Construction Liens – Timing is Key

By: J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Under Florida law, certain individuals and entities who provide labor, work, or materials for the improvement of real property may have a lien on the real property for the value of the labor or materials supplied. These liens are known as construction liens and are governed by Sections 713.001-713.37 of the Florida Statutes. These potential lienors may use construction liens to secure payment in the event they are not paid for their services. Even in cases where a contractor is paid in full, a supplier or subcontractor who has not been paid may still have lien rights against the property.

The process is different depending whether a potential lienor directly contracted with the property owner or whether the potential lienor is a subcontractor or supplier who contracted with the general contractor. In the latter case, the process for securing a lien includes the following:

The first step requires potential lienors to provide a “Notice to Owner”. A Notice to Owner is generally required to be served within 45 days of the potential lienor commencing to furnish his or her labor, services, or materials. The Notice to Owner statutory form can be found in Section 713.06(2)(c) of the Florida Statues. The Notice to Owner notifies the owner of the real property that the potential lienor has provided materials or services, describes the materials or services, and informs the owner that the potential lienor is entitled to a construction lien on the real property. Depending on the circumstances these notices must be served upon the owner, general contractor, designated person, and/or the lender for the project.

Following the Notice to Owner, a “Claim of Lien” may be recorded at any time during the progress of the work or thereafter but not later than 90 days after the final furnishing of the labor or services or materials by the lienor, or no later than 90 days after the termination of the contract between the general contractor and the owner. The Claim of Lien should be recorded in the clerk’s office for the county in which the property is located. The statutory template for a Claim of Lien can be found in Section 713.08(3) and must meet certain requirements as enumerated within the statute. The Claim of Lien must be served on the owner prior to recording or within 15 days after the recording of the Claim of Lien.

Constructions liens are generally valid for a period of one year after the claim of lien has been recorded. Any lienor who intends on enforcing his or her construction lien must file a lawsuit to foreclose the lien within the one-year period. An owner may shorten the one-year period from one year to 60 days by recording a “Notice of Contest of Lien.” The owner must also service the Notice of Contest of Lien on the lienor. If a lienor is served with this notice and fails to initiate a suit on the lien within 60 days, its lien will be extinguished.

Florida’s construction lien law framework can be very complicated and nuanced. It contains many pitfalls related to who is qualified to lien, notices and documents required to be served and recorded, and many strict deadlines. If the specific timeline and structure is not followed it can result in the loss of lien rights. To avoid these pitfalls and ensure your rights are protected, I recommend working with an attorney when dealing with Florida’s construction lien process.

J. Matthew Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Overview of Undue Influence Will Contests

By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

The term “Undue Influence” is a legal cause of action that can be brought in court when it is believed that a deceased person’s Last Will and Testament (trust, deed, beneficiary designation, etc.) was the product of another person’s over-persuasion, duress, force, coercion… to such a degree that the person who signed the document did not use their own free will power in executing the document.  The person filing the lawsuit also needs to have been negatively impacted as a result of the alleged Undue Influence.

Undue Influence is often not discovered until after a person has died and (in the typical scenario) their Last Will and Testament is presented to the court for probate administration (the legal process of transferring assets from a person’s estate to the proper beneficiaries).   When a person submits a Last Will and Testament to probate, the person who files the probate case is only required to serve notice of the proceedings to the following people: decedent’s surviving spouse, beneficiaries, persons who may be entitled to exempt property, and trustees of any revocable trust (if the decedent had a trust).  Therefore, if a person who has exerted Undue Influence in the creation of the deceased person’s Last Will and Testament, those who were improperly disinherited may never even be notified by the wrongdoer.

If a person receives a “Notice of Administration” document in a probate proceeding, they only have three (3) months in which to bring a challenge before they are time barred.  If a person does not receive the requisite Notice of Administration document, the general rule is that you would have up to four (4) years from date of death to bring a challenge before it becomes time barred.   However, a recent case which is binding on the 2nd Circuit Courts of Florida found that the “Delayed Discovery Doctrine” applied to the specific facts of a certain case and therefore the person who was improperly disinherited was able to bring the legal cause of action after the four (4) years had expired. The Delayed Discovery Doctrine is merely an exception to the general four (4) year rule. It means that in specific circumstances, the statute of limitations will be extended by the court to give the plaintiff more time to file the lawsuit (up to a maximum of twelve (12) years) if the plaintiff didn’t know of (or reasonable should have known) of the circumstances that gave rise to their legal cause of action.

Determining whether Undue Influence has occurred is a question of fact for the judge or jury to decide. However, common factors the court will consider in making that determination are as follows:

  • The presence of the beneficiary at the execution of the testamentary document;
  • The safekeeping of the testamentary document by the beneficiary after execution;
  • The procuring of witnesses to witness the execution of the testamentary document by the beneficiary;
  • The beneficiary instructing the preparing of the testamentary document to the drafter;
  • The beneficiary knowing the contents of the testamentary document prior to the document’s execution;
  • The beneficiary recommending or selecting the attorney; and
  • The beneficiary’s presence on occasions when the now deceased person had expressed a desire to make the testamentary document.

This list is not all inclusive but are some of the key factors to be considered in determining whether or not a document was the product of Undue Influence.

If you believe you may have a valid claim of Undue Influence, you should speak with a knowledgeable probate attorney to ensure you understand your legal rights and when the statute of limitations on your possible cause of action will expire.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.