The decision issued by Florida’s Fourth District Court of Appeal found that where a property owner alleged in its complaint that the lien should be discharged due to the contractor’s failure to serve a notice to owner, 713.21(4) did not apply.
Calixte v. Coastal Building Contractors, LLC, arose after a subcontractor recorded a construction lien against a property owners’ home. The Property owner filed a lawsuit seeking to discharge the lien under 713.21(4), Florida Statutes, and for damages for slander of title. The allegations of the lawsuit included claims that the subcontractor had failed to perfect the lien by serving a notice to owner as required by 713.06, Florida Statutes. The clerk issued the summons under 713.21(4), Florida Statutes, which was served on the subcontractor. In response, the subcontractor filed a motion for extension of time to respond to the Complaint.
The property owners ultimately moved to discharge the lien, arguing that the subcontractor failed to begin an action to enforce the construction lien within the 20 days required by 713.21(4), Florida Statutes. (We’ve written about liens being discharged for failing to timely begin enforcement actions before. You can click here and here to read those)
The subcontractor then moved to vacate or rescind the summons, arguing that 713.21(4), Florida Statutes, only applies to “properly perfected” liens, and the complaint specifically alleged that the subcontractor failed to perfect its lien. The trial court agreed with the subcontractor and denied the motion to discharge and granted the motion to vacate the summons. The property owner then filed a petition for a writ of mandamus with the Fourth District Court of Appeal.
In support of its petition, the property owners argued that once the subcontractor failed to timely enforce the lien under 713.21(4), Florida Statutes’, mandatory 20-day period, the trial court had no discretion but to discharge the lien and that nothing in 713.21, Florida Statutes, requires a lien to be properly perfected in order to be discharged by the court.
The appellate court disagreed with these arguments, starting first with the plain language of 713.21(4), Florida Statutes, which states:
A lien properly perfected under this chapter may be discharged, or released in whole or in part, by any of the following methods:
. . . .
(4) By an order of the circuit court of the county where the property is located, as provided in this subsection. Upon filing a complaint by any interested party the clerk shall issue a summons to the lienor to show cause within 20 days after service of the summons why his or her lien should not be enforced by action or vacated and canceled of record. Upon failure of the lienor to show cause why his or her lien should not be enforced or the lienor's failure to commence such action before the return date of the summons the court shall order cancellation of the lien.
(emphasis in original)
The court also noted that 713.06, Florida Statutes, indicates that a notice to owner is a prerequisite to perfecting a lien for a subcontractor. “Thus, until the statutory prerequisite of serving a written notice to the property owner is satisfied, the lien claimant has not perfected his or her lien rights.”
The court concluded by denying the petition, stating that:
As the complaint in this case specifically alleged [the subcontractor] had failed to perfect its lien by serving a “notice to owner” and therefore had no lien rights, [the property owners’] could not avail themselves of the special statutory procedure authorized by section 713.21(4). As such, the trial court had no discretion but to vacate the summons and deny [the property owners’] motion to discharge the claim of lien. This is not to say a property owner has no remedy when a lien claimant has not properly perfected his or her lien rights. However, the special statutory procedure authorized by section 713.21(4) is not the proper remedy under such circumstances.
This case is a reminder that Florida’s Construction Lien Laws are typically strictly construed and that not all portions of the lien law apply to all circumstances.