Florida Statute § 713.03, titled “Liens for Professional Services,” governs mechanic liens for services performed by architects, including landscape architects, interior designers, engineers and surveyors. The section has three subparts. Section 713.03(1) provides that an architect, engineer or certain specified professionals shall have a lien on real property improved, for money owed for services in preparing plans, specifications or drawings used in connection with improving the real property or for services that include supervising any portion of the work of improving the property. Warshaw v. Pyms, 266 So.2d 355 (Fla. 3d DCA 1972)(Emphasis in the original). Section 713.03(1) applies to services related to the improvement of property “rendered in accordance with his or her contract and with the direct contract.” Section 713.03(2), on the other hand, applies for services rendered by a professional concerning real property where the intended improvement to the property was never made. Warshaw at 356. Under these circumstances, the professional has a lien for the amount of such services under a “direct” contract with the owner (versus acting under a subcontract). Id.
Establishing a “Direct Contract”
An issue that sometimes arises when enforcing a mechanic’s lien is whether the professional can show the existence of a direct contract as required under section 713.03. In Warshaw, the trial court found that in order for an engineer and an owner to have a direct contract, there must exist a “face to face personal confrontation of the parties.” Warshaw 266 So.2d at 357. On appeal, the Third District disagreed, finding that a property owner can become directly obligated to a professional under Fla. Stat. § 713.03 through a contract with an agent of the owner. Id.
In deciding the scope of the term “direct contract,” the Warshaw court expanded the definition to include the performance of services by the professional under a contract that is either express or implied. Id. The court also considered whether privity of contract existed between the owner and the professional. Id. at 357-58, citing First Nat. Bank of Tampa v. Southern Lumber & Supply Co., 145 So. 594, 597 (1932)(holding that privity with an owner exists when a creditor, in furnishing materials or performing labor, acted based on the owner’s obligation, express or implied, to pay as a primary debtor).
Compliance with Professional Regulations Relevant
Section 713.03(1) provides liens for “[a]ny person who performs services as an architect, landscape architect …” Similarly, section 713.03(2) grants liens to professionals “who in the practice of his or her profession shall perform services …” Courts construing these sections have found that a professional in violation of professional regulation statutes does not satisfy the strict requirements of Florida’s mechanic’s lien statute. See O’Kon and Company, Inc., v. Riedel, 540 So.2d 836 (1st DCA 1989).
In O’Kon, a Georgia design and engineering firm filed a mechanic’s lien stemming from a Florida hotel project. In response to the mechanic’s lien, the property owner filed suit alleging, among others, slander of title and an invalid lien. Id. at 836-37. The trial court granted summary judgment to the property owner, finding that the engineering firm was not a registered architect in Florida. On appeal, the engineering firm argued that it acted as a project manager and was therefore not required to satisfy the regulatory provisions governing architects. Id. at 839. The appellate court disagreed, finding that to allow an entity to receive a mechanic’s lien “in violation of the professional regulation statutes would render attempts at professional regulation ineffective.” Id. at 840. To rule otherwise would be contrary to legislative intent. Id.
Despite the fact that sections 713.03(1) and (2) use different language to describe professionals entitled to a lien, neither provision allows a professional to receive a mechanic’s lien for architectural services performed while not in compliance with state statutes governing the practice of architecture. O’Kon, 540 So.2d at 841. The First District in O’Kon found that the engineering firm seeking a mechanic’s lien failed to comply with “the statutory provisions regarding certificate of authority, registration or licensing.” Id. Mechanic’s liens are “creatures of statute” and must therefore be strictly construed. Id. citing Falovitch v. Gunn & Gunn Construction Company, 348 So.2d 560 (Fla. 3d DCA 1977). Unless a mechanic’s lien is created according to the terms of the statute, the lien does not exist. Id., citing Fell v. Messeroff, 145 So.2d 238, 239 (Fla. 3d 1962). By failing to satisfy the regulatory requirements for architects, the engineering firm in O’Kon could not satisfy the requirements of the mechanic’s lien statute. Accordingly, the firm was not entitled to a lien. O’Kon at 842.
Jason Cornell is an equity partner with the law firm Fox Rothschild LLP. Jason practices in Fox Rothschild’s Litigation and Financial Services departments. Jason focuses his practice on commercial litigation, including representing contractors, subcontractors and property owners in construction-related litigation. You can reach Jason at (561) 804-4415 or firstname.lastname@example.org.