What is a Fraudulent Lien Under Florida’s Construction Lien Law?
In situations involving construction lien foreclosures, it is not uncommon for owners or their attorneys to assert that a construction lien is “fraudulent” in an attempt to defeat the lien. However, Florida law sets forth specific factors required for a court to determine that a construction lien is fraudulent. Fraudulent liens are governed by section […]
Introduction to the Florida Construction Lien Law
Florida’s Construction Lien Law is a statutorily-created method for placing a lien on real property the fundamental purpose of which is “to protect those that have provided labor and materials for the improvement of real property.” WMS Construction, Inc. v. Palm Springs Mile Assoc., Ltd., 762 So. 2d 973 (Fla. 3d DCA 2000). The purpose […]
Misinformation in NOC? Your Florida Construction Lien May Be Enforceable
Where a lienor detrimentally relies upon misinformation contained in the notice of commencement such as an incorrect description of the real property when preparing its lien-related filings, the property owner is estopped from relying upon the lienor’s use of the misinformation as a defense. See Symons Corp. V. Tartan-Lavers Delray Beach, Inc., 456 So. 2d […]
Florida Construction Liens with Errors are Likely Still Enforceable
If the time for filing an initial construction lien has not expired, a construction lien containing an error or omission can be amended. Even if the time for amending an initial construction lien has expired, a construction lien containing an error or omission may still be enforceable. The burden is on the owner or other […]
Criminal Penalties for the Misapplication of Construction Funds in Florida
By: Barry Kalmanson Florida law provides criminal penalties for a person, firm or corporation (or an agent, officer or employee thereof) who knowingly and intentionally misapplies construction funds. Section 713.345, Florida Statutes defines the misapplication of construction funds as receiving payment on account of improving real property and not disbursing the funds due and owing […]
When Must a Lienor Serve a Contractor’s Final Payment Affidavit in Florida?
A contractor’s final payment affidavit must state that all lienors under direct contract with the contractor who have timely served a notice to owner on the owner and the contractor have been paid in full or, if otherwise, must show the name of each lienor who has not been paid in full and the amount […]
Priority of Construction Liens in Florida
Under Florida law, the standard priority rule of construction liens is first in time; first in right. Florida’s Construction Lien Law creates an exception to this rule where a notice of commencement is in effect. In that circumstance, a construction lien recorded where the notice of commencement is in effect (not terminated or expired) attaches […]
Notice to Owner Not Required Where the Owner and Contractor Share Common Identity
To perfect a construction lien, lienors who do not have a direct contract with the owner and are not performing subdivision improvements are required to serve a notice to owner. The warnings in the notice owner advise the owner to make sure subcontractors and material suppliers are paid before the owner pays the contractor, which […]
When Must a Lienor Serve a Contractor’s Final Payment Affidavit in Florida?
Under Florida’s Construction Lien Law, a contractor is defined as “person other than a materialman or laborer who enters into a contract with the owner of real property for improving it or who takes over from a contractor” the remaining work under the original contract. It is important to remember that certain trades could be […]
Service Requirements for Copies of Construction Liens in Florida
Florida law requires that a copy of the construction lien be served on the owner of the real property “before recording or within 15 days after recording” the construction lien. Although a lienor is only required to serve a copy of the construction lien on the owner, as soon as a construction lien is signed […]