Subcontractors/suppliers beware: form over substance.

• Author: Hollander, Howard J.
• Position: Florida

The recent trend of at least some Florida courts to prefer form over substance should send bells of alarm through the construction industry. The problem is focusing on the requirements of F.S. [sections] 713.06, mandating that subcontractors and suppliers who are not in direct privity with the owner must send a timely and adequate "notice to owner" to preserve their statutory construction lien rights.

F.S. [sections] 713.06 serves a noble purpose because it makes the owner aware of who is supplying labor and materials to the site, in an effort to keep the owner from paying twice for the same work. The statute requires that the notice to owner "substantially" follow the statutory form. The statute does not require the precise statutory form to be used. Further, the statute states that "[i]f a lienor has substantially complied with the provisions of paragraphs (a), (b), and (c), errors or omissions do not prevent the enforcement of a claim against a person who has not been adversely affected by such omission or error."(1)

The claim of lien statute(2) also does not require that the precise statutory form be used. F.S. [sections] 713.08(3) requires only that the form be "substantially" similar to the statutorily prescribed form. F.S. [sections] 713.08(4)(a) also allows for some insubstantial discrepancies by stating: "The omission of any of the foregoing details or errors in such claim of lien shall not, within the discretion of the trial court, prevent the enforcement of such lien as against one who has not been adversely affected by such omission or error."(3)

Since both the notice to owner statute and the claim of lien statute allow some mistakes in detail without jeopardizing enforcement of the lien, the earlier court decisions gave meaning to this latitude by refusing to disallow the validity of the construction lien if there were no adverse consequences to the owner. Thus, in Symons Corp. v. Tartan-Lavers Delray Beach, Inc., 458 So. 2d 1254 (Fla. 4th DCA 1984), a discrepancy in the name of the owner listed in the notice to owner did not prevent enforcement of the lien. In a common sense approach, the Symons court reviewed the mistake in the owner's name, designating "Lavers Delray Racquet Club," instead of "Lavers Racquet Club." The court refused to vacate the lien, stating:

In cases upholding the sufficiency of the designation of an owner in the Notice of Owner under a Mechanics' Lien statute, the courts note that if the owner or others...