Can a lien be disputed if you have a subcontractor that failed to perform, as a GC we terminated their contract and now they are filing a lien for the full amount. How do you combat this for the owner of the property?
1 reply
Sep 4, 2019
Mechanics lien filings can always be challenged and disputed for a number of reasons - like unsatisfactory work, an exaggerated lien amount, or for failure to abide by technical requirements. There are generally a number of ways to "challenge" a lien, with some ways being more "official" than others.
Let's dive into a few different ways a lien can be challenged. And, before getting too far along, here's a Levelset article I think should be helpful: A Mechanics Lien Was Filed on My Property – What Do I Do Now?Disputing the merits of the lien
One way to try and compel a mechanics lien claimant to release their lien claim might be to identify why their claim is deficient and implore them to consider releasing the lien claim on their own volition - before legal processes get involved. When there are obvious flaws in a lien claim, it will often be in the lien claimant's best interest to remove their improper lien claim, themselves, before attorneys and courts really get involved. Plus, the cheapest and easiest way to get a lien claim removed is for the claimant to release the lien themselves.
What's more, note that Florida has very serious consequences for lien claimants who exaggerate the amount of their claim. In fact, willfully exaggerating a Florida lien claim could even result in a 3rd degree felony under § 713.31(3) of the Florida lien statute. And, reminding a lien claimant of that fact and showing them why their claim may be exaggerated could help to convince them to remove their own claim.
Of course, when the communications described above are made via attorney letter, they'll tend to carry a little more "umph".
Officially challenging a lien and shortening the enforcement period
For one, an owner or their agent can file a Notice of Contest of Lien with the county recorder - much like a mechanics lien is filed. When a Notice of Contest of Lien is filed, the time to enforce (file suit on) the filed lien is dramatically shortened - from 1 year to merely 60 days after the filing of a Notice of Contest. And, if suit isn't filed to enforce the lien within that 60 days, then the lien will expire and should be much easier to remove.
Another option might be to file a complaint (suit) with the circuit court of the county where the property is located. Filing that complaint will trigger the clerk to issue a summons requiring the lienor to show cause within 20 days. And, if the lienor fails to show cause, the lien will be canceled by the court. Because this entails an actual legal filing, it'd be wise (and probably even mandatory) to first consult with/hire a local attorney to assist with such a filing.
Finally, note that there may be other legal options on the table for challenging a Florida mechanics lien. Consulting a Florida attorney should provide a lot of guidance as to what options might be available or most effective. They'll be able to review all relevant documentation, information, and communications and advise on how best to move forward.