Pursuant to the Florida Statute, Section 713.03, a person performing professional services has a lien on the improved real property for money that is owed to him or her for his or her services used in connection with improving the real property or for his or her services in supervising any portion of the work of improving the real property. The services or supervision must be rendered in accordance with the professionals contract and with the direct contract with the owner. A “professional” for purposes of the statute is “an architect, landscape architect, interior designer, engineer, or surveyor and mapper.” The services must be performed relative to the improvement of a specific parcel of real estate. The First District has held that an architect’s services as an expert witness in arbitration did not relate to improvement of real property and therefore the architect was not entitled to a lien pursuant to Florida Statute, Section 713.

In Warsaw v. Pyms, 266 So. 2d 355 (Fla. 3rd DCA 1972) an engineer filed an action under the construction lien law for enforcement of a lien for engineering services alleged to have been performed in connection with land owned by the defendants.  In Warsaw, the owners had contracted with an architect, and the architect’s contract called for the provision of engineering services. The engineer argued that the a contract between the engineer and the owner was made through the architect as the owner’s agent. After the trial court entered summary judgment in favor of the land owners, in part, on the basis that no contract had been entered into between the parties. Id.

In examining the question of whether there was a contract between the parties, the Warsaw court held that a direct contract is not required to arise out of “face to face personal confrontation between the parties.” Id. at 356. Rather, the court held that an owner of real estate could become obligated to an engineer for professional relating to his property by a contract which is made with the engineer through an agent, such as an architect, as effectively as if the parties had entered into a contract in a face to face situation. Id.

Subpart (2) of section 713.03 specifically limits the right to claim a lien on property which is not actually improved to “architects, interior designer, engineer, or surveyor and mapper.” Section 713.01(1), Florida Statutes, defines “architect” as a person or firm authorized to practice architecture pursuant to chapter 481 or a general contractor who provides architectural services under a design-build contract authorized by s. 481.229(3). This definition specifically includes unlicensed persons acting pursuant to one statutory exemption from licensure, i.e., section 481.229(3).

In Alfred Karram v. Cantor, , the court held that a corporation that performed architectural and related services in designing single family home (which was never built), and thus fit within architect licensing statutes’ exemption for persons who make plans for one-family or two-family resident buildings, was not an “architect” within meaning of 713.01. See Karram, 634 So. 2d 210 (Fla. 41th DCA 1994). As such, the court held that the corporation was not entitled to a construction lien for services performed regardless of whether real property is actually improved. Moreover, Florida law is clear that an architect who is not licensed in Florida is not permitted to take advantage of Florida’s construction lien law. O’Kon v. Riedel, 540 So. 2d 836 (Fla. 1st DCA 1989).

In sum, professional service providers can take advantage of the construction lien law if (1) they have an enforceable contract with the owner, and (2) are properly licensed pursuant to the definitions section of Florida Statute, Section 713.01. Liens can be enforced even where improvements have not been made to the land under certain circumstances. Care should be taken to ensure that professionals’ contracts with the owner are enforceable and that the work being performed is within the scope of work performed by a professional pursuant to Florida Statute, Section 713.03. Otherwise, a construction lien may not be enforceable.

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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. Below are some recent posts W has written on Florida Construction Lien Law: