Construction & Real Estate

On May 21, 2014, Florida’s Second District Court of Appeals issued an opinion in Snell v. Mott’s Contracting Services, Inc. affecting construction claims of lien and arbitration proceedings. The court examined the question of whether the award of attorneys’ fees was proper in an arbitration proceeding pursuant to Florida’s Construction Lien Law.

The court held that Section Fla. Stat. § 713.21(1) requires that an “action to enforce a construction lien must be brought ‘in a court of competent jurisdiction’ within one year of recording the claim of lien or it automatically extinguishes.” Moreover, the Court held that an arbitration proceeding is not a “court.”  As such, the lien at issue in this case “became unenforceable pursuant to section 713.22 prior to the issuance of the [arbitration] award” due to the contractor’s failure to file an enforcement action in court within a year.

Given the holding in Snell, it is likely advisable for lien holders to file an action in a court of competent jurisdiction within a year, even if the action is stayed during an arbitration proceeding. Otherwise, lienholders may have difficulty recovering fees or even enforcing a lien to the extent that enforcement in the arbitration proceeding is not complete within year.

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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:

 

Before, beginning, or within 45 days after beginning to furnish labor, materials, or supplies, a lienor who is not in privity with the contractor, except a laborer, shall serve the contractor with notice in writing that the lienor will look to the contractor’s bond for protection on the work. Fla. Stat. § 713.23(1)(c). If a notice of commencement with the attached bond is not recorded before commencement of construction, the lienor not in privity with the contractor may, in the alternative, elect to serve the notice to the contractor up to 45 days after the date the lienor is served with a copy of the bond. A notice to owner pursuant to Fla. Stat. § 713.06 that has been timely served on the contractor is sufficient.

For specially fabricated materials, the 45-day period begins at the time of fabrication. Actual delivery of the materials to the job site is not required because the fabricated material would have no other useful purpose other than for the particular project for which they are fabricated. See Oolite Industries, Inc. v. Millman Const. Co., Inc., 501 So. 2d 655 (Fla. 3d DCA 1987).

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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:

 

Owners of real property in Florida can exempt their property from all future liens at the outset of construction by requiring their general contractor to post a payment bond pursuant to Fla. Stat. § 713.23 or 713.245 before construction begins. In general a payment bond is a contract among the surety, the owner, and the contractor. Generally speaking, if a contractor fails to pay a subcontractor, materialman, or laborer, the surety must assume this obligation thereby protecting the owner’s property from a lien.

In order to properly exempt their property from the lien law, the owner must attach and record a copy of the bond with the Notice of Commencement prior to the beginning of construction. As a result of the bond, an unpaid lienor is protected by the bond rather than an interest in the owner’s property. See Resnick Developers South, Inc. v. Clerici, Inc., 340 So. 2d 1194 (Fla. 4th DCA 1976).

A bond furnished by the contractor must be in at least the amount of the original contract price and the bond must be conditioned on the contractor promptly making payments for labor, services, and material to all lienors under the contractor’s direct contract. Fla. Stat § 713.23(1)(a). Any provision in the bond to the contrary will be disregarded.

Where a payment bond contains a condition limiting the liability of a surety to lienors, that provision of the bond will be disregarded by Florida courts. For example, Florida courts have held that a provision of bond would be invalid and disregarded where it provided that the surety would not be liable to lienors unless the owner has made payments to the contractor. See Cohen v. Lunsford, 362 So. 2d 383 (Fla. 1st DCA 1978).

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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:

 

 

Under Florida’s Construction Lien Law, a lien may be transferred by any person having interest in the real property upon which the line is imposed or the contract under which the lien is claimed from such property by either (1) depositing a sum with the clerk’s office; or (2) filing a surety bond with the clerk. See Fla. Stat. § 713.24(1).

The provisions of Florida’s Construction Lien Law that permit the transfer of the lien are intended to allow a property owner of property to remove a cloud on the title of real property and clear it for sale or additional financing.  The owner may transfer a lien in this manner either before or during a lawsuit on the lien. See e.g. 

