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How can I file a lien on a property?

I am an individual, not a contractor. I was in the process of purchasing a house from a neighbor. The house is elevated near the water. The foundation poles were rotted and the house was sagging. We had a hurrican pending and the owner and I both were concerened about the stability of the house. In the week before the storm came in I agreed to repair and replace the support post and stabilize the house at a cost of $18,000. The house owner agreed to verbally to pay me back in the event that the sale did not go through. He also agreed to email me a simple document to that effect. I paid to have the house repaired but the man did not send the document confirming the agreement. The sale of the house did not go through and now the owner says that he is not going to reimburse me. How can I file a lien on this property?

6 replies

Oct 21, 2019

This is a pretty interesting situation that will challenge some of the finer details about the Florida mechanics lien & construction lien laws. Hopefully, one of the Florida construction attorneys chime in here to provide any details that I may miss.

Are you qualified to file a Florida mechanics lien?

The first question is whether you are protected by Florida mechanics lien laws. As mentioned in your question, you are not a contractor or supplier. It doesn't sound like you actually performed any labor on the job or directly supplied materials. Instead, it sounds like the property owner entered into a verbal agreement with you to arrange for the repair of the building. You then paid to have the building repaired, presumably paying contractors/suppliers for their work.

Part 1: Are you a "contractor?"

In the Frequently Asked Questions about Florida's Mechanics Lien Laws in Levelset's resource center, there are details about who is and who is not protected under the lien law.

"The following parties have mechanics lien rights: Prime contractors, subcontractors, sub-subs, laborers, material supplier to owner/contractor/sub/or sub-sub, and professionals (architect, landscape architect, interior designer, engineer, surveyor or mapper)."

So, for you to qualify as someone who can file a mechanics lien, you'll need to be considered a "prime contractor." This brings us to the lien statute's definitions. § 713.01. Definitions(8) defines the term “Contractors” as someone "who enters into a contract with the owner of real property for improving it." Based on your description of the facts and the statutory definition of contractor, it looks like you may actually be considered the "contractor" here, because you entered into an agreement with the property owner for the purposes of improving it.

Part 2: Was the "Contract" Valid & Protected Even If It's Not In Writing?

A very common question about recovering money owed and determining lien rights is whether a contract must be in writing, or if it can be verbal. And, of course, this is a key issue in your situation. While some states have very strict requirements about this, you are lucky to be in Florida, where the laws explicitly allow for verbal construction agreements. Florida Statutes § 713.01. Definitions(6) defines the term “contract” as "an agreement for improving real property, written or unwritten, express or implied, and includes extras or change orders." Also, check out this video for a discussion of this question:

Part 3: Since you are a contractor...did you need a license?

Being considered a "contractor" may be helpful for the purposes of qualifying to file a mechanics lien, but being a "contractor" begs the question about whether you need to have a license. In defining the term "Contractor," the above statute actually goes on to specifically address this:

In order to have lien rights in Florida, a license is a prerequisite for those entities by which license is required by Florida law.

To figure this out, you can consult this article about Florida construction license requirements: Florida Contractor’s License: Requirements, Exceptions, and Penalties. You can also review this "Do I Require A License" page on the Florida Department of Business & Professional Regulation website, which provides this about the licenses required for the "Construction Industry:"

A Contractor is someone who demolishes, subtracts from, builds or improves any building or structure for compensation... Essentially, if you pay someone to construct a building or a structure, make structural alterations to load bearing walls, or perform services such as plumbing or air conditioning work, that person has to have a state contractors’ license.

This section of the website goes onto list a bunch of different types of construction activities that...look nothing like what you did here. Your role in this scenario is a lot more similar to a "construction manager" role, which doesn't explicitly need a license in Florida (but, also, doesn't explicitly have lien rights in Florida!). Levelset has some articles about whether construction managers can file mechanic lien claims, although one addresses the rules in California, the situation in Florida is very, very similar:

Conclusion -- Do You Have Lien Rights?

So, in short, there is a bit of gray area here, but I think you have a pretty colorable argument to argue that you are contemplated here as a "contractor" or "construction manager," and have lien rights, but also do not need to have a license to do what you did on this job.

Did You Need to Send A Florida Notice to Owner?

Now that you are feeling good about your mechanics lien rights, now you must ask...did you take steps to preserve your lien rights? In Florida, many parties are required to send a "notice to owner" at the start of a project to keep their lien rights intact. The next thing you have to determine is whether you were required to send this notice. And if so, whether you sent it/sent it on time. You can learn more about Florida's Notice to Owner rules here:

Those materials are mostly just bonus materials for you, though, because you're likely exempt from any NTO requirement under this situation. In Florida, "all parties who did not contract directly with the property owner must serve a Notice to Owner (NTO) on the property owner within 45 days of furnishing labor and/or materials to the construction project." In your case, you contracted directly with the owner, and would be exempt from this requirement.

How To Prepare & File The Mechanics Lien in Florida?

So, you're now all the way there. It looks like you may have a colorable argument to file a lien in this situation. However, I will give you one word of warning -- it's certainly not black & white clear that you have you lien rights here. It's tricky. It's gray. That can work for and against you. To get familiar with filing liens in these situations you may want to review this article: Frivolous Mechanics Liens: Intentionally Fraudulent vs. Honest Mistakes. Presuming you want to move forward with the lien -- here are some steps / things that will help. First, make sure you have time. In Florida, a "prime contractor" -- someone who contracts directly with the owner (like you!) must file a mechanics lien within 90 days from last furnishing labor or materials to the project. So, whenever the repair work that you commissioned was completed, count 90 days from that date...that's your deadline. Second, prepare your Florida mechanics lien form. Here are 2 resources that will help you with that:

And finally, you'll need to get your lien claim filed in the right Florida county recorder office. Here is a list of the Florida Recorder Offices that record mechanics lien claims. Choose the county where the job was located! Getting Help Recording Your Mechanics Lien You can get some help recording your mechanics lien. First, you can hire a great Florida construction attorney, like Florida construction attorney Jason Lambert, to do this for you. Or, you can use Levelset to get the paperwork done and the lien e-recorded. Click here to have Levelset record your mechanics lien -- it'll take just a few minutes. And for good measure, here is a video that provides an overview of the Florida mechanics lien rights & requirements: Good luck!

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Mar 29, 2021

I think that there may be two causes here that are actionable. If no lien is allowed under challenge then there is in fact an agreement between the parties that creates a loan condition. The terms of the loan may be problematic but it was given on a handshake and the lender performed its duty including assuring contractor performance in an emergency situation (an impending hurricane). Most likely 2-3 years to file? More than enough to create a binding agreement for repayment.

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While verbal agreements can be enforceable in some situations, having a written agreement is generally more effective when dealing with property matters. If the house owner agreed to reimburse you in the event the sale didn't go through, a written agreement would provide stronger evidence of this agreement. https://www.tellpopeyes.biz/

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