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John Jude Thresher

John Thresher’s Answers

1 total

  • Action against False lien

    What action can I take against a cowboy scam builder who filled a lien on my duplex. I did not know he was not licensed and the works were badly done and incomplete, so I refused to pay the final half of the agreed sum. It filled a lien for even m...

    John’s Answer

    While I agree with my colleagues evaluation relative to Ch. 489 (the licensing statute), the focus of this response will be on the Florida Lien Law.

    Florida's construction lien law is set forth in Ch. 713, Fla. Stat. The lien law is very complex and can be unforgiving to contractors who opt to attempt to navigate its waters without the assistance of an attorney familiar with its many potential pitfalls.

    From the limited facts provided, it seems apparent to me that the claim of lien is unenforceable (the two most obvious reasons being that an unlicensed contractor cannot record a lien, and an overstatement of the amount of a lien renders the entire lien unenforceable. An unenforceable lien will remain as a mark against title for a period of one year from the date it was recorded, after which time it will expire if foreclosure proceedings have not been initiated. An Owner who has had an invalid lien recorded against their property can shorten the duration of the lien using a couple different procedures contemplated by Ch. 713 (Notice of Contest procedure or Seeking Order to Show Cause).

    Fla. Stat. 713.29 allows the prevailing party in a lien foreclosure action to recover their attorney's fees. A second basis for recovering attorney's fees is included within Fla. Stat. 713.31, which section deals specifically with fraudulent liens. In addition to providing for attorney's fees, S. 713.31 provides a basis for recovering punitive damages against a contractor that has overstated the amount of a lien, which punitive damages are dictated by the amount of the exaggeration.

    In summary, the Florida Lien Law is a statutory creature created to provide a means of assuring contractors that they will be paid for work that they have performed, which work has improved real property. The law provides an extraordinary amount of leverage for an unpaid contractor that has dotted it's I's and crossed its T's, allowing for the property itself to be sold at auction and the proceeds from sale used to pay for the contractor's work. However, because of the extreme nature of the remedy available to an unpaid contractor, there are a great number of protections in place against the improper use of the Lien Law for homeowners. Removing the lien from your property should prove a relatively simple matter for an experienced construction litigator or an attorney familiar with the Lien Law; however, the fact that it could be easily handled by someone with the right knowledge should not lead to the conclusion that it could be easily handled by anyone. I would strongly encourage you to retain the services of a qualified attorney to evaluate your situation in greater detail, and I would suggest speaking with an attorney whose practice is dedicated to handling lien matters or whose practice is primarily focused on construction law. Any board certified construction attorney should be able to assist you with ease.

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