I withheld final payment from a contractor who was building a small bathroom inside my home. I did this because I found out the contractor did not pull the proper permits. Instead of this action motivating him to get the permits, it backfired and he filed a Claim of Lien against my home. He lied on the Claim stating the project completed 1 month after the actual completion date so he would be within the 90 day timeline of filing a claim. I dont know how he can get away with this when the invoice clearly shows the last day charged for labor was a month prior. I also have text messages showing all communication after the actual completion date was pertaining to repair work. Is there any action I can take to have the Claim of Lien removed since he filed a fraudulent lien? The contractor filed a Claim of Lien and stated a completion date that was one month after the actual completion date. I filed a Notice of Contest and now he is taking me to Small Claims court
1. Be prepared to prove the last date of work is what you say it is. Since the bathroom is inside your house, wouldn’t you know when they were coming in and out to do work?
2. Under the fraudulent lien statute, which it sounds like you’ve looked up – Sec. 713.31, Fla. Stat. – one who willfully or recklessly exaggerates the amount of the lien or claims work not done is at risk of paying your attorneys’ fees and damages. it’s not clear whether misstating the last date is fraudulent, although it arguably claims work being done that wasn’t:
“(2)(a) Any lien asserted under this part in which the lienor has willfully exaggerated the amount for which such lien is claimed or in which the lienor has willfully included a claim for work not performed upon or materials not furnished for the property upon which he or she seeks to impress such lien or in which the lienor has compiled his or her claim with such willful and gross negligence as to amount to a willful exaggeration shall be deemed a fraudulent lien.
(b) It is a complete defense to any action to enforce a lien under this part, or against any lien in any action in which the validity of the lien is an issue, that the lien is a fraudulent lien; and the court so finding is empowered to and shall declare the lien unenforceable, and the lienor thereupon forfeits his or her right to any lien on the property upon which he or she sought to impress such fraudulent lien. However, a minor mistake or error in a claim of lien, or a good faith dispute as to the amount due does not constitute a willful exaggeration that operates to defeat an otherwise valid lien.
(c) An owner against whose interest in real property a fraudulent lien is filed, or any contractor, subcontractor, or sub-subcontractor who suffers damages as a result of the filing of the fraudulent lien, shall have a right of action for damages occasioned thereby. The action may be instituted independently of any other action, or in connection with a summons to show cause under s. 713.21, or as a counterclaim or cross-claim to any action to enforce or to determine the validity of the lien. The prevailing party in an action under this paragraph may recover reasonable attorney’s fees and costs. If the lienor who files a fraudulent lien is not the prevailing party, the lienor shall be liable to the owner or the defrauded party who prevails in an action under this subsection in damages, which shall include court costs, clerk’s fees, a reasonable attorney’s fee and costs for services in securing the discharge of the lien, the amount of any premium for a bond given to obtain the discharge of the lien, interest on any money deposited for the purpose of discharging the lien, and punitive damages in an amount not exceeding the difference between the amount claimed by the lienor to be due or to become due and the amount actually due or to become due.
(3) Any person who willfully files a fraudulent lien, as defined in this section, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A state attorney or the statewide prosecutor, upon the filing of an indictment or information against a contractor, subcontractor, or sub-subcontractor which charges such person with a violation of this subsection, shall forward a copy of the indictment or information to the Department of Business and Professional Regulation. The Department of Business and Professional Regulation shall promptly open an investigation into the matter, and if probable cause is found, shall furnish a copy of any investigative report to the state attorney or statewide prosecutor who furnished a copy of the indictment or information and to the owner of the property which is the subject of the investigation.
3. “
Sounds like you know what to do. You just need some affirmation. Go do it and good luck!