Change of name, not ownership on Lien

7 days ago

When we filed a lien back in May of 2018, it was filed to the incorrect owner (a family trust) but correct address. The property had been sold in January of 2018 to a member of the family trust. Can we file another lien against the property as the new owner, is the person who signed our contract and owes $5k. The original lien was filed against the original owner who had the property in a family trust name. It should also be noted that the property is in Osceola County Florida, but the owner resides in Scotland, U.K.

Senior Legal Associate Levelset

Having the correct property owner is a crucial feature of a mechanics lien claim, and a mechanics lien with the incorrect owner may well be deemed invalid and unenforceable. However, at the same time, Fla. Stat. § 713.08(4)(a) states that errors or omissions in a mechanics lien claim might not render the lien unenforceable.

Ultimately, only the trial court will be able to decide whether the mechanics lien claim will or will not be enforceable. And, one of the key considerations they’ll hone in on is whether the owner is adversely affected by the error.

It’s impossible to know how a court might turn. But, if the property was ultimately transferred to one of the members of the trust which previously owned the property, and if the true owner became aware of the lien claim when it was filed, then there may be a stronger chance that the lien is deemed enforceable.

Updating, amending, or replacing a Florida mechanics lien filing

Florida mechanics liens can be amended to fix errors in some situations, as set out by § 713.08(4)(b) of the state’s lien statute. However, a mechanics lien amendment must be made within the same timeframe that the original lien could be filed.

Additionally, a claimant may also be able to refile a lien with the correct information. But, much like a lien amendment, this would require the corrected lien to be filed before the original filing deadline.

In Florida, the deadline to file a mechanics lien is pretty short – only 90 days after the claimant’s last furnishing of labor or materials. So, if more than 90 days pass after the last furnishing date, a  claim likely cannot be validly amended or refiled.

Florida’s mechanics lien enforcement deadline

Finally, it’s important to keep Florida’s mechanics lien enforcement deadline in mind when deciding how to proceed with a claim. In Florida, a lien claimant must enforce their lien claim within 1 year of the date the lien was recorded – otherwise, the lien will expire and be rendered unenforceable.

Other recovery options outside of the mechanics lien process

Finally, keep in mind that mechanics liens are only one recovery tool, and while a lien claim may be more efficient than other options, there are still other ways to obtain payment.

For one, a payment demand letter that threatens legal action can be enough to get paid. By threatening specific legal action against their customer, the claimant may be able to at least get payment talks moving in the right direction.

Further, if a customer has failed to make payment, then there’s a fair chance they’re in breach of their contract considering payment is a crucial function of the agreement. Or, if there was no contract, an action like unjust enrichment might be on the table.

Further yet, Florida’s prompt payment laws may also come into play. When a contractor or sub goes unpaid by their customer, Florida’s prompt payment laws create yet another avenue for recovering payment – and, a claimant may even be entitled to interest penalties, attorney fees, and other costs if successful.

A Florida attorney would be able to help you to pursue payment

Consulting with a Florida construction attorney, such as one of these Florida Construction Payment Experts, should provide additional clarity regarding which payment recovery options make the most sense in your situation. They’ll be able to review all relevant documentation and other information then advise on how best to move forward.

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