FAILURE TO INCLUDE STATUTORY NOTICE TO OWNER WARNINGS WILL INVALIDATE YOUR LIEN
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It is common knowledge among construction practitioners that lien law, a creature of statute, must be strictly construed. Aetna Casualty & Surety Co. v. Buck, 594 So. 2d 280, 281( Fla. 1992). Nevertheless, lien law itself provides latitude to parties in certain areas.
For example, although section 713.08, Florida Statutes, mandates that certain information must be included in the statutory claim of lien form, the failure to include that information does not defeat a lien: [ T ] he 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. A similar exception exists in section 713.06( 3)( d)( 4), Florida Statutes, regarding deviations from the statutory contractor’ s final payment affidavit form.
By including these exceptions, the legislature has indicated a preference that lienors should retain lien rights despite nonprejudicial deviations from the statutory forms. But, while lienors can take some comfort knowing that the legislature has protected them from some sloppiness, they would be ill-advised to assume that courts will offer the same leniency regarding deviations from other statutory forms.
In contrast to the express exceptions for claim of lien and final contractor’ s affidavit forms, the lien law does not provide an exception for deviations from the statutory Notice to Owner(“ NTO”) form. The NTO form, prescribed in section 713.06, Florida Statutes, requires lienors to:( i) identify the work they are doing on the owner’ s property and for whom they are doing the work; and( ii) include precise warnings notifying the owner of the lienor’ s right to lien the owner’ s property in the event of nonpayment. While some courts have overlooked certain minor deviations from the statutory NTO form, courts universally hold that the absence of the mandated statutory warnings renders a NTO invalid, which results in an unenforceable lien. See Gulfside Props. Corp. v. Chapman Corp., 737 So. 2d 604, 607( Fla. 1st DCA 1999)( holding that the failure to serve a NTO that included all of the mandatory statutory warnings“ was fatal to establishing [ the lienor’ s ] lien against the subject property”); Mirror & Shower Door Prods. Inc. v. Seabridge, Inc., 621 So. 2d 486, 487( Fla. 4th DCA 1993)
While lienors can take some comfort knowing that the legislature has protected them from some sloppiness, they would be ill-advised to assume that courts will offer the same leniency regarding deviations from other statutory forms.
( holding that service of a NTO including the mandatory statutory warnings“ is a prerequisite to perfecting a lien under Chapter 713”); Allstar Bldg. Materials, L. T. D. v. Kronauer, 724 So. 2d 616, 616( Fla. 5th DCA 1998)( holding that deviations from the statutory NTO form, including deleting the words“ IMPORTANT FOR YOUR PROTEC TION,” invalidated a lien).
In strictly enforcing the lienor’ s obligation to include the NTO statutory warnings, Florida courts have appeared to implicitly hold that the omission of such warnings is per se prejudicial. Therefore, lienors and their counsel should carefully review their NTO form( or the form used by their chosen NTO service) to ensure it complies with the statute. The failure to do so could be fatal to the lienor’ s rights.
Author: Erik Raines- Hill Ward Henderson PA
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