The 1996 amendments to the Florida construction lien law.

• Author: Walters, Joel W.

The purpose of this article is to summarize the recent amendments to the Florida Construction Lien Law, F.S. Ch. 713.(1) The amendments became effective October 1, 1996.(2) These changes will have the following effects: 1) they expand the scope of monetary obligations which may be secured by a construction lien; 2) they impose additional obligations upon the governmental authorities which issue building permits to verify that notices of commencement have been recorded; 3) they authorize service of notices by facsimile; and 4) they impose restrictions upon the types of releases of lien and waivers of lien which can be required from lienors as a condition to receiving payment for work performed.(3)

Expanded Scope of Construction Lien

The 1996 amendments to the construction lien law authorize the use of a construction lien to secure amounts due and owing for the improvement of public property for situations which, under prior law, no lien was allowed. Generally, a construction lien may only be imposed upon private property, or that which is not owned by the state or any county, municipality, school board, governmental agency, commission, or political subdivision.(4) Situations have arisen, however, where, in conjunction with a private construction project, the owner is required, as a condition of his building permit, to make improvements to public property. Under such circumstances, the 1996 amendments to the law now authorize a lienor to impress a lien upon the owner's private real property for all work furnished in conjunction with the project regardless of whether the improvements relate to the public or private portion of the work. Specifically, [subsections] 713.05 and 713.06 (which define the permissible scope of lienable services) now provide for a lien on the owner's private real property for any money owed for labor, services, or materials furnished to improve the public property. This is only true, however, if the improvements to the public property were a condition of the building permit and were made in accordance with the lienor's contract and the general contract.

Prior to the adoption of these amendments, the construction lien law had been construed in a manner which limited the usefulness of a construction lien to secure payment for public improvements made under contract with a private developer.(5) Specifically, in Davis Water & Waste Industries, Inc. v. Embry Development Corp., 603 So. 2d 1357 (Fla. 1st DCA 1992), the First District Court of Appeal affirmed a final summary judgment entered in favor of a developer and against a supplier who had brought an action to foreclose a construction lien. The supplier had included within its claim of lien, amounts which were owed for improvements to a public sewer and water system.(6) The court found that under [sections] 713.04,(7) no construction lien could be enforced against the developer's property because the property was not contiguous to the public sewer and water system.(8)

The court reasoned that when improvements to public property are required as a prerequisite to approval of subdivision improvements and the public property does not actually abut the private property to be developed, no lien can attach to the private property on account of amounts due and owing for the improvements to the public property.(9) Pursuant to the 1996 amendments to [subsections] 713.05 and 713.06, any unpaid amounts arising from improvements to public property required as a condition of the owner's building permit can now be secured by a lien on the owner's private property regardless of whether the owner's property actually abuts the public property which has been improved.(10)

The scope of monetary obligations which can be secured by a construction lien has also been expanded, and now includes money owed to the lienor "for unpaid finance charges due under the lienor's contract."(11) In this regard, it should be noted that the statutory form for a claim of lien (set forth in [sections] 713.08(3)) has not yet been changed by the 1996 amendments. Accordingly, a lienor seeking to include unpaid finance charges on the claim of lien should modify the statutory form to include a separate statement as to the portion of the total amount of the claim of lien which relates specifically to unpaid finance charges.

Verification of Compliance With the Law

Section 713.135 has been amended to provide greater assurance that governmental authorities which issue building permits require each building permit applicant to timely record a notice of commencement as to the improvements for which a building permit has been requested. Under [sections] 713.135(1)(d), as amended, any governmental authority which issues a building permit cannot perform any building inspections until the building permit applicant has filed with that same governmental authority a...