Hard Hat Lawyer - Tritt|Henderson Quarterly Newsletter

By: Christopher M. Cobb, Esquire

Operating under Florida's Construction Lien law can leave some companies feeling as if they are negotiating the proverbial "minefield" of the Florida Statutes. One reoccurring question (whether in residential or commercial construction) I routinely address is, "How many claims of lien must I record". Like any good lawyer, I will answer as follows: "That depends". Before I hear sighs of anxiety from the potential lienor/client (and you as the reader) I will explain a likely scenario:

A subcontractor has performed one or more improvements on multiple lots in various subdivisions. If the contract is with the owner and all of the property is located in the same county, the answer is directly tied to the contract. You mean you actually have to read that? YES! You must lien on your contract. Not only does the contract govern the respective rights associated with the labor, services and/or materials, but it also dictates how many liens your company needs to execute and record.

Under Florida's Construction Lien law, a lienor may file one claim of lien for the improvements on the various lots, parcels or tracts of land. The labor, services, and materials for this type of lien must arise under the same direct contract and the owner of the lots, parcels and tracts of land must be the same person or entity. For example, if a concrete company poured the slabs for 100 lots in ABC Subdivision under one direct contract where all of the lots were owned by the same owner, Section 713.09, Florida Statutes, allows the concrete company to record only one claim of lien for all of the labor, services and materials in the event of nonpayment by the owner.

To carry the scenario further, if the same concrete company executed another direct contract to pour driveways, then the concrete company would have to file a separate claim of lien for the work on the driveways. Even though the improvements actually touch on the job-site, there are separate direct contracts for the slabs and driveways, and therefore, two liens would be required. The same concrete company may supply materials to be used on one or more improvements in ABC Subdivision. In some cases, the owner of ABC Subdivision will require the materials to be delivered to a place, other than the site of the improvement. Section 713.09 states that delivery of the materials to the place designated is prima facie evidence of delivery to the site of the improvement and incorporation in the improvement. This relieves the concrete company from actually demonstrating that the materials for ABC Subdivision were delivered to each individual lot. (Of course, delivery tickets to each lot is preferred as the incorporation burden would be rebuttable by the owner).

If your company steps on one of the mines and loses its lien rights, then it has a number of available claims it can bring to collect on the labor, services and/or materials provided to a construction project (i.e. breach of contract, quantum meruit, open account, etc). These alternate claims, however, involve litigation that does not carry the same punch as a construction lien foreclosure action. With national and regional homebuilders feeling the economic pinch of late, these alternate claims to recover amounts owed for labor, service, and materials can be as fleeting as a winter-time fog bank on the St. John's River.

Therefore, and despite the minefield, your company must perfect its lien rights. Perfecting lien rights is relatively easy to do with your accounts payable department and attendance at the periodic lien law seminars offered by the law firm of Tritt|Henderson. If you have questions regarding the single claim of lien, please contact your construction attorney to help you avoid those minefields.
SINGLE CLAIM OF LIEN

713.09 - A lienor is required to record only one claim of lien covering his or her entire demand against the real property when the amount demanded is for labor or services or material furnished for more than one improvement under the same direct contract. The single claim of lien is sufficient even though the improvement is for one or more improvements located on separate lots, parcels, or tracts of land. If materials to be used on one or more improvements on separate lots, parcels, or tracts of land under one direct contract are delivered by a lienor to a place designated by the person with whom the materialman contracted, other than the site of the improvement, the delivery to the place designated is prima facie evidence of delivery to the site of the improvement and incorporation in the improvement. The single claim of lien may be limited to a part of multiple lots, parcels, or tracts of land and their improvements or may cover all of the lots, parcels, or tracts of land and improvements. In each claim of lien under this section, the owner under the direct contract must be the same person for all lots, parcels, or tracts of land against which a single claim of lien is recorded.