I have a client who once thought he would save money in attorneys’ fees by filing his own Claim of Liens. In July of 2005, he filed a Claim of Lien against an owner (or the person he thought was the owner) seeking more than $100,000 in unpaid labor and materials provided for completion of an apartment complex. He thought he had met the owner on several occasions and even visited the person he thought was the owner at his home. He had been introduced to this person by the contractor who stated during the introduction “Meet the big dog. He owns this place.” When my client sent the Claim of Lien to the owner he sent it to the address he had visited.
The Claim of Lien was sent via certified mail (as required by the Florida Mechanic’s Lien Statute) and my client received proof that the Claim of Lien had been received. The problem was the person he had met was not the owner but a consultant hired by the engineer to oversee the project. Had my client sent the Claim of Lien to the address on the Notice of Commencement he would have cleared this hurdle. Instead, the Claim of Lien was invalid and when my client tried to sue the contractor, the contractor filed for bankruptcy. This situation is not uncommon.
Florida Mechanic’s Lien Statute was designed to protect owners, not subcontractors. Any subcontractor who has ever tried to enforce a Claim of Lien by himself (including my client) knows exactly what I am talking about. There are affidavits that must be signed, deadlines for notifying owners that you are performing work on the property, deadlines for filing claim of liens, deadlines for notifying owners, lenders and contractors that a lien has been filed and a multitude of other requirements.
Statute Strictly Construed
On top of that, Florida courts are clear that the Statute is to be strictly construed against the lienor. That means, if you as a lienor do not comply with all of the requirements of the Statute you cannot enforce your Claim of Lien and you will be left to sue the contractor. We all know that recovering from the contractor is not likely because if the contractor had had the money to pay the subcontractors the contractor would have done so and there would have been no need for a Claim of Lien in the first place.
For a more detailed explanation of the Florida Mechanic's Lien Statute see my post here.