If you’ve been experiencing payment problems on a Florida construction project, you’ve hopefully secured your mechanics lien rights. More often than not, recording a mechanics lien claim is enough for the construction business to get paid. However, if the lien claim doesn’t resolve the payment dispute, it may be time to consider filing an enforcement action (also known as foreclosure). Florida lien claimants typically have a year before they need to enforce it – but the property owner can file a Notice of Contest of Lien or an Action to Show Cause to cut your deadline seriously short.
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Florida’s deadline to enforce a mechanics lien
In the majority of cases, filing a Florida mechanics lien is more than enough to prompt the owner to pay you. But in some cases, resolving a payment dispute takes time. Florida law doesn’t let it drag out forever – state law requires the lien claimant to take action within a specific deadline.
In Florida, the deadline to enforce a mechanics lien is one year from when the lien claim was recorded. If no action is taken within that 1-year period, then the claim will expire and no longer be enforceable. (Hopefully it never gets that far.) But sometimes it may reach the point where the contractor has to decide: Do you foreclose on your mechanics lien, or let it expire?
However, lien claimants don’t always have a full year to make an enforcement decision. In the State of Florida, the property owner can take action to reduce your lien enforcement window – from 1 year to a mere 60 or even 20 days.
Cutting the deadline short: Two times Florida contractors must enforce quickly
Under Florida mechanics lien laws, there are two different ways that a property owner to shorten a lien claimant’s enforcement deadline. If they file a Notice of Contest of Lien or an Action to Show Cause, the lien claimant has a much shorter deadline to take action.
Florida Notice of Contest of Lien
A Notice of Contest of Lien is the more widely used of these two options – mostly because it’s the cheaper way for the owner to essentially “call your bluff.” If a lien has been filed, and the owner thinks it’s invalid, they can record a Notice of Contest of Lien form and force you to file a foreclosure lawsuit within 60 days.
“An owner or an owner’s attorney may elect to shorten the time prescribed in subsection (1) within which to commence an action to enforce any claim of lien or claim against a bond… by recording in the clerk’s office a notice in substantially the following form…”
Once the owner records this notice with the appropriate Florida county clerk, the clerk is required to serve the lien claimant a copy of the Notice of Contest of Lien. This will be sent to the “address of lienor” noted on the filed mechanics lien form or the most recent amendment filed. So make sure you put the right address! If you don’t initiate an enforcement action within 60 days after receiving a copy of such notice, the claim will be extinguished automatically.
Florida Action to Show Cause
The second option for property owners to reduce your enforcement deadline is to file an Action to Show Cause. Filing this action is a lawsuit, making it the more drastic (and more expensive) route. If filed, the deadline to initiate a foreclosure action is cut to just 20 days! The Florida action to show cause provisions are provided under Fla. Stat. §713.21(4):
“Upon filing a complaint therefor by any interested party the clerk shall issue a summons to the lienor to show cause within 20 days why his or her lien should not be enforced by action or vacated and canceled of record. Upon failure of the leinor to show cause, why his or her lien should not be enforced or the lienor’s failure to commence such action before the return date of the summons the court shall forthwith order cancellation of the lien.”
This type of action can be filed by anyone with an interest in the property. If you receive a summons for an action to show cause, you’ll need either file an enforcement action, or show good cause why the lien had not yet been enforced within 20 days. This second one can be trickier than you think, for more on this see: Florida Court Cancels a Lien After Sub Failure to Show Cause.
If not, the lien will be automatically discharged. Keep in mind, that a foreclosure action isn’t a quick process. A lawyer will need to draft, file, and serve the lawsuit within the 20-day time frame. You don’t have much time to gather all the evidence you’ll need to prove your claim. (This is where a solid document retention strategy is incredibly helpful.)
20 days is a pretty tight window, so you’ll need to act quickly.
Contractors stay calm
At the end of the day, if a property owner takes either of these actions against your mechanics lien claim, don’t panic. Remember, just because the owner is putting the pressure on doesn’t mean you’re in the wrong. Many property owners (and their attorneys) will try any tactic available to them to get your lien off of their property title. Stand firm, and take swift action. After all, it’s money that you’ve earned. If you’re facing a lawsuit, consult with a Florida construction lawyer.