I.  Introduction

A claim of lien is an encumbrance against real property created by state law for the purpose of securing payment for labor, materials, or services expended to improve the real property. While there are many types of liens, the most important class of liens to contractors and subcontractors working in Florida were traditionally known as “mechanic’s liens.” In 1989, the Florida Legislature allowed the governor to appoint a “Mechanic’s Lien Study Commission. The purpose of the Commission was to suggest changes to the then “Mechanic’s Lien Law, Part One, Chapter 713 Florida Statutes. One of the Commission’s first recommendations to the legislature was to change the name of mechanic’s liens to “construction liens” in order to avoid confusion with the type of lien belonging to an automobile mechanic. As such, Florida Statute, Sections 713.001 through 713.37 is now titled “Construction Liens.”

A thorough knowledge of Florida construction lien law is critical to either a contractor or subcontractor’s enforcement of a construction lien and an owner’s defense against such liens. A working knowledge of the Florida lien law begins with identifying and understanding the statutory procedures to identify, preserve, subordinate, and waive lien rights.

 II.  Florida Statutes, Chapter 713, Part I – Construction Liens

Although construction lien statutes are remedial in nature, they create a right that did not exist in common law. As such, the lien statute is strictly construed against the lien holder and in favor of the land owner. The legislative intent in enacting the statute was to create an equitable remedy for those laborers or suppliers that provided services or material to a project while also protecting an owner from having to pay more than the price of the contract they entered into for services or materials as long as the owner strictly complied with the provisions of the statute. Alton Towers, Inc. v. Coplan Pipe & Supply Co., 262 So. 2d 671 (Fla. 1972).

Florida’s courts have held that the construction lien statute satisfies the requirement of procedural due process under the 14th Amendment. While filing a claim of lien places an encumbrance on property without a prior opportunity to be heard, the statutory scheme does not provide for any taking of the property until after the claim is litigated. Moreover, the statute requires detailed inquiries, and the statutory scheme provides for a variety of post-imposition hearings and the threat of prevailing party attorney fees. Ruocco v. Brinker, 380 F. Supp. 432 (S.D. Fla. 1974).

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W Mason is an associate with the law firm Fox Rothschild LLP. W practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. W focuses his practice on commercial litigation throughout Florida, with an emphasis on construction litigation. You can reach W at (561) 804-4432 or wmason@foxrothschild.com.

 

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