A review of the statute as it currently stands, however, seems to render these proposed changes unnecessary. I recently posted an article about potential changes to Florida mechanics lien law currently being considered by the Florida Senate. In Senate Bill 460, Florida State Senator Simpson is advocating for some curious changes to the lien law scheme. As well as mandating that filing a lien after the 90-day period outlined by statute constitutes an act of fraud punishable as a felony, whether or not the missed deadline was willful or if there was a legitimate question of when the 90-day period expired, the bill also contemplates adding required documentation to the lien claim prior to filing.
Potential New Document Requirements for Filing a Florida Mechanics Lien
Senator Simpson’s Bill has added an entirely new paragraph to Sec. 713.08 of Florida’s mechanics lien law requiring certain documents to be provided before a mechanics lien may be recorded. Presumably, this additional documentation would hinder the ability of potential lien claimants from filing invalid or otherwise fraudulent liens. A review of the statute as it currently stands, however, seems to render these proposed changes unnecessary.
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The text to be added to the Florida mechanics lien law under the proposed amendment is as follows:
(6)(a) A claim of lien may not be recorded until the lienor provides the clerk with a copy of one of the following:
1. The notice of commencement.
2. The building permit for the real property at issue.
3. An affidavit or contract signed under penalty of perjury which attests that the labor or materials were furnished for the real property at issue.
(b) The clerk of court shall attach the copy provided pursuant to paragraph (a) to the claim of lien before recording the claim.
While it seems this potential new requirement is to make it harder to file a fraudulent or invalid lien, it is unclear how fruitful this will be in practice. It’s worth noting that Section 713.08 already sets forth the information to be included on the Claim of Lien, and includes the lien claimant providing a statement duly sworn before a notary that sets forth the materials and/or labor furnished, the cost thereof, and the property to which the labor and/or materials was furnished.
It seems like the potential new requirement that “[a]n affidavit or contract signed under penalty of perjury which attests that the labor or materials were furnished for the real property at issue” is unnecessary given that the same information must be given on the face of the lien claim and notarized. It makes little sense to require a subcontractor to provide a copy of a document that the property owner or general contractor should have filed or procured.
Further, the other two options provided by the proposed amendment: 1) providing a copy of the notice of commencement, or 2) providing a copy of the building permit for the real property at issue, place a burden on subcontractors and suppliers that should probably be borne by other parties. It makes little sense to require a subcontractor to provide a copy of a document that the property owner or general contractor should have filed or procured. Limiting the ability of a sub, supplier to claim a valid mechanics lien because of an oversight by the parties above him/her on the contract chain is not consistent with the goals of mechanics lien in general.
Further, there are already penalties and disincentives built into Florida mechanics lien law for filing an invalid or fraudulent mechanics lien, as is.
The Construction Payment Blog will keep an eye out if these amendments are adopted into Florida mechanics lien law.