I filed a lien against a property that I did not send notice to owner that I did not know I had to do at the time I filed lien. Can they have me arrested for criminal fraud ?
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May 11, 2020
There's a difference between fraud and an honest mistake. Minor procedural errors could absolutely result in a mechanics lien being considered invalid and unenforceable - and, in some cases, even damages. But, making an honest mistake and failing to send a notice or sending the notice late generally won't result in criminal charges.
Looking specifically to § 713.31(2) Florida's mechanics lien statute - a mechanics lien will typically only be considered fraudulent when (1) the amount is exaggerated; (2) when the claimant didn't actually provide work; or (3) when the claimant has compiled the claim with willfully and gross negligence. So, if the claim was put together very poorly or exaggerated, that might result in a fraudulent lien (and potentially criminal liability). But minor errors generally shouldn't rise to that level.
What's more - even in the unlikely scenario where an honest mistake would lead to criminal penalties in Florida - that wouldn't be immediate. Rather, the lien would likely have to be considered exaggerated by the court for criminal penalties to come into play. And, once the lien was determined to be fraudulent, then claims might be made. So, there will generally be an opportunity to release a lien claim if it's being alleged as fraudulent.
What to do when an owner challenges your mechanics lien claim
Mechanics lien claims are supposed to make owners angry. And, the first response to a mechanics lien claim will often be to challenge that filing, regardless of whether there's actually an issue with the lien claim. So, any time an owner makes threats after a lien has been filed, it'd be wise to take those with a grain of salt.
At the same time, Notices to Owner are strictly required in Florida, and the deadline is unforgiving. So, if an NTO wasn't properly and timely sent, the lien may be invalid and unenforceable (and, in some cases, fraudulent). If that's the case, releasing the filed lien and pursuing some other avenue for recovery might make more sense than pursuing a lien that's unenforceable. That's especially true where the owner seems to be ready to pursue all available legal options.
So, at the end of the day, it's up to you to decide how, exactly, to respond to an owner's threats. Though, consulting with a local Florida construction attorney could be helpful. As a last and final note, this article should be valuable: My Lien Was Challenged: What Do I Do?
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May 11, 2020
Matthew would me not knowing the legal avenue to file a lien warrant criminal actions if I did not remove the lien?
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May 11, 2020
There are a number of different avenues for filing a mechanics lien. A claimant can file the lien themselves, designate someone in their office to file the lien, use a service to help with the lien filing (such as Levelset), or even hire an attorney to file the lien. And, a mechanics lien could absolutely be valid and enforceable using any one of those avenues.
So, unfortunately, I'm not sure I understand the follow-up question. Plus, as described in more detail above, some procedural flaw with a lien filing - like sending a late NTO - generally shouldn't result in criminal penalties.
But, if you're particularly concerned about the potential for criminal penalties, then releasing the mechanics lien claim and pursuing some other payment remedy - like filing a traditional lawsuit, going to small claims court, sending the debt to collections, etc. - could still lead to payment.