THIS LIEN.
CLAIM OF LIEN
Before me, the undersigned nota
ry public, personally appeared , who was duly sworn and says that she or he is (the lienor herein) (the agent of the lienor herein ), whose address is ; and that in accordance with a contract with , lienor furnished labor, services, or materials consisting of on the following described real property in County, Florida:
(Legal description of real property)
owned by of a total value of $ , of which there remains unpaid $ , and furnished the first of the items on , (year) , and the last of the items on , (year) ; and (if the lien is claimed by one not in privity with the owner) that the lienor served her or his notice to owner on , (year) , by ; and (if required) that the lienor served copies of the notice on the contractor on , (year) , by and on the subcontractor, , on , (year) , by
See §713.08(3), Florida Statutes for exact lien form.
In addition, Florida’s Construction Lien Law provides guidance as to the proper method of recording the Claim of Lien. “The claim of lien shall be recorded in the clerk’s office. If such real property is situated in two or more counties, the claim of lien shall be recorded in the clerk’s office in each of such counties. The recording of the claim of lien shall be constructive notice to all persons of the contents and effect of such claim. The validity of the lien and the right to record a claim therefor shall not be affected by the insolvency, bankruptcy, or death of the owner before the claim of lien is recorded.” Fla. Stat., §713.08(5).
c. Who must receive service of the Claim of Lien
Next, after properly recording the construction lien in the county (or counties) wherein the relevant property lies, notice/service of the lien is necessary. Florida Statute, §713.08(4)(c) provides “[t]he claim of lien shall be served
on the owner. Failure to serve any claim of lien in the manner provided in s. 713.18 before recording or within 15 days after recording shall render the claim of lien voidable to the extent that the failure or delay is shown to have been prejudicial to any person entitled to rely on the service.”
To properly serve the Claim of Lien, Fla. Stat. §713.18 provides a number of methods with which to complete this task:
1 – By actual delivery to the person to be served;
2 – By common carrier delivery service or by registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by the sender and with evidence of delivery, which may be in an electronic format.
3 – By posting on the site of the improvement if service as provided by paragraph (a) or paragraph (b) cannot be accomplished.
In conclusion, it is imperative that proper language is used within the Claim of Lien and proper service is achieved upon all necessary parties. For more information on lien rights and how they may impact your property, project or business, do not hesitate to contact us via the link below.
For more information, follow us on LinkedIn.
Read more about the author of this blog here.