Property Ownership and Your Lien Rights

-

     The ownership interest of the party you contract with may dictate the reach of your lien rights. For example, if the owner of a property is the sole owner of the entire parcel, then a lien will extend to the entire interest of the owner. Conversely, if the party who contracts for an improvement to real property has no ownership interest at all in the subject property, a construction lien cannot reach the property. Take for example the facts of Paterson, Inc., v. Bonda. In that case, Paterson, a contractor has a contract with Mr. and Mrs. Bonda to improve the Bonda's condominium apartment. Before the work was completed the Bondas terminated Paterson. Paterson filed a mechanics lien against the Bondas and a lawsuit was filed.

     Mr. Bonda filed for summary judgment based on his not having an ownership interest in the property. The trial court entered summary judgment for Mr. Bonda and awarded him attorney's fees for defending the lien foreclosure claim. Donald M. Paterson, Inc. v. Bonda, 425 So. 2d 206, 207, 1983 Fla. App. LEXIS 18769, 1-2 (Fla. Dist. Ct. App. 4th Dist. 1983)

   Property Owned by Husband and Wife

      What about property owned by a husband and wife where only one of the spouses signs the contract? Florida Statute §713.12 provides that a contracting spouse is considered the agent of the non-contracting spouse. As such, both of their interests in the property are subjected to a lien. For this principle of agency to apply, the contracting spouse must not be separated and living apart from the other spouse. However, the non-contracting spouse can limit the extent of the lien to only the interest of the contracting spouse by giving written notice of their objection to the contractor within 10 days of learning of the contract. The objection must also be recorded in the public records where the property is located within the same 10 days.

Leased Property

      If the contracting party is a tenant with a leashold interest, only the leasehold interest is subject to a lien. The owner’s (Landlord) interest is not lienable unless the lease agreement actually requires the tenant to make certain improvements or is otherwise the essence of the lease (called the “pith” of the lease). The Owner (Landlord) can protect his interest, notwithstanding that the improvements are required by the lease or are the “pith” of the lease, by including a prohibition against liens in the lease agreement itself and recording the lease, short form of the lease or statutory notice in the public records in the county where the property is located.

Condominium Property

      What about liens on condominium property? Florida Statutes §718.121 governs liens against condo property. What determines the extent of any lien rights in this context is the date on which the declaration of condominium is recorded. When a lien is recorded before the declaration, the lien extends to the entire property (including common areas). If the lien is recorded after the declaration, then the lien extends to all the condominium parcels in the proportions for which the owners are liable for common expenses but the lien will not extend to the common areas.

 Public Property

      Remember, public property generally cannot be liened. On public projects, security comes in the form of a payment and performance bond.

     Knowing who you’re contracting with and their interest in the improved property can be just as important as making sure you timely serve a preliminary notice or record a construction lien. When in doubt, always consult with an attorney who is familiar with Florida’s Construction Law.

BY: JOSE A. RODRIGUEZ, ESQ.
The Soto Law Group, P.A.
2400 E. Commercial Blvd., Suite 400               
Fort Lauderdale, FL  33308
jose@sotolawgroup.com
www.sotolawgroup.com
TEL:  954-567-1776

FAX:  954-567-1778

The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. Additionally, the information above is not intended to be legal advice. Please consult with an experienced lawyer if you have a specific issue or dispute.





 


to he

 [2] 

Comments

Post a Comment

Popular posts from this blog

A SUBCONTRACTOR’S HOSTILE WORK ENVIRONMENT CAN BE A GENERAL CONTRACTOR’S LIABILITY

-
     In December 2013, the Sixth Circuit Court of Appeals held that a general contractor could be liable under Title VII for a hostile work environment claim brought by a subcontractor’s employee under a “joint employer theory.” EEOC v. Skanska USA Building, Inc. , No. 12-5967 (6 th Cir. Dec 10, 2013). In Skanska , the subcontractor’s employees complained directly to the general contractor about the hostile work environment, alleging that they were the subject of racial slurs and epithets including “the n-word” and were subjected to graphic depictions such as a picture of a Caucasian person shooting an African-American posted in the port-a-potty. The alleged offenders were employees of the general contractor, other subcontractors, and third parties. Despite having knowledge of the complaints, the general contractor took no action to remedy the problem, instead directing the subcontractor to fire the complaining employee due to them being a “poor fit.”      Why was the general con
Read more

COVID-19 Small Business Administration Programs

-
Image
COVID-19 Small Business Administration Programs To support small businesses during the Coronavirus (COVID-19), the government has adopted various economic relief programs. This article will cover four major programs operated by the Small Business Administration (SBA).   The Paycheck Protection Program (PPP)   The Paycheck Protection Program is designed for people who run small businesses. This is an ambitious program both in volume and conditions. Under this program, approximately $349 billion has been allocated. The small business owners who are suffering due to the Corona pandemic will be able to recoup a portion of payroll through this program.  Apart from small business establishments, many non-profit organizations will be eligible for this loan. Even tribal businesses are included in the list. This will also be an opportunity for independent contractors and self-employed youths, provided they fulfill all the conditions to get a loan.  This program offers th
Read more

What is Next If your Employee Tests Positive for COVID-19?

-
Image
  What is Next If your Employee Tests Positive for COVID-19? OSHA ( Occupational Safety and Health Administration ) and the CDC ( Center for Diseases Control ) have published and revised guidelines on how to proceed if an employee shows symptoms or tests positive for COVID-19. I.                    Immediate Response   If an employee shows symptoms or has tested positive with COVID-19, employer should require employee to self-isolate and monitor symptoms as well as consult with his/her doctor immediately. In most situations you do not need to shut down the workplace. However, do close off any areas that could be contaminated or were used for an extended period of time by infected persons. The CDC recommends waiting 24 hours before cleaning and disinfecting to minimize others from being exposed to respiratory droplets. Any member or staff who has a COVID-19 patient in his home must inform his supervisor so that the Employer can take proper safety measures. II.             
Read more