BASICS OF FLORIDA’S CONSTRUCTION LIEN LAW
PART I – DRAFTING AND RECORDING A CLAIM OF LIEN IN FLORIDA
This is part 1 of a 3-part series of blogs on the basics of drafting and recording construction liens in Florida. This first blog focuses on how to properly draft and record a construction in Florida. Part 2 addresses important deadlines for construction liens and some of the common responses to a construction lien. Part 3 addresses fraudulent construction liens.
Basic Requirements for a Construction Lien
Pursuant to 713.08, Florida Statutes provides the requirements for a properly drafted claim of lien which include basic information about the lienor such as the name and address of the lienor, the labor and/or services provided by the lienor, the price and/or value of those services, as well as basic information about the property against which the lien is filed including the owner’s name and a proper description of the property.
A proper legal description should be obtained for the property at issue. The legal description provided on a county property appraiser’s website is often not a proper legal description and should not be relied upon. A proper legal description can often be obtained by pulling the most recent deed for the property at issue from the Public Records of the applicable county. If you are in doubt as to the proper legal description, you should contact an attorney for help.
The contractor drafting the claim of lien must, in good faith, calculate the final amount owed on a project. The failure to properly and in good faith calculate the total amount of the lien may render the lien fraudulent under Section 713.31, Florida Statutes. If the lien is ruled fraudulent, the contractor may be subject to penalties including attorneys’ fees and costs incurred by the property owner in removing the lien or defending an action to enforce the lien. For more information on fraudulent liens, see part 3 of this blog series.
Properly Recording and Serving a Claim of Lien
A claim of lien must be recorded in the Public Records of the county where the property at issue is located. Each County’s Recording Department may have a different method for recording: some counties allow businesses to record liens through an online portal others require that a copy of the executed lien be physically delivered to the appropriate office. A contractor should refer to each county’s Recording Department for specific instructions.
The claim of lien must be served within fifteen (15) days after recording. Prior to or at the time of recording a claim of lien, a direct contractor must also serve a “Contractor’s Final Payment Affidavit.” The Contractor’s Final Payment Affidavit must meet the requirements set out in Section 713.06, Florida Statutes.
A claim of lien or any other instrument under Chapter 713, Florida Statutes must be served according to Section 713.18, Florida Statutes. The simplest method of service is via Certified Mail Return Receipt Requested. If a lien is not properly served within fifteen (15) days, then the lien is rendered voidable to the extent that the failure or delay in service is prejudicial to the property owner. See Section 713.08, Florida Statutes.
Drafting and recording a construction lien in Florida should be done with great care as the failure to comply with the strictures of Florida’s Construction Lien Law can cost a contractor his lien. It is important that a homeowner knows that a contractor’s failure to follow these requirements can provide a defense to the enforcement of a claim of lien.
The Boatman Law Firm’s attorneys are experienced in drafting and enforcing claims of liens for contractors as well as defending homeowners against wrongfully filed claims of lien. If you need assistance in either area please contact the Boatman Law Firm at (239) 330-1494.
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