The amount of the payment or the bond must be either in the amount demanded in such claim of lien, plus interest thereon at the legal rate for 3 years, plus $1,000 or 25 percent of the amount demanded in the claim of lien, whichever is greater, to apply on any attorney’s fees and court costs that may be taxed in any proceeding to enforce said lien. See Fla. Stat. § 713.24(1). An owner of improved real property is entitled to recover as damages the cost involved in having an invalid construction lien transferred to a bond. See Gentile v. F. Gaudio Tile and Marble Creations, Inc., 596 So. 2d 175 (Fla. 4th DCA 1992).

 

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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:

 

In order for a supplier of materials or a “materialman” to have a construction lien on a property, his product must either be specially fabricated or actually incorporated into the property. Specifically, Florida’s construction lien statute defines “furnish materials” to mean “to supply materials which are incorporated in the improvement including normal wastage in construction operations; or specially fabricated materials for incorporation in the improvement…” It does not include “any design work, submittals, or the like preliminary to actual fabrication of the materials; or supply materials used for the construction and not remaining in the improvement, subject to diminution by the salvage value of such materials; and includes supplying rental equipment, but does not include supplying handtools.” Fla. Stat. § 713.01(13).

I.  Delivery as Proof of Incorporation of Materials into the Project 

Because it can be impractical for a materialman to prove that the products he furnished to a subdivision project were actually incorporated into the project, Florida law dictates that a showing that the materials were delivered to the project site is prima facie evidence that the materials were, in fact, incorporated into the subdivision.” Fla. Stat. § 713.01(13). To be entitled to the benefit of this presumption, “evidence must be presented which establishes that materials were, in fact, delivered to project…” American Ins. Co. v. Coley Elec. Supply Co., Inc., 354 So. 2d 390 (Fla. 1st DCA 1978). The materialman bears the burden of proof of delivery or special fabrication before being entitled to the presumption.

II.  What Evidence is Sufficient for Delivery?

In Dublin Co. v. Brady Sales, Inc., 380 So. 2d 1095 (Fla. 5th DCA 1980), the Court held that testimony by the president of a material supplier was sufficient evidence for purposes of establishing delivery and taking advantage of the prima facie presumption of incorporation. However, in Beautyware Plumbing Supply Co. v. Columbiad Apartments, Inc., 215 So.2d 42, 44 (Fla. 4th DCA 1968), the Court held that proof that a materialman delivered product to the contractor, without a showing that the delivery occurred at the project site, was insufficient as a matter of law to establish a construction lien in favor of the materialman.

III.  Special Fabricators

Fabricators of custom and specially designed products are governed by a different rule when it comes to incporation. To the extent that a materialman can establish that the product he produced was specially fabricated for a particular project, the materialman can establish entitlement to a lien. This is true regardless of whether the materials were actually delivered to the job site. See Oolite Indus., Inc. v. Millman Const. Co., Inc., 501 So. 2d 655, 656 (Fla. Dist. Ct. App. 1987). In order for a product to be considered “specially fabricated” under Florida’s Construction Lien Law, the materials must be “materials which are ‘not generally suited for nor readily adaptable to use in’ a like improvement.” Surf Properties, Inc. v. Markowitz Brothers, Inc.75 So.2d 298, 302 (Fla.1954). In other words, the specially fabricated materials must have been designed for the particular project and not be appropriate for use in a similar project. To illustrate, in Stunkel v. Gazebo Landscaping Design, Inc., 660 So. 2d 623 (Fla. 1995), the Florida Supreme Court held that trees selected by homeowners for installation at their property by a landscaper were “specially fabricated materials.” Ultimately, as long as the parties intended the specially fabricated products to be incorporated into the improvement, the special fabricator can establish a lien regardless of delivery assuming the other requirements of the statute are met.

IV.  Alternative Approaches

It is also permissible for a witness to testify that he or she can identify the materialman’s product in the finished improvement. See Florida East Coast Properties, Inc. v. Coastal Const. Products, Inc., 553 So. 2d 705 (Fla. 3d DCA 1989). In this respect, it may be possible for a materialman to establish either through lay or expert testimony that his or her products were delivered to the job site.

