How to remove a frivolous mechanic’s lien
Paul Davis sent me a letter informing me that they put a lien against my rental property in Orlando Florida. It was my insurance company who contracted them for water damage mitigation as a curtesy service. I have never received an invoice or request for payment and I am pretty sure the insurance company payed them directly. What are my options?
First it should be noted that a party providing labor and/or materials to a project may be entitled to lien – regardless of whether the owner of the property has directly contracted with that laborer or material provider. When a mechanics lien is filed arising from insurance work, the first order of business may be to contact the insurance provider who contracted for the work. Letting them know that a dispute is present and that a mechanics lien is imminent could make a world of difference – and they might step in and resolve the situation. While a mechanics lien would merely attach to the improved property, a lien claimant (if unpaid) would also have legal claims available against an insurer. Plus, the insurer might also be bound to defend against lien claims. Regardless of whether the insurer steps in, it would be wise to hire a construction attorney since the property title is at stake. Though potentially expensive, having an attorney will help illuminate all available options, and they will be able to help decide on a route to move forward. Plus, the cost of losing a lien foreclosure action would be even higher.
Anyway, if no prior invoice or notice was given, there’s likely an opportunity to challenge the mechanics lien. In Florida, a claimant who has not directly contracted with the property owner must send a Notice to Owner at the start of a project. A Notice to Owner is sent to inform the property owner that the party providing work might eventually be entitled to utilize mechanics lien rights if the contractor or supplier goes unpaid. If required and not sent, the failure of a claimant to provide a Notice to Owner could be fatal to their claim – leaving it invalid and unenforceable upon challenge. Further, there are a number of other grounds on which a mechanics lien can be challenged on. Plus, formally challenging a lien in Florida (via filing a Notice of Contest of Lien) reduces the amount of time a claimant has to enforce their claim – so it becomes a sort of “put up, or shut up” situation for the claimant. Unless the claimant moves forward to enforce their lien within 60 days, the claim will be automatically extinguished.
If the claimant truly believes they have a strong claim and are willing to proceed, though, sending a Notice of Contest of Lien might just accelerate the dispute. Thus, it may be worthwhile to try and demand that the lien be removed before taking such a formal first-step. Informing a claimant of the seriousness of filing fraudulent Florida liens could potentially convince them to release the lien. In Florida, if a lien is fraudulent, criminal penalties will come into play – so if a claimant has been exaggerating their position, seeing the potential consequences might make them think twice. Another option, while it would result in some up-front costs, would be to bond off the mechanics lien. When a lien is transferred to a bond, the property title is taken out of the equation. So, while legal claims will still exist, the claimant succeeding in such a claim wouldn’t put an owner at risk of losing their property – instead, the bond would pay off the claim. Of course, demanding that the insurer post a bond to transfer the lien claim off of the property title might also be an option.
Again, with the stakes this high, it would be wise to bring in a Florida construction attorney so they can look at all of the surrounding circumstances and create a plan for moving forward.