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What are my options here?

FloridaMechanics LienNotice of Intent to LienRecovery OptionsRight to Lien

I spoke with Greg (there) about filing a construction lien on a client that has not paid for partial services I did, before telling me they were going to use some one else. I have written notice to proceed (emails) as well as further email asking about progress, etc. After completing a portion of the agree to services, they told me they were going to use someone else to complete. I told them I would send an invoice for the percentage I did, and then did so. They replied they did not think they owed me for the services now, so I filed a Notice to File a Construction Lien through Levelset. I then received an email from their attorney with somewhat distorted information that must have been provided by my client, but basically said if I do file the lien they will file a lawsuit for slander of the lien. I told them the facts remain the same; they asked me to do something, I did some of that, they changed their minds, I invoiced for that portion, they said not paying. What are my options now? Still file?

2 replies

Oct 31, 2019
I can't speak for Levelset, but I think you should consult with your own attorney about your lien rights. Based on what you're describing, I think you would have a construction lien against the property, so long as the work you did fit the definition of "improvements" found in Florida's construction lien statutes.
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Oct 31, 2019
It's common for an owner's first reaction to a prospective lien claim to be to challenge that lien. After all, a mechanics lien is a serious threat to their property title. But, when your right to lien is challenged it can be hard to decide how to proceed. Let's first look at some considerations with Florida mechanics liens, then some background on Slander of Title, and finally look at potential responses to a challenged Notice of Intent to Lien.

Florida mechanics lien rights

First, as you may know, mechanics lien rights are generally available to those who have performed work which improves the project property and gone unpaid for that work. And, a lien claimant will only be entitled to lien for the value of the work they actually performed - cancellation fees, unearned contract amounts, etc. cannot be included. But, even when there's work that's been unpaid, a claimant will need to send a Notice to Owner in order to preserve their right to lien. That notice must be made within 45 days of first furnishing labor or materials to the project site. For more on Florida's Notice to Owner requirements: Florida NTO Guide & FAQs.

Slander of title in Florida

The basic elements an owner would need to prove slander of title are that (1) the lien claimant communicated to a third person, (2) a statement that disparages the owner's title, (3) that is untrue, and (4) that causes the owner actual damages. Filing a mechanics lien is certainly a communication that disparages the property title - a lien is filed directly against the owner's title. However, for there to be slander of title, the statement must be untrue. So, where a lien claimant is entitled to file a mechanics lien, it will be hard to argue that the statement is untrue. Further, unless an owner has lost a potential sale of the property or loan against the land, it may also be hard to prove any damages are in play. For more background on what's considered slander of title in Florida, here's a great article from Jimerson Birr: What Lienors of Real Property Need to Know About Slander of Title Claims.

How to proceed when a mechanics lien will be contested

It's natural to be cautious when an owner warns they'll immediately challenge a lien filing. Let's look at a few different options for proceeding.

Talking it out

When an owner knows a lien may be filed, and when they know that you understand your rights (and, potentially, that their threats are empty), it might be easier to negotiate payment than it would be to proceed with a lien. Though, if payment talks don't go anywhere, proceeding with a more forceful claim may be appropriate.

Filing a mechanics lien

As mentioned above and with Jason's answer - a mechanics lien may be appropriate. It's extremely common for an owner to do whatever they can to keep a lien from being filed on their property. And, just because they allege a lien claim wouldn't be valid doesn't mean that's the case. More on that idea here: My Lien Was Challenged: What Do I Do?

Proceeding with some other payment claim

In the event that a mechanics lien doesn't seem to be the best recovery option, there are still other tools that could help to get the job done. And, as Jason mentioned in his answer,  a Florida construction attorney could provide some assistance here if you're unsure how to proceed. They'll be able to review all of the relevant documentation, communications, and other circumstances and advise on how best to move forward.
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