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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:

 

Florida construction lien law specifically addresses the situation where one performs services or furnishes materials for the purpose of making a site suitable for construction of an improvement. This typically occurs in the context of subdivisions. Under Fla. Stat. § 713.04, any lienor who, regardless of privity, performs services or furnishes material to real property for the purpose of making it suitable as the site for the construction of an improvement or improvements shall be entitled to a lien on the real property for any money that is owed to her or him for her or his services or materials furnished in accordance with her or his contract and the direct contract. The total amount of liens permitted shall not exceed the amount of the direct contract under which the lienor furnishes labor, materials, or services.

I.  Subdivision Improvements Specifically Covered by Fla. Stat. § 713.04

The subdivision improvement work covered by Fla. Stat. § 713.04 includes, but is not limited to, the following work:

  • grading, leveling, excavating, and filling of land, including the furnishing of fill soil;
  • grading and paving of streets, curbs, and sidewalks;
  • construction of ditches and other area drainage facilities;
  • laying of pipes and conduits for water, gas, electric, sewage, and drainage purposes; and
  • construction of canals;
  • the altering, repairing, and redoing of any of the above.

II.  Liens on Abutting Land

The statute provides specific rules related to public use areas in subdivisions. For instance, when “services or materials are placed on land dedicated to public use and are furnished under contract with the owner of the abutting land, the cost of the services and materials, if unpaid, may be the basis for a lien upon the abutting land.” Fla. Stat § 713.04. For land to be considered “abutting” is must be continuous. There can be no intervening land. See Davis Water & Waste Industries, Inc. v. Embry Development Corp., 603 So. 2d 1357 (Fla. 1st DCA 1992).

Moreover, when “services or materials are placed upon land under contract with the owner of the land who subsequently dedicates parts of the land to public use, the person furnishing the services or materials placed upon the dedicated land shall be entitled to a lien upon the land abutting the dedicated land for the unpaid cost of the services and materials placed upon the dedicated land.” In the case of improvements that “serve or benefit real property that is divided by the improvements,” the provider shall be entitled to “a lien upon each abutting part for the equitable part of the full amount due and owing to the provider.” Fla. Stat. § 713.04. If the part of the cost to be borne by each parcel of the land subject to the same lien is not specified in the contract, “it shall be prorated equitably among the parcels served or benefited.”

III.  Notice and Recording Requirements for Subdivision Lienors

A.  Claim of Lien

In order to be entitled to a construction lien, a provider of services or materials must record a lien within 90 days of the last work or furnishing of materials at the job site. See Aronson v. Keating, 386 So.2d 822 (Fla. 4th DCA 1980).The claim of lien must be served on the owner within 15 days of recording. Fla. Stat. 713.08(4)(c).

B.  Notice to Owner

Florida law does not require that a subdivision lienor serve a notice to owner regardless of privity. However, by electing to serve a notice to owner, the non-privity lienor obligates the owner to see that the lienor is paid to the extent that payments are made to the contractor. Fla. Stat. § 713.04(2).

C. Notice of Commencement

The legislature specifically precludes subdivision lienors from the requirement they record a notice of commencement. See Fla. Stat. § 713.04(1)(“[n]o notice of commencement shall be filed for liens under this section.”). This is primarily because a properly recorded claim of lien relates back to the date of a properly recorded notice of commencement. Therefore, institutional lenders would be remiss to make a mortgage loan to a developer where notices of commencement have already been recorded against the subdivision property because the construction lien would have priority over the lender’s mortgage due to the fact that it relates back to the notice of commencement. Therefore, this specific preclusion serves to allow developers to make preparations for improving property even when financing for the improvement has not yet been secured.

D.  Contractor’s Final Affidavit

The recent amendments to Fla. Stat. § 713.04 have made it clear that a contractor providing a subdivision improvement must comply with Fla. Stat. § 713.06(3)(d) by serving a contractor’s final affidavit in order to receive final payment. In the event that the owner makes a final payment without obtaining a the contractor’s final affidavit, the contractor has made an “improper payment.” In other words, such a payment would not serve to limit the owner’s liability when measured against the contract price pursuant to Fla. Stat. § 713.06.

