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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