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Liening on Your Contract

January 12, 2012 Construction Industry Legal Blog

Reading Time: 2 minutes


Construction liens under Chapter 713, Florida Statutes are complex and require careful attention. A construction lien will can be imposed on real property for nonpayment of labor and/or materials provided in the improvement of that real property. Florida Statute § 713.01 defines a “contract” as an agreement for real property improvement(s) which may be written or oral, express or implied, which also may include extras and/or change orders.  Florida law requires a valid contract to exist, otherwise a construction lien cannot attach to the property.

If valid, the agreed contract price must exceed $2,500.00 for Florida Construction Lien law to even apply to the project.  Construction liens are not allowed on projects where the direct contract between the owner and contractor is under $2,500. Also, the contract will be unenforceable if the contractor is not licensed. Fla. Sta. § 489.128.  Thus any lien filed under such unenforceable contract will be invalid.

Now what happens when there is more than one contract on the project and as a licensed contractor, you have not been paid?  Lien on your contract. If two contracts have been signed to procure improvement on the same structure, but the contracts are distinct with diverse arrangements and exclude reference to a prior contract, it is then mandatory to file two separate construction liens. See Lee v. All Florida Const. Co., 662 So.2d 365, 366 (1995).   In Lee, a contractor was performing renovation work when a hurricane damaged the house.  The owner and contractor executed a separate contract for the hurricane damage.  In this situation, the contractor should have recorded a lien for the renovation work and a separate lien for the repair work.

While a contract can be implied in fact, it cannot be implied in law. When a contract is implied in law, there is no agreement but a legal fiction to prevent unjust enrichment. See CDS & Assocs. of Palm Beaches, Inc. v. 1711 Donna Rd. Assocs., Inc., 743 So.2d 1223, 1224 (Fla. 4th DCA 1999). Stated differently, because a construction lien requires an agreement and a contract implied in law does not, a construction lien is not available. Therefore, a contract implied in law allows for a separate recovery rather than a construction lien when the parties had no dealings with each other. Id.   Such recover is the unsecured claim of unjust enrichment.  If you have questions concerning your lien rights, you should contact your construction attorney for an opinion.

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