No matter where you are, it is imperative to be aware of deadlines regarding your lien and bond claims. In Florida, it has become apparent that courts will not show leniency toward lienors when it comes to procedural matters. In Jack Stilson & Co. v. Caloosa Bayview Corp. the Supreme Court of Florida made its stance particularly clear by stating, “[t]he purpose of the fixed periods provided in such statutory remedies as the one here involved of the Mechanics’ Lien Law was to make definite and certain the time within which the matter can be considered as ended.” The court went on to add, “This assurance should not be destroyed by an “open-ended” right of amendment by a lienor beyond the period provided by statute.” Clearly the Sunshine State means business when it comes to deadlines.
Florida Lien Deadlines
Florida lien deadlines are strict. In Florida, a party must record a lien within 90 days of the last day the party provides labor, materials, or services to a project. On the surface this sounds simple enough, but questions have been raised as to when exactly a final furnishing has been made. Luckily, Florida courts have formed a test to determine the last date of furnishing.
The 90 day clock for potential lienors begins on the last day that (1) work was performed in good faith, (2) within a reasonable time, (3) in pursuance of the terms of the contract, and (4) when it was necessary to complete the job.
Final furnishings cannot be made when there is work to be performed on the contract, so even insignificant work may hold off the 90 day countdown if it was provided for or contemplated in the contract. However, work that is incidental to the contract does not extend the time period for filing a claim, and neither does warranty work, repair work, or corrective work.
Claimants Are Not Free Of Deadlines Once The Lien Is Filed
Typically, a party has one year to commence action on a lien after it has been filed. The timeframe to commence action on a lien can be shortened to 60 days when a party files a notice of contest of lien. At any time after a lien has been filed, including after an action has been commenced on the lien, a property owner may transfer the lien to a surety bond in order to clear the title. As you will see below, it is crucial that a lienor timely files a lien and commences action on the surety in the event of a transfer.
Recently the Second District Court of Appeals decided a case that reinforced the strict imposition of deadlines in Florida lien law. In Hiller v. Phoenix Associates of South Florida, the Court found that despite Phoenix’s prior timely filing and commencing action on a lien against Hiller’s property, failure to amend its petition to include the surety after a transfer bond was posted extinguished Phoenix’s claim.
Phoenix alleged that Hiller breached a contract for work provided on Hiller’s home. Phoenix exercised its statutory lien rights and posted a lien on Hiller’s property. Phoenix timely commenced action on the lien.
After Phoenix commenced the action, Hiller posted a transfer on the bond, thus clearing the title of the property and transferring the lien to a surety bond. Hiller next filed a notice of contest which shortened the time period for Phoenix to commence an action on the bond from one year to 60 days. And that’s where the fun began.
Perhaps due to careless lawyering, or perhaps because Phoenix assumed the claim would relate back, Phoenix failed to commence action on the lien on the surety within 60 days.
When Phoenix eventually did file a motion for leave in order to name the surety to the suit, Hiller countered with a motion to release the transfer bond due to Phoenix’s failure to timely file. The trial court allowed Phoenix to supplement its complaint and Hiller appealed the decision.
The Circuit Court had less sympathy for Phoenix, finding that the district court erred in dismissing Hiller’s motion. Because Phoenix failed to make a claim on the surety bond after Hiller transferred the lien, Phoenix lost the ability to bring a claim on the bond. The Court cited state law and language from the Florida Supreme Court, both of which pointed toward the strict interpretation of lien law deadlines. Phoenix is not left without remedy- it can still pursue contract claims against hiller going forward. But because Phoenix was unaware of the grave consequences of failure to file another claim against the surety after transfer, it lost the ability to file a claim against the bond.
While jumping through procedural hoops is always high priority in lien law, it appears that Florida takes deadlines more seriously than most. Even if you think you are in the clear, it is important to stay vigilant in preserving your claim. Lien-iency in the courts is hard to come by, so always be aware of the procedural steps you must take to protect your lien rights.
Previously, we have provided a fact sheet for securing your lien rights in Florida as well as an in depth look at Notice to Owner requirements and many other considerations in Florida lien law. Additional information regarding Florida Lien Laws and Notice Requirements can be found in Levelset’s resources, here: Florida Lien and Notice FAQs.