13.2 Claim of Lien Perfection, 90-Day Deadlines & Foreclosure

13.2 Claim of Lien Perfection, 90-Day Deadlines & Foreclosure

Core Principle: Recording a Claim of Lien under Florida Statutes § 713.08 creates a formal encumbrance on real property title. To enforce this encumbrance, the lienor must strictly adhere to statutory recording deadlines, mandatory service requirements, conditions precedent to litigation, and procedural statutes of limitation.

Perfection of a construction lien converts an unrecorded equitable right into an enforceable, recorded property encumbrance. Failure to meet any statutory deadline in this process results in immediate loss of the lien.

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1. Perfecting the Claim of Lien (F.S. § 713.08)

To perfect a construction lien against private real estate, the lienor must record a formal Claim of Lien in the public records of the county where the real property is located.

The Strict 90-Day Recording Deadline

Under Florida Statutes § 713.08(5), the Claim of Lien must be recorded:

Strictly within 90 calendar days after the final furnishing of the labor, services, or materials by the lienor.

This 90-day statutory window is an absolute deadline. Florida courts have no equitable power to extend the 90-day period. If the 90th day falls on a Saturday, Sunday, or legal holiday, the deadline extends to the next business day under Florida Rule of Judicial Administration 2.514, but recording on day 91 under ordinary circumstances renders the lien completely void.

What Constitutes "Final Furnishing"?

Determining the exact date of final furnishing is one of the most frequently litigated issues on the Florida Construction Business and Finance Exam. Florida appellate courts (such as Aronson v. Keating and Home Electric of Dade County, Inc. v. G盖ron) have established clear legal standards:

• Qualifying Final Furnishing: Work performed in good faith, within a reasonable time, pursuant to the original contract requirements or approved change orders, that is substantial and necessary to complete the contractual scope.
• Non-Qualifying Work (Does NOT Extend the 90 Days):
  • Punch-list work of a minor or corrective nature.
  • Warranty repairs or service calls.
  • Remedying defective or non-compliant work.
  • Work performed after long unexplained project abandonment merely to resurrect expired lien rights.

If a roofing contractor finishes the roof installation on August 1 and returns on October 15 under a warranty callback to replace a cracked tile, the final furnishing date remains August 1. The October 15 warranty visit does not reset the 90-day clock.

Mandatory Form & Content of the Claim of Lien

Under F.S. § 713.08(1), the Claim of Lien must be executed under oath before a notary public and state:

1. Name and address of the lienor.
2. Name of the person or entity with whom the lienor contracted.
3. The total labor, services, or materials furnished, and the agreed contract price or value.
4. Description of the real property sufficient for legal identification.
5. Name of the property owner.
6. Date of first furnishing and date of final furnishing.
7. Total amount remaining unpaid (principal balance only; interest and attorney's fees are excluded from the face of the lien).

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2. Serving Copy of Claim of Lien (F.S. § 713.08(4)(c))

Recording the lien in the clerk of court's public records is only the first step. Under Florida Statutes § 713.08(4)(c):

The lienor must serve a copy of the recorded Claim of Lien on the property owner within 15 calendar days after recording.

Service must be accomplished using the authorized methods in F.S. § 713.18 (certified mail, hand delivery, or commercial overnight courier). While failure to serve the copy within 15 days does not automatically void the lien, Florida statute provides that failure to serve is a complete defense to enforcement if the owner demonstrates prejudice or detrimental reliance (e.g., the owner disbursed remaining funds to the general contractor after day 15 without notice of the recorded lien).

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3. Contractor's Final Payment Affidavit (F.S. § 713.06(3)(d)1)

A prime contractor (contractor in direct privity with the owner) cannot file a lawsuit to enforce a construction lien without first delivering a formal Contractor's Final Payment Affidavit.