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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:

Previously in this series, I discussed the property that could be the subject of a construction lien. In this part, we take a look at the definition of improvement and the “permanent benefit” requirement.

The Florida Construction Lien Law defines an “improvement” as “any building, structure, construction, demolition, excavation, landscaping, or any part thereof existing, built, erected, placed, made or done on land or other real property for its permanent benefit.” Fla. Stat. § 713.01(15)(emphasis added). Florida courts have been clear that items that are not permanent do not create enforceable construction liens. However, “permanent benefit” does not mean that the land must be made more valuable because of the addition. Rather, any permanent addition to the real property is considered an improvement. See E & E Elec. Co. v. Gold Coast 72nd St. Diner, Inc., 116 So. 2d 660 (Fla. 3d DCA 1959).

I.  Permanency

To illustrate, courts have held that residential cleaning, maintenance, and concierge services provided on behalf of condominium association did not constitute improvements to real property, and thus, were not lienable in a collection action by cleaning service. See Parc Cent Aventura East Condominium v. Victoria Group Services, LLC, 54 So.3d 532 (Fla. 3d DCA 2011). Further, a lien filed by construction company was found to be fraudulent because it included nonlienable items such as pool upkeep charges, lawn maintenance charges, homeowner’s association fees and utility charges. See Levin v. Palm Coast Builders and Const, Inc., 840 So.2d 316 (Fla. 4th DCA 2003). Moreover, a potential lienor was not entitled to construction lien on a shopping mall property for the assembly of a kiosk where trial court found that such structure was not of permanent benefit to the mall and hard-wiring into electrical outlet available at site did not make kiosk a ‘permanent improvement.’ Palm Beach Mall, Inc. v. Southeast Millwork, Inc., 593 So.2d 1121 (Fla. 4th DCA 1992). Finally, one court has held that wall-to-wall carpeting placed in apartment building was an improvement, and, therefore, supplier of such carpeting had no lien upon the real property where it was installed. See Fell v. Messeroff, 145 So.2d 238 (Fla. 3d DCA 1962).

II.  Benefit

While it may appear from the definition that an “improvement” should increase the value of the property to the owner, Florida courts have decided that it is not their duty to weight the relative advantage of structures erected on land in determining whether a lien is enforceable. Rather, where there is a permanent addition to real property, a construction lien may be enforceable. See E & E Elec. Co., 116 So. 2d at 662.

In Rosenholz v. Perrine Development Company, 340 So.2d 1264 (Fla. 4th DCA 1976), the Fourth District examined a case where material was removed from land to create a lake for lake front property. The company that rented equipment for excavation to the developer sued the property owner for enforcement of a construction lien on the property. The court found that while the excavation did not increase the value of the land, the improvement constituted an improvement and permitted the enforceable lien.

In sum, Florida courts have strictly interpreted the “permanency” portion of the definition of “improvement” while giving a more liberal effect to the requirement that an improvement “benefit” a particular property. As such, potential lienors should carefully consider the character of the potential improvement in order to understand whether enforceable liens will be created.

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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:

 

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:

Pursuant to the Construction Lien Law statute, a laborer is any person other than an architect, landscape architect, engineer, surveyor and mapper, and the like who, under a properly authorized contract, personally performs on the site of the improvement labor or services for improving real property and does not furnish materials or labor service of others. Fla. Stat. § 713.01(14). In this context, “perform and “furnish” means performance or furnishing by the lienor or another for the lienor. Fla. Stat. § 713.01(22). The definition restrains employers of laborers from filing and foreclosing a construction lien as a “laborer” where the employer pro

A laborer whom is not in privity with the owner, or a subcontractor or sub-subcontractor who complies with the provisions of the lien law has a lien on the real property improved for any money that is owed to him or her for labor furnished in accordance with his or her contract and with the direct contract and for any unpaid finance charges due under the his contract. Fla. Stat. § 713.06. Additionally, Fla. Stat. § 713.02(4) provides that persons who are not in privity with an owner and who perform labor constituting a part of an improvement under the direct contract of another person shall have rights to a lien on real property as provided in section 713.06. Laborers are specifically excluded from serving a notice on the owner setting forth the laborer’s name and address. Fla. Stat. § 713.06(2)(a).

