Under Florida’s construction lien law, a claim of lien must be served on the property owner either before recording or within 15 days of recording. Failure to do so makes the claim of lien voidable to the extent the failure to serve or any delays in service prejudice the property owner. To make this process more nerve-wracking, Florida’s construction lien law also specifies the ways to properly serve a lien and where it can be sent. And a recent court decision confirms whether service is valid when the homeowner refuses to pick up the lien.
Fettig’s Construction, Inc. v. Paradise Properties & Interiors, LLC, involved a lawsuit between a general contractor and a property owner arising from a lien recorded against the property by the contractor. In 2018, the owner hired the GC to renovate its premises. When the relationship between the parties fell a part, the contractor recorded its claim of lien and ultimately filed suit seeking to foreclose the lien and for breach of contract and unjust enrichment. One of the property owner’s defenses to the lawsuit was that the contractor had not properly served it with a copy of the lien or the contractor’s final payment affidavit.
With regard to the service of the lien, the property owner’s address listed on the notice of commencement was the same as the property where the work was being performed. Despite this, the contractor sent the lien and the contractor’s affidavit to property owner’s mailing address shown in its records with the Florida Division of Corporations and the address of its registered agent. Both certified mailings to these addresses were returned as unclaimed, vacant, or undeliverable.
In evaluating whether this constituted good service of the lien, the Fourth District Court of Appeal, first looked at the plain language of section 713.18, Florida Statutes, which governs service of notices to owner, liens, and other documents sent under Florida’s Construction Lien Laws. In reversing judgment in favor of the property owner, the appellate court focused on subparagraph 3 of that statute, which states:
(3)(a) Service of an instrument pursuant to this section is effective on the date of mailing the instrument if it:
1. Is sent to the last address shown in the notice of commencement or any amendment thereto or, in the absence of a notice of commencement, to the last address shown in the building permit application, or to the last known address of the person to be served; and
2. Is returned as being “refused,” “moved, not forwardable,” or “unclaimed,” or is otherwise not delivered or deliverable through no fault of the person serving the item.
(b) If the address shown in the notice of commencement or any amendment to the notice of commencement, or, in the absence of a notice of commencement, in the building permit application, is incomplete for purposes of mailing or delivery, the person serving the item may complete the address and properly format it according to United States Postal Service addressing standards using information obtained from the property appraiser or another public record without affecting the validity of service under this section.
Specifically, the court found that based on the language of the statute, delivery to the last known address was permitted regardless of the existence of a notice of commencement or a building permit application. This was critical for the general contractor, because it impacted whether the claim of lien was timely served, and therefore enforceable against the property owner. While the appellate court ultimately determined that various factual disputes between the parties required reversal and required the matter to proceed to trial, the ruling that contractors can serve notices and liens on a last known address is an important clarification that makes it easier to obtain service of notices and liens.
The key takeaways from this case are that, first, contractors should always try to send out notices early rather than at the deadline. This allows you to take advantages of some of the less strict provisions of Florida’s construction lien laws. Second, while the best practice is to serve a lien on the addresses shown on the notice of commencement, contractor’s can also use other known addresses to ensure service. Finally, if there is any question about how or where to serve a notice to owner or lien, contractors should review the requirements of section 713.18, and serve it on all the addresses available. The cost of extra postage is minimal compared to the risk of sending it to the wrong address.