Statutory Timing and Content

• Timing: Must be physically delivered to the owner at least 5 days prior to filing any lawsuit to foreclose the lien or enforce the underlying construction contract.
• Content: A sworn statement listing the legal names of all lienors contracting under the prime contractor who remain unpaid, specifying the exact amounts due or to become due to each. If all downstream lienors have been paid in full, the affidavit must explicitly swear that all lienors have been paid in full.
• Legal Impact: Delivery of the affidavit is a mandatory statutory condition precedent. If a general contractor files a foreclosure lawsuit without serving the affidavit at least 5 days prior, the action is subject to dismissal. If the one-year statute of limitations expires before the affidavit is delivered, the contractor permanently forfeits its lien rights.

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4. Foreclosure Actions & Acceleration Mechanisms

A recorded Claim of Lien does not remain valid indefinitely. Florida provides a strict baseline limitation period, as well as two statutory mechanisms that permit property owners to shorten the litigation window.

The Baseline One-Year Statute of Limitations (F.S. § 713.22(1))

Under F.S. § 713.22(1), a construction lien remains valid for a maximum period of 1 year from the date the Claim of Lien was recorded in the county public records. The lienor must file a formal foreclosure lawsuit in the circuit court within that one-year period. If no lawsuit is filed within one year, the lien automatically expires and becomes void by operation of law.

Shortening Mechanism 1: Notice of Contest of Lien (F.S. § 713.22(2))

An owner or owner's attorney seeking to resolve an encumbrance quickly may execute and record a Notice of Contest of Lien in the county public records:

1. The clerk of the circuit court serves a copy of the recorded Notice of Contest on the lienor at the address listed on the Claim of Lien via certified mail.
2. Upon service by the clerk, the lienor's deadline to file a foreclosure lawsuit is accelerated from the remainder of the one-year period down to exactly 60 calendar days from the date the clerk serves the notice.
3. If the lienor fails to file a foreclosure action in circuit court within 60 days, the lien is extinguished by operation of law, and clerk records a discharge.

Shortening Mechanism 2: 20-Day Summons to Show Cause (F.S. § 713.21(4))

An owner can accelerate the deadline even further by filing a civil complaint against the lienor in the circuit court:

1. The clerk issues a formal Summons to Show Cause pursuant to F.S. § 713.21(4).
2. The summons is formally served on the lienor, giving the lienor exactly 20 calendar days to file an action enforcing the lien or show cause why the lien should not be cancelled.
3. If the lienor fails to commence a foreclosure action within 20 days of service, the court enters an immediate order discharging and vacating the Claim of Lien from public records.

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5. Fraudulent Liens (F.S. § 713.31)

Florida strictly penalizes contractors or lienors who abuse the lien law process by filing exaggerated or bad-faith claims. Under F.S. § 713.31, a lien is deemed a fraudulent lien if:

• The lienor willfully exaggerates the amount claimed;
• The lienor willfully includes a claim for work not performed or materials not delivered; or
• The lienor compiles the claim with such willful and gross negligence as to amount to a willful exaggeration.

Severe Statutory Penalties for Fraudulent Liens

1. Complete Forfeiture: The lien is completely void, unenforceable, and discharged of record.
2. Civil Liability: The lienor is liable to the owner for actual damages suffered, court costs, reasonable attorney's fees incurred in invalidating the lien, and punitive damages equal to the difference between the claimed amount and the legitimate amount owed.
3. Criminal Sanctions: Filing a fraudulent lien is a third-degree felony under Florida law, punishable by up to 5 years imprisonment and disciplinary revocation of construction licenses.

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6. Transfer of Lien to Security / "Bonding Off" (F.S. § 713.24)

When a lien clouds title during a pending sale or refinance, the owner is not forced to wait for litigation to conclude. Under F.S. § 713.24, an owner, developer, or contractor can transfer the lien from the real property to alternative security:

• Methods of Transfer: Depositing cash with the clerk of the circuit court or filing a surety bond issued by a surety authorized to do business in Florida.
• Calculation of Required Security Deposit:
  • The face amount of the Claim of Lien; plus
  • Statutory interest at the legal rate for 3 years; plus
  • $1,000 or 25% of the face amount of the lien, whichever is greater, to apply toward court costs and attorney's fees.

Upon recording the certificate of transfer, the real property is instantly released from the lien encumbrance, restoring clear and marketable title to the owner while securing the lienor's recovery against the cash or bond deposit.