What are the Repercussions for Failing to Give the Condo Owner the Required Thirty-day Notice, Pursuant to Fla. Statute 718.121(4), Prior to Filing a Claim of Lien?
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Section 718.121(4), Florida Statutes, requires a condo association to provide a delinquent condo owner with a Notice of Intent to File a Lien, along with a thirty-day notice, prior to filing a Claim of Lien. Section 718.121(4) was added to the Florida Statutes in July 2008, becoming effective at that time. Since that section was added, there has been no case law involving a violation of that specific section of the statute. However, there are statutory protections that a condo owner has, and there is case law regarding the consequences for a lienor for not following the proper procedures for filing a Claim of Lien. In sum, if the statutory lien process is not followed strictly, the lien will be invalidated. Practically, if a required thirty day notice is not provided prior to filing the condominium assessment claim of lien, the condominium owner can file a “Notice of Contest of Lien” pursuant to Section 718.116(5)(c), Florida Statutes, to have the lien invalidated. If the lien is invalidated, the Condominium Association must start the process anew.
Once a lien has been recorded in the public records, the Florida Statutes provide a path for the owner to dispute the association’s Claim of Lien. Section 718.116(5)(c), Florida Statutes, allows a condo owner to file a “Notice of Contest of Lien” to challenge the lien. Once a condo owner files this notice to contest the lien, the clerk of court will mail a copy of this notice to the association by certified mail. The association then has ninety-days in which to file an action to enforce its lien or the lien is void. During that action, the association has the burden to prove that its lien is valid under the Florida Statutes and the Declaration of Condominium for the Association. If the association cannot, then the Court will deem the lien invalid.
While there is no case law specific to a condo association violating the thirty-day notice required by § 718.121(4), there is case law on the consequences to a lienor for not following the proper procedures for filing a Claim of Lien. Florida case law holds that if the statutory process for filing a Claim of Lien is not followed, the lien is deemed invalid and unenforceable. See Home Electric of Dade County, Inc. v. Gonas, 547 So.2d 109 (Fla. 1989) (explaining that an otherwise valid lien was denied because the contractor failed to follow Fla. Stat. § 713.16(2) by not providing the homeowner with a statement of work performed and amounts paid within thirty days after the homeowner’s request). See also Stresscon v. Madiedo, 581 So.2d 158, 160 (Fla. 1991) (holding that the acquisition of liens is purely statutory; therefore, there must be strict compliance with the statutory procedures and a failure to comply with such statutes will result in the denial of an otherwise valid lien). Once a lien is deemed invalid, the lienor must start the process for filing a Claim of Lien all over again if it is within the prescribed filing period. If the time has lapsed for perfecting that lien, then the lienor has lost lien rights.