In Rutenberg-Sarasota, Ltd. V. Eisner, 509 So. 2d 398 (Fla. 2d DCA 1987), the Second District Court of Appeal examined a situation where the employees of a subcontractor brought a suit seeking recovery against mechanic’s lien bonds posted by an owner and a contractor. The circuit court had entered final judgment in favor of the employees. The contractor appealed arguing that the employees were not laborers under the lien law. The court found that where the employees performed their work under an employment contract with their employer, and that employment contract contemplated the improvement of the subject real property, the employees were laborers under the law and entitled to enforce their construction lien.

On the other hand, in Sprinkler Fitters and Apprentices Local Union No. 821, U.A. v. F.I.T.R. Service Corp., 461 So.2d 144 (Fla. 3d DCA 1985), the Court came to the opposite conclusion where the contract at issue was a collective bargaining agreement. There, the court held that a collective bargaining agreement was not a properly authorized contract under the construction lien law because it did not contemplate the improvement of any real property.

While laborers do not have provide notices to owners, a person seeking to enforce a construction lien as a laborer must meet the threshold requirement of providing labor to real property himself or herself pursuant to a properly authorized contract in accordance with Rutenberg-Sarasota and Sprinkler Fitters. Once that requirement is met, a laborer can enforce a lien on real property regardless of privity with the owner.

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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:

Under Florida’s Construction Lien Law, a “materialman” is a person who furnishes materials under contract to the owner, contractor, subcontractor, or sub-subcontractor on the site of the improvement or for direct delivery to the site of the improvement. A materialman may deliver specially fabricated materials off the site of the improvement. By definition, a materialman performs no labor in the installation of the materials. Fla. Stat. § 713.01(20).

Florida Construction Lien Law provides that a materialman who is in privity of contract with the owner, and who complies with the provisions of the Construction Lien Law statutes has a lien on improved real property for money that is owed to him or her for the materials. A materialman in privity with the owner shall also have a lien on the owner’s real property for any money that is owed to him or her for labor, services, or materials furnished to improve public property, if the improvements to the public property are a condition of the permit to improve the owner’s real property. Fla. Stat. § 713.05.

A materialman who is not in privity has a lien on improved real property for money that is owed to him or her for the materials and any finance charges due under his contract. Fla. Stat. § 713.06(1).  A materialman who is not in privity with the owner also has a lien on the owner’s real property for labor, services, or materials furnished to improve public property, if the improvement of the public property is furnished in accordance with his or her contract and with the direct contract. Fla. Stat. § 713.06(1)

In Associated Distributor, Inc. v. Mix, a supplier of appliances brought a lawsuit to foreclose a construction lien on property owned by Mary Mix.  440 So. 2d 516, 517 (Fla. 4th DCA 1983). The Fourth District Court of Appeals held that there was competent evidence to support a finding that Associated merely supplied the contractor with bulk order materials such as appliances which were in turn used by the contractor at its discretion in various construction projects. Because the appliances supplied to the contractor were not necessarily intended for delivery to the Mix property, Appliances was not considered a “materialman” entitled to enforce a construction lien pursuant to Florida law. As a result, Appliance’s construction lien was deemed fraudulent and Mix was awarded attorneys’ fees.

While the Contraction Lien Law specifically states that one who performs installation labor cannot be a materialman, a materialman is permitted to repair or replace defective materials provided to an improvement. See Robert C. Malt & Company, Inc. v. Chambers Truss, Inc., 522 So. 2d 430 (Fla. 4th DCA 1988).

The provisions of the Construction Lien Law applicable to materialmen are somewhat more relaxed than for contractors or subcontractors. For instance, materialmen are not required to furnish owner’s with a Contractor’s Final Affidavit. Qualifying as a materialman under the Florida Construction Lien Law forbids the supplier from providing installation labor and requires the supplier to provide the materials to a specific property. If the supplier fails to qualify as a materialman under the law and fails to take the necessary steps to perfect the lien as a contractor, the lien may be unenforceable.

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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: