[CLC-Discussion] construction claims of lien and the dangers of arbitration

Wed May 21 16:37:53 PDT 2014

The lis pendens needs to be connected with a civil case?

48.23 Lis pendens.—
(1)(a) An action in any of the state or federal courts in this state operates as a lis pendens on any real or personal property involved therein or to be affected thereby only if a notice of lis pendens is recorded in the official records of the county where the property is located and such notice has not expired pursuant to subsection (2) or been withdrawn or discharged.
(b)1. An action that is filed for specific performance or that is not based on a duly recorded instrument has no effect, except as between the parties to the proceeding, on the title to, or on any lien upon, the real or personal property unless a notice of lis pendens has been recorded and has not expired or been withdrawn or discharged.
2. Any person acquiring for value an interest in the real or personal property during the pendency of an action described in subparagraph 1., other than a party to the proceeding or the legal successor by operation of law, or personal representative, heir, or devisee of a deceased party to the proceeding, shall take such interest exempt from all claims against the property that were filed in such action by the party who failed to record a notice of lis pendens or whose notice expired or was withdrawn or discharged, and from any judgment entered in the proceeding, notwithstanding the provisions of s. 695.01<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=48.23&URL=0600-0699/0695/Sections/0695.01.html>, as if such person had no actual or constructive notice of the proceeding or of the claims made therein or the documents forming the causes of action against the property in the proceeding.
(c)1. A notice of lis pendens must contain the following:
a. The names of the parties.
b. The date of the institution of the action, the date of the clerk’s electronic receipt, or the case number of the action.
c. The name of the court in which it is pending.
d. A description of the property involved or to be affected.
e. A statement of the relief sought as to the property.

Sincerely yours,

Randall Gilbert, Esq.

Board Certified Construction Lawyer

-----Original Message-----
From: Tim Atkinson [mailto:TAtkinson at ohfc.com]
Sent: Wednesday, May 21, 2014 7:42 PM
To: rgilbert <rgilbert at theconstructionlawyers.com>
Cc: Roberts, Hardy L.; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] construction claims of lien and the dangers of arbitration

What if a lis pendins is filed?

Timothy P. Atkinson

850-544-5304

On May 21, 2014, at 7:36 PM, "Randall Gilbert" <rgilbert at theconstructionlawyers.com<mailto:rgilbert at theconstructionlawyers.com<mailto:rgilbert at theconstructionlawyers.com%3cmailto:rgilbert at theconstructionlawyers.com>>> wrote:

If someone wanted to buy the property and looked in the public records and saw no suit was brought to enforce the lien within one year they would think the property is clean.

Filing a foreclosure of a construction lien in an arbitration is not public notice.

Therefore, the right step to take is to file the foreclosure claim in court and simultaneously move to stay pending arbitration.

Sincerely yours,

Randall Gilbert, Esq.

Board Certified Construction Lawyer

<image002.jpg>

From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org%3cmailto:clc-discussion-bounces at lists.flabarrpptl.org>> [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.

Sent: Wednesday, May 21, 2014 3:22 PM

To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org%3cmailto:clc-discussion at lists.flabarrpptl.org>>

Subject: [CLC-Discussion] construction claims of lien and the dangers of arbitration

Florida’s Second District Court of Appeal issued the attached decision this morning in Snell v. Mott’s Contracting Services, Inc., regarding construction claims of lien and arbitration proceedings.  The court held that Section 713.21(1) requires that an “action to enforce a construction lien must be brought ‘in a court of competent jurisdiction’ within one year of recording the claim of lien or it automatically extinguishes” and that an arbitration proceeding is not a “court.”  The court also held that the “the lien became unenforceable pursuant to section 713.22 prior to the issuance of the [arbitration] award” due to the contractor’s failure to file an enforcement action in court.

Much thanks to Matt Belcastro for bringing this decision to the attention of the Construction Law Committee.

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Hardy L. Roberts

Attorney at Law

Board Certified by the Florida Bar in Construction Law

4221 W. Boy Scout Blvd., Ste. 1000

Tampa, Florida  33607-5780

Direct:  813.229.4105 | Fax:  813.229.4133

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