Those wishing to secure, perfect, and enforce their lien rights need to be extremely cautious when it comes to adhering to all the rules, requirements, and deadlines to ensure they have properly exercised their lien rights. This is particularly true when it comes to notices. Not only how to send them, but where to send them. A Florida Court of Appeals dismissed a contractor’s lien claim for failing to send the notice to the proper address. And also serves to clarify when and how service of a lien claim is considered complete.
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The rules for serving lien claims in Florida
Service requirements under Florida mechanics lien laws are particularly unique compared to other states. There are multiple ways of service, and service is deemed complete depending on which type of service you use. Regarding the service of the lien when filed, Fla. Stat. §713.08(4)(c) states that:
The claim of lien shall be served on the owner. Failure to serve any claim of lien in the manner provided in s. 713.18 before recording or within 15 days after recording shall render the claim of lien voidable to the extent that failure or delay is shown to have been prejudicial to any person entitled to rely on the service.
So what exactly is the manner service provided under §718.18? And when is service considered complete? The sort answer can be found in Mailing Construction Notices: Is notice served when mailed or received? However the specifics, and where exactly to send notices is broken down further in the case below.
Contractor’s lien foreclosure dismissed for serving notice of claim to wrong address
The case in question is: Fettig’s Construction, Inc. v. Paradise Properties & Interiors LLC
- Owner: Paradise Properties & Interiors, LLC (Paradise)
- General Contractor: Fettig’s Construction, Inc. (Fettig)
As required by Florida law, Fettig recorded a Notice of Commencement (NOC), which listed the both the property address and the property owner’s address as 628 Banyan St, Vero Beach, FL.
Eventually a payment dispute arose, and Fettig recorded a mechanics lien against the property. The notice of lien claim was then sent by both certified mail and regular mail to two different addresses.
Notice of lien claim sent to alternate addresses
One was a Vero Beach address different from the one listed on the Notice of Commencement. However, it was the mailing address for Paradise registered with the Indian River County Property Appraiser’s Office.
Fettig sent their second notice to an address in Orlando which was Paradise’s mailing address according to the Florida Secretary of State. Both of the certified mailings were returned as “unclaimed,” “vacant,” and “undeliverable.” The notices sent by regular mail were never returned.
Fettig subsequently filed a foreclosure action.
Paradise replied to the lien foreclosure with a motion for summary judgment to dismiss the claim. The motion argued that the lien and the contractor affidavit weren’t served properly in accordance with §713.08. They argued specifically that neither the claim nor the affidavit were delivered to the proper address. Fettig also failed to post a copy of the notice on the jobsite.
The trial court agreed with Paradise and discharged the claim. Fettig appealed.
Appeals court reviews the specifics of service requirements
The appeals court decided to hear the case, and broke down the specifics of services requirements under FL mechanics lien laws. The court broke down the methods of service and when service is deemed complete.
Methods of service of Florida lien claims
Fla. Stat. §713.18(1) provides for the method of service of a claim of lien:
Service of notices, claims of lien, affidavits… must be made by one of the following methods:
(a) By actual delivery to the person to be served…
(b) By common carrier delivery service by registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by the sender and with evidence of delivery, which may be in electronic format.
(c) By posting on the site of the improvement if service as provided by paragraph (a) or paragraph (b) cannot be accomplished
When service of Florida lien claims is deemed to be complete
As far as when service is deemed to be complete, these rules can be found under §713.18(3)(a):
Service of an instrument pursuant to this section is effective on the date of mailing the instrument if it:
1. Is sent to the last address shown in the notice of commencement or any amendment thereto or, in the absence of a notice of commencement, to the last address shown in the building permit application, or to the last known address of the person to be served; and
2. Is returned as being “refused,” “moved, not forwardable,” or “unclaimed,” or is otherwise not delivered or deliverable through no fault of the person serving the item.
Service was improper, but remanded to trial to determine “last known address”
The appeals court agreed with the trial court’s reasoning, but the analysis fell short. Given the strict interpretation of the statutory language, delivery to the “last known address” is still permitted as a valid means of service, regardless of the address listed on the notice of commencement.
The court ruled that the decision to discharge the lien claim was improper, but remanded the case to trial.
Best practice: Send notices to the address listed on the Notice of Commencement
First and foremost, this case highlights the all-too-common issue of sending notices last minute. There’s no reason for delay. If you’ve filed your lien claim, send a copy the same day. Although the final outcome of this case may be that the “last known address” is sufficient, there’s no reason to tempt the fates.
As the Florida law clearly states, the best way to send a copy of the lien claim is to the address listed on the notice of commencement. That way your service requirements are met once they are deposited in the mail. There’s no need to do any extra research to find alternate addresses. This is an example of doing too much.
Investigating alternative addresses to get your notice served may seem like a smart play. But depending on the language of the statute, this can end up hurting you more than helping.