Florida Construction Law

Zak Rhodes v. Newport Building and Construction, Inc. , 37 Fla. L. Weekly D4091b, Case No. 2D10-3006, filed May 4, 2012: Order foreclosing construction lien on incomplete residence was reversed, because the property owner had already paid contractor the amount of an arbitration award for damages cause by breach of contract. In addition, the trial court’s determination that the contractor was entitled to attorney fees was dismissed as a non-final non-appealable final order.   Editor’s Note: This case did not discuss that the lien included the balance due on the contract for the incomplete work, but the arbitration award included a major set off in favor of the owner. (from RPPTL Subcommittee). Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

The Cool Guys, LLC v. Jomar Properties and Accredited Surety , 37 Fla. L. Weekly D574a, Case No. 4D10-4206, filed March 7, 2012. Affirmed the trial court’s summary judgment in favor of owner and surety on a transfer bond that was posted during the pendency of the lien foreclosure, and held that s. 713.24(4), as amended in 2005, precluded the subcontractor from bringing a claim on the transfer bond more than two (2) years after the lien was transferred to bond by requiring that such a claim must be filed within one (1) year after the transfer bond was posted. Note: This opinion is contrary to American Fire v. Davis Water , 358 So. 2d 225 (Fla. 4 th DCA 1978), aff’d , 377 So. 2d 164 (Fla. 1979), but that case was decided prior to the statutory amendment. (from RPPTL subcommittee). Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Ricardo O. Wolfe, II and H. Michelle Wolfe v. Culpepper Constructors, Inc., 37 Fla. L. Weekly D505a, Case No. 2D10-3670, filed February 29, 2012. Contractor sought foreclosure of construction lien for $91,261.65, which was reduced to an award of only $9,074.06 after offsets for owners’ counterclaim for defective workmanship, after contractor had rejected a joint settlement offer of $25,000 made by owners pursuant to section 768.79, Florida Statutes (2006), and Fla. R. Civ. P. 1.442(c)(3). After citing concerns and observations by other courts that this statute and rule have not seemed to have their desired affect of reducing litigation, the court held that the trial court’s denial of fees to the owners was error, and reversed and remanded on this issue. (from RPPTL Subcommittee). Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

713.08, Fla. Stat. provides that:   (2) The claim of lien may be prepared by the lienor or the lienor’s employee or attorney and shall be signed and sworn to or affirmed by the lienor or the lienor’s agent acquainted with the facts stated therein. A Notice to Owner company cannot prepare the claim of lien unless they have an attorney prepare it.  To do so, would be the unlicensed practice of law. Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Unless otherwise accelerated, the statute of limitations for a lien claim is one year from the date of recording. Trent Cotney 1207 N Franklin St, Ste 222 Tampa, Florida  33602 (813) 579-3278 www.trentcotney.com

The fact that a contractor has lien rights does not waive the right to arbitration.  Lien claims are normally stayed pending resolution of the matters that are arbitrated. Genstar Southern Development Corp. v. Troup Bros., Inc. , 396 So.2d 211 (Fla. 3d DCA 1981).   Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

MHB Construction Services v. RM-NA HB Waterway Shoppes, LLC , Case No. 4D10-3053 and 4D11-363, filed November 23, 2011: Affirmed trial court’s holding that contractor was NOT entitled to foreclose a construction lien against landlord’s interest where landlord had complied with s. 713.10(2) by recording a “blanket” lien prohibition notice, even thought lease expressly provided that tenant would make improvements and be reimbursed by landlord for 10% of those costs. In this case, even though landlord had signed the Notice of Commencement, the tenant was reflected as the owner of the leasehold interest. (from RRPTL Construction Committee). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Prior to filing a lien, a lienor who does not have a direct contract with the owner, must serve the owner with a Notice to Owner.  The Notice to Owner must state the lienor's name and address, and a description of the real property and the nature of the services or materials being furnished. The Notice to Owner must be served before commencing, or within 45 days of commencing, to furnish the services or materials (but before owner's final payment to the contractor). A lien cannot be enforced unless the lienor has served the Notice to Owner as described above.   (excerpt from www.myfloridalicense.com). Trenton H. Cotney Florida Bar Certified in Construction Law www.trentcotney.com

Construction liens apply to private property only and cannot encumber government-owned property.  Section 713.01, Florida Statutes. Trenton H. Cotney Florida Bar Certified in Construction Law www.trentcotney.com

A false payment application does not, in and of itself, invalidate an otherwise valid claim of lien.  CDC Builders, Inc. v. Rivera Almeria, LLC , 51 So.3d 510 (Fla. 3d DCA 2011) (also discusses criminal sanctions for misapplication of funds and signing a false pay app). Trenton H. Cotney Florida Bar Certified in Construction Law Glenn Rasmussen Fogarty & Hooker, P.A. 100 S. Ashley Dr., Suite 1300 Tampa, FL 33602 (813) 229-3333 www.trentcotney.com

One way to remove an invalid claim of lien is to obtain a lien transfer bond and transfer the lien to the bond.   See 713.24, Florida Statutes. Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

"Actual notice that a materialman is providing materials to a project, therefore, is insufficient to satisfy the notice requirements of Section 713.23(1)(c) . A subcontractor is not excused from the notice requirement of Section 713.23(1)( c) even where the owner, surety or contractor did not fully adhere to the requirements of chapter 713, Florida Statutes. See Prof'l Plastering & Stucco, 940 So.2d at 448 (“[E]ven if the Subcontractor is correct that the Owner, the Surety, and the Contractor did not fully adhere to the requirements of chapter 713, the Subcontractor [is] not excused from complying with the requirements of Section 713.23  that it provide notice ....” (quoting Bridgeport, Inc. v. Tampa Roofing Co., 903 So.2d 306, 309 (Fla. 2d DCA 2005) )." Stock Building Supply of Florida, Inc. v.  Soares Da Costa Construction Services, LLC , 2011 WL 2694522 (Fla. 4th DCA October 5, 2011). Trenton H. Cotney Board Certified in Construction Law Tren...

The fraudulent lien statute is contained in Section 713.31, Florida Statutes and discusses the penalties for recording a fraudulent lien.   Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

This is part IV to the Florida Construction Lien Law seminar.  The seminar continues the discussion of perfecting lien claims and lienable services.  Here is a direct link:  http://www.youtube.com/watch?v=Il_tOwsp_G8 Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Expert witness fees may not be included in a claim of lien.   Swedroe v. First American Inv. Corp ., 565 So.2d 349 (Fla. 1st DCA 1990). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

An owner was entitled to attorney's fees against a plumbing contractor on the plumbing contractor's lien claim, because a 713.23 private payment and performance bond had been posted for the project.  United Plumbing and Heating Inc. v. Goldberger , 452 So.2d 591 (Fla. 4th DCA 1984). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Section 713.08, Florida Statutes contains the current claim of lien form that should be used by lienors in Florida.  Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Subtiers may use liens to attach to the owner's real property interest.  However, there is some support that a subtier contractor or supplier can sue the owner under equitable theories despite not having a contract and obtain a money judgment against the owners as well as pursue lien rights.  See 85.021, Florida Statutes. Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

A claim of lien can be amended anytime during the 90 days after final furnishing of labor, services or materials.  However, after the 90 days, the lienor can no longer amend the claim of lien.  See Section 713.08, Florida Statutes. Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

To determine if a faxed lien release is valid, one Court examined the parties' intent to determine if the subcontractor's normal business practice was to withhold the original lien release until payment was received.  Klein Development v. Ellis K. Phelps & Co ., 761 So.2d 441 (Fla. 2d DCA 2000). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com