[RPPTL-constructionlaw] Claims of Lien Drafted by NoticeCompanies

[Dan Vega]

If the lienor can prepare the lien and the lienor is not an attorney, is that not also the unlicensed practice of law?

 

When you say that a notice company prepares the lien, is the lienor or the notice company executing/signing  the lien?  

 

It would seem to me that a lienor could have a 12 year old handwrite the lien but if the lienor executes/signs/and causes it to be recorded it, then the lienor prepared it and is bound by it for better or worse.  

 

In my opinion, notice companies serve a valid purpose in that they facilitate payment to many lienors who otherwise would not even know or understand how to perfect lien/bond rights.  Inasmuch as the lien law’s purpose is to protect the little guy and ensure payment, if in the end, the lienor is executing the lien, authorizing the service of a notice to owner/contractor/non-payment and causing the lien to be recorded, I am not really sure why this is a problem.  I am also not sure what  the goal is from those opposed to notice companies.  

 

Obviously if a lien is defective, inflated, untimely, or just plain wrong, etc, the lienor faces a fraudulent lien defense or counterclaim and will certainly not be able to blame the notice company for its blunder.

 

Dan

 

 

 

 

Daniel R. Vega, Esq.

Board Certified in Construction Law

Taylor Vega, P.A.              

121 Alhambra Plaza, Suite 1604

Coral Gables, Florida 33134

Telephone: (305) 443-2043

Facsimile:  (305) 443-2048

Cell:  (305) 962-5186

E-mail: dvega at taylorvega.com <mailto:dvega at taylorvega.com> 

 

 

 

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From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Barry Kalmanson
Sent: Wednesday, May 02, 2012 1:39 PM
To: CHernicz at herniczlegal.com; constructionlaw at lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] Claims of Lien Drafted by NoticeCompanies

 

Have you investigated the the unlicensed practice of  law issue? You may find language in the reported opinion on preparation of notices to owner interesting.

Barry Kalmanson
bkpa1 at aol.com <mailto:bkpa1 at aol.com> 

 

-----Original Message-----
From: Charles B. Hernicz, Esq <CHernicz at herniczlegal.com <mailto:CHernicz at herniczlegal.com> >
To: 'RPPTL constructionlaw' <constructionlaw at lists.flabarrpptl.org <mailto:constructionlaw at lists.flabarrpptl.org> >
Sent: Wed, May 2, 2012 12:56 pm
Subject: [RPPTL-constructionlaw] Claims of Lien Drafted by Notice Companies

The 2007 changes to chapter 713 included a change to 713.08 that states--

 

(2) The claim of lien may be prepared by the lienor or the lienor’s employee or attorney and shall be signed and sworn to or affirmed by the lienor or the lienor’s agent acquainted with the facts stated therein.

 

My understanding was that this was intended to prohibit notice companies from drafting claims of lien.  The result has been that the notice companies are still drafting the liens but no longer putting their information in the “Prepared by and return to” block.  I’ve had several problems in the past few weeks with liens improperly drafted, and in one case signed by the notice company as “agent” of the contractor and recorded without the contractor’s knowledge or approval (which almost blew up a settlement deal we had worked out).  What can/should be done to stop this??

 

Chuck

 

Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road 
Wellington, FL 33414 
Telephone: (561) 753-7511 
Facsimile: (561) 753-7082 
Chernicz at HerniczLegal.com <mailto:Chernicz at HerniczLegal.com> 

 

 

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