Filing a mechanics lien against a condominium complex for work performed on the “common elements” can be a tricky affair. Typically, this work is authorized by the association or developer, but not specifically by each and every condo unit owner. Those familiar with condominiums know that the common elements are jointly owned by each unit owner.
So, if each unit owner claims percentage ownership of the common elements, is the work on common elements “authorized” without unanimous consent from all of the owners? This question is answered differently state-by-state. In states like New York, written consent from every unit owner is required before a mechanics lien is authorized against the complex. Other states, like Florida, assume consent when the work is authorized by the association.
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Florida’s statute provides:
Labor performed on or materials furnished to the common elements are not the basis for a lien on the common elements, but if authorized by the association, the labor or materials are deemed to be performed or furnished with the express consent of each unit owner and may be the basis for the filing of a lien against all condominium parcels in the proportions for which the owners are liable for common expenses.
The Florida Third Circuit Court of Appeals decided an interesting case last week with this law and issue in controversy. In S. Fla. Coastal Elec., Inc. v. Treasures on the Bay, the court was confronted with a condominium association who denied that it hired S. Florida Coastal Electric to perform electrical work on the common elements, contending instead that the “developer” commissioned the work.
A decision was not made either way, but a trial decision dismissing the mechanics lien as invalid was reversed, because determining whether the association authorized the work was “an issue of fact” that should be decided at trial. Just because the construction contract was with the developer, and not the association, was not conclusive. The developer could have been an “agent” of the association.
This case is interesting because it gives an example of how gray the law can become when dealing with mechanic liens on condominium common elements in Florida.