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How do I file a lien against a Condo Assn for work performed in common areas?

The Condo Assn hired us to handle water damage, mold remediation, and the build-back for multiple hallways (common areas). This has been an ongoing project. We do not want to file liens against individual units. Only for the common areas that the Association has hired us to do.

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Oct 4, 2018

Liens with respect to condo associations (or HOAs) can be especially tricky and confusing. Florida has attempted to clear it up through statute, but there are still some places that can be difficult to navigate. Additionally, Florida's condominium act limits the applicability of mechanics lien protection for common area work in some situations.

The good news is that work on common elements, when the work is authorized by the condo association, does give rise to mechanics lien protection in Florida. Generally, in order for a mechanics lien to be appropriate for work on condominiums (including common areas) the express consent of the owners is needed. However, an authorization from the association itself for work on the common elements is treated as the express consent of all the individual owners.

A lien for work to the common areas is not a lien on the common areas themselves though, but is actually a lien on the individual condominium parcels. Fla. Stat. 718.121(2) states, in part, that:

". . . Labor performed on or materials furnished to the common elements are not the basis for a lien on the common elements, but if authorized by the association, the labor or materials are deemed to be performed or furnished with the express consent of each unit owner and may be the basis for the filing of a lien against all condominium parcels in the proportions for which the owners are liable for common expenses.”

After this point, it can get tricky, however. While the actual step by step process of filing a lien remains the same no matter the encumbered property type, condos raise an additional question: whether 1 lien against the entire condominium property is sufficient, or if individual liens against each separate condo in proportion to the condo ownership is better.

Cases in Florida have hinted that individual liens are better: "it is more effective and more equitable to lien each unit owner for its pro rata share of the work performed based upon each unit owner’s pro rata interest in the condominium. For example, where general contractor is claiming a lien for work on the common elements of a condominium building, the general contractor should claim a lien not against the condominium property as a whole, but rather upon all the individual units contained in the condominium building where the work was performed. Royal Ambassador Condominium Association v. East Coast Supply Corp., 495 So. 2d 932 (Fla. 4th DCA 1986); Southern Colonial Mortgage v. Medeiros, 347 So. 2d 736 (Fla. 4th DCA 1977).

This raises practical considerations, however. There are definitely cases in which there are so many individual condos that filing individual liens would be time and cost prohibitive. Additionally, if all separate parcels are noted on one lien individually, county recorders often have trouble with indexing the lien claim, and may reject it.

Liens on condo projects can be messy, and the sheer number of interested parties doesn't help.

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