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Construction Lien due to Roofer not paying Materials Co. Lien placed on property.

Bradenton, FL |

There was a lien placed on our property on 2/21/13 due to the roofers not paying the materials company. We filed a Notice of Contest of Lien on 4/1/13. On 6/19/13 a Lis Pendens was filed against us. We have not been served anything as of 6/26/13. But on the bottom of the documents says that they were Electronically Filed on 4/30/13. Which date is the correct date to go by? The electronic filing date or the actual date the Clerk filed the paperwork? Isn't this lien invalid now due to the 60 days passing from when we filed the Contest of Lien? What can we do since the roofer will not pay the materials company?

Attorney Answers 3

Posted

From the sounds of it the lien has failed as a matter of law. The Lis Pendens is a cloud, but not a lien. If the Lis Pendens is based upon the lien, it too should go. We also need to think about the Notice to Owner, roofer's license, DBPR action and other options that make things like this go away.

Now, any decent lawyer will need to search the Official Records to make sure the documents are correct as per date and property, etc. But at this point you may need to file a quiet title/ slander of title action if nobody wants to play nice.

Before all of that, if a lawyer (lawyers scare people, homeowners don't - as a rule) reviews the material and calls the supplier they just might make this go away quietly.

This is not legal advice. Think of this as what you would recieve from a wise uncle. And remember, you have never believed everything your uncle told you either. With free advice you generally get what you pay for.

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1 comment

Asker

Posted

Thank you for your response. I failed to include that we never received a Notice to Owner and only found out about the lien when the attorney's office mailed us (no service and nothing to sign) the copy of the lien. Thank you again!

Posted

You count 60 days from the date the clerk mailed the notice to the lienor, then you add five days pursuant to rule 1.090 for service by mail. (Volksbank Regensburg eG v. Burger, 703 So.2d 538 (Fla. 4th DCA 1997). If the last day is a weekend or legal holiday go to the next non-weekend/holiday. that is the date the lawsuit must be filed against you (service of it will be later). If it is not timely filed, it is foreclosed.

This is a summary based on incomplete facts. You should not rely on it as legal advise. No attorney-client relationship is intended to be formed. You may call me 772-562-4570; email me vblawyer@bellsouth.net, or visit my website http://www.millerlawoffices.us

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Clifford M. Miller

Clifford M. Miller

Posted

Reading your facts again, I think the lawsuit is timely. The clerk mailed the notice no earlier than the day you filed it. The lawsuit was filed electronically 29 days later. 29<65. Service within 120 days after filing is allowed. The lis pendens is notice to the public that a lawsuit was filed, and does not effect the legal relationship between you and the lienor. So, its filing date does not effect this analysis.

Asker

Posted

Thank you. I failed to include that also we never received a Notice to Owner regarding the Claim of Lien. One was filed with the Clerk but we never received same. The only reason we knew there was a lien was due to receiving a letter from the attorney's office that filed the lien that included a copy of the lien. Wouldn't the failure to serve us with the NTO make the lien void in the first place?

Clifford M. Miller

Clifford M. Miller

Posted

Service does not mean receipt. But, if is was not timely mailed to you, the lien is invalid: Fla. Stat. 716.06 (2)(a) All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, must serve a notice on the owner setting forth the lienor's name and address, a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished. A sub-subcontractor or a materialman to a subcontractor must serve a copy of the notice on the contractor as a prerequisite to perfecting a lien under this chapter and recording a claim of lien. A materialman to a sub-subcontractor must serve a copy of the notice to owner on the contractor as a prerequisite to perfecting a lien under this chapter and recording a claim of lien. A materialman to a sub-subcontractor shall serve the notice to owner on the subcontractor if the materialman knows the name and address of the subcontractor. The notice must be served before commencing, or not later than 45 days after commencing, to furnish his or her labor, services, or materials, but, in any event, before the date of the owner's disbursement of the final payment after the contractor has furnished the affidavit under subparagraph (3)(d)1. The notice must be served regardless of the method of payments by the owner, whether proper or improper, and does not give to the lienor serving the notice any priority over other lienors in the same category; and the failure to serve the notice, or to timely serve it, is a complete defense to enforcement of a lien by any person.

Asker

Posted

Thanks so much!

Posted

If the materials supplier has not yet sued you to foreclose on its lien, it's too late. The Lis Pendens is not a lawsuit. It typically gets filed with a lawsuit on a lien so you should chech the court system online to see if a suit was also filed on the lien and when. Again if one hasn't been, it's too late now and the lien is no longer of any legal effect. If the supplier sues on the lien now, hire a construction lawyer to get it dismissed. The law should allow you to get reimbursed for your attorneys fees to get the suit dismissed. You should also consider a complaint against the roofer's license if you've paid the roofer for the materials and he refused to pay the supplier. Good luck.

The information provided herein is for general informational purposes only and does not establish an attorney-client relationship. Persons seeking legal advice should consult directly with a licensed attorney or contact the Florida Bar for assistance in finding an attorney.

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3 comments

Asker

Posted

Thanks so much for your response! There was not a Complaint or Summons or anything else filed except for the Lis Pendens. We wouldn't have even known about the Lis Pendens but we received an advertisement from another attorney's office for services due to foreclosure and that prompted me to look at the Clerk's site and that is when I saw the filing. Thanks again!

Gary Louis Brown

Gary Louis Brown

Posted

My pleasure. Hope it works out for you.

Jeffrey Lee Price

Jeffrey Lee Price

Posted

My congratulations on finding the contest of lien statute. I know many attorneys who never give it a second thought, even though it can work magic.

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