Yesterday, Florida’s First District Court of Appeal affirmed a trial court ruling requiring a clerk to backdate the recording date of a construction lien to the date it was received and the recording costs paid, not the date the clerk actually got around to recording the lien. This decision will have a huge impact on recording liens in Florida and may help some contractors who have timely delivered liens to the clerk of court, only to have them still be recorded late.
The Honorable Jody Phillips v. Pritchett Trucking, Inc., arose from a trucking company supplying limerock materials and trucking services to a construction project owner by Costco. By the end of the trucking company’s work at the project, it was owed $118,288.83. When it was not timely paid, the trucking company mailed a lien in the amount of $118,288.83 to the clerk of courts by certified mail, along with a check for the recording costs. The certified mail receipt showed that the clerk received the lien three days before the expiration of the deadline for the trucking company to record the lien.
Despite this, the clerk did not record the lien until two days after the deadline for recording the trucking company’s lien had passed. The trucking company sued the clerk, seeking a writ from the court requiring the clerk to reflect the date of recording as the date of receipt. The trial court granted this request.
The clerk of courts appealed the ruling to the First District Court of Appeal. In reaching its decision, the appellate court first noted that section 28.222(3), Florida Statutes, states that a “clerk of the circuit court shall record . . . instruments presented to him or her for recording, upon payment of the service charges prescribed by law.” The court also noted that the clerk had no discretion in the performance of this duty.
The court also rejected an argument by the clerk that another statute, section 695.11, Florida Statutes, should control the court’s decision. Section 695.11, Florida Statutes, indicates that a document is recorded when the clerk affixes a register number as required by section 28.222, Florida Statutes. In rejecting the clerks’ argument, the court found that section 28.222, Florida Statutes, sets forth when a document must be recorded by the clerk, whereas section 695.11, Florida Statutes, merely indicates when a document can be considered recorded. The court concluded that seven days passed between when the clerk’s duty to record arose, and when it actually recorded the document. Because this was not “upon payment” of the relevant fees, the appellate court affirmed the trial court’s ruling.
Given the critical nature of recording dates for construction liens, this is a landmark decision and will likely change the way Florida’s clerks of court process or mark the recording dates on documents. The best practice for contractors is not to wait until only a few days remain to record a lien, but it is good to know that under this new decision, clerk’s will be required to mark the date of recording as the date they receive the lien and the recording fees, not when they actually get around to recording it.