[CLC-Discussion] Warning on Claim of Lien
RPPTL CLC-Discussion
clc-discussion at lists.flabarrpptl.org
Tue Feb 15 09:14:55 PST 2022
Prejudice is always fact intensive. For example if the foreclosure complaint is filed 61 days than the owner was prejudiced by not receiving notice that it could shorten the term of the lien , etc.. I haven’t seen the NTO cases but I would imagine the owner wasn’t prejudiced because he did not pay the GC already.
…UNLESS THE OWNER OF SUCH PROPERTY TAKES ACTION TO SHORTEN THE TIME PERIOD, THIS LIEN MAY REMAIN VALID FOR ONE YEAR FROM THE DATE OF RECORDING, AND SHALL EXPIRE AND BECOME NULL AND VOID THEREAFTER UNLESS LEGAL PROCEEDINGS HAVE BEEN COMMENCED TO FORECLOSE OR TO DISCHARGE THIS LIEN.
Thanks,
Jack
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From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Tuesday, February 15, 2022 11:24 AM
To: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Warning on Claim of Lien
I had this issue come up years ago shortly after they amended the statute to require the warning. Client’s lien didn’t have the warning (no I didn’t do the lien 😊) and the Owner moved for summary judgment. The court denied the motion because the owner couldn’t demonstrate prejudice as required by the statute: “However, the negligent inclusion or omission of any information in the claim of lien which has not prejudiced the owner does not constitute a default that operates to defeat an otherwise valid lien.”
My recollection is that the Owner argued the case law where a defective NTO invalidated a lien.
Good luck!
Gary L. Brown
Partner (Board Certified in Construction Law)
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of RPPTL CLC-Discussion
Sent: Tuesday, February 15, 2022 8:46 AM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Warning on Claim of Lien
Thanks, Gentlemen, for the feedback. I agree with the NTO analysis. I also realize that 713.08(3) is not as specific and will allow an omission that does not prejudice the owner. It may be stronger than the 713.015 language that requires the warnings to be in contracts. However, the language does give the Leeway that I have not yet seen a court opinion decide.
Regards,
Paul
Paul S. Martin, Esq.
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-----Original Message-----
From: RPPTL CLC-Discussion <clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>>
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org> <clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>>
Sent: Mon, Feb 14, 2022 1:55 pm
Subject: Re: [CLC-Discussion] Warning on Claim of Lien
Like Lee, I am aware of a case where the Notice to Owner was invalid because it was not in substantially the statutory form. The statue was subsequently warning language. Section 713.06(2)(c) was subsequently changed to state “and must include the information and the warning contained in the following form….” This is slightly different than the language in section 713.08(3) but the intent is the same even though it does not include the term “must.”
Good luck,
Cary
Wm. Cary Wright
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of RPPTL CLC-Discussion
Sent: Monday, February 14, 2022 11:24 AM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Warning on Claim of Lien
Good morning Paul,
It is a statuory requirement, see below. I haven’t seen an opinion negating the lien but I wouldn’t think the issue would make it to an appeals court. Maybe there is a trial court order out there but I am not aware of it.
“The claim of lien shall be sufficient if it is in substantially the following form, and includes the following warning: “ § 713.08(3), Fla. Stat. Ann.
Thanks,
Jack
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Jack Taylor | Attorney
Direct Line: (321) 204-4012
Angius & Terry LLP<http://angius-terry.com/>
Ft. Lauderdale | Orlando | Palm Harbor
(954) 839-6200 (407) 624-3070 (727) 474-0200
www.constructiondefectlaw.com<http://www.constructiondefectlaw.com>
Check out our new and improved website at constructiondefectlaw.com<http://constructiondefectlaw.com/>! Don’t forget to like us on social media! [Facebook] <https://www.facebook.com/angiusandterry/> [youtube] <https://www.youtube.com/playlist?list=PLnWtPz90yUDN9m6uagSG23OSZDdeCBgBz> [A close up of a sign Description automatically generated] <https://www.linkedin.com/company/angius-terry-llp-fl/>
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of RPPTL CLC-Discussion
Sent: Monday, February 14, 2022 10:18 AM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: [CLC-Discussion] Warning on Claim of Lien
Good morning.
Has anyone seen any court rulings that invalidated a Claim of Lien for not having the "WARNING" language on it? I have not seen any that finds there was prejudice or bring adversely affected for that language or the required language in the contract for the Construction Lien law notice.
Similarly, I had not seen a Claim of Lien without the WARNING for awhile and have just run across one.
Curious what is being seen out there.
Paul
Paul S. Martin, Esq.
Law Offices of
Paul S. Martin & Associates, P.A.
2134 Hollywood Boulevard
Hollywood, FL 33020
USA
Phone 954.923.4604
Telefax 954.923.6545
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