If a potential lienor (person holding the lien) fails to comply with the statutory rules to enforce a lien, it may extinguish the lienor’s rights to claim against the debtor’s property. Keep reading to discover how to enforce a construction lien in Florida.
How Do I Enforce a Construction Lien in Florida? – An Introduction
Under state jurisdiction, if the owner of a property fails to pay the owed amount for construction service providers or material suppliers, the injured party has the right to file a lien against the property.
It is fundamental to understand the Florida construction lien law has two purposes:
- Providing construction professionals and material suppliers with a security interest against the debtor’s property
- Ensuring no unfair treatment against property owners incurred by errors in lien documentation
Florida law provides certain tolerance for defective liens, as long as property owners are not “adversely affected” by the defect. Depending on the circumstances, lien holders can amend defective liens to correct discrepancies or add/remove information.
Filing a defective lien against property may result in lien disputes. When enforcing a lien, the best approach for potential lienors is to consult with an expert attorney in Florida to ensure claims are as accurate as possible.
Enforcing a Construction Lien in Florida – Step-by-Step
Filing Notice to Owner
No lien can be filed against the property before the claimant files Notice to Owner. The Notice must include:
- The lienor’s name
- The lienor’s address
- A full description of the real property
- A detailed description of the nature of the services or materials furnished by the lienor
The owner of the property must receive the Notice to Owner before (or within 45 days) the furnishing of construction services or materials is commenced. The lienor’s failure to comply with this requirement hinders the attachment of a lien to the debtor’s property.
As provided by Florida Statutes §713.06(2)(a), the notice must be served “regardless of:
- The method of payments by the owner, whether proper or improper, and does not give to the lienor serving the notice any priority over other lienors in the same category, and
- The failure to serve the notice, or to timely serve it, is a complete defense to enforcement of a lien by any person”
The same statute adds that “the serving of the notice does not dispense with recording the claim of lien. The notice is not a lien, cloud, or encumbrance on the real property nor actual or constructive notice of any of them.”
Recording the Lien
Once the notice is served, the lienor must provide a final payment affidavit to the debtor. The language used in the document must follow the standard described by Florida Statutes §713.06(3)(d).
After the owner’s receipt of the final affidavit, the lien must be recorded. If a lien is recorded adequately, the lienor can initiate the process of foreclosure.
Florida Statutes §713.13 (1)(a) describes that the lienor “shall record a notice of commencement in the clerk’s office and forthwith post either a certified copy thereof or a notarized statement that the notice of commencement has been filed for recording along with a copy thereof.”