Florida/Georgia Personal Injury & Workers Compensation

...vided he strictly complied with the requirements of the statute. In the present case the owner, Adaptable Developments, did not comply with all the requirements of chapter 713. The statute meticulously lays out the procedures which must be followed. Section 713.07(4) requires that an owner who recommences construction on an abandoned job must, if he has not paid the lienors in full or pro rata, file an affidavit of intention to recommence and a new notice of commencement or he cannot subtract the cost of completing the project from the contract price....

...ers not in privity with the owner. [3] Under § 713.06 the total amount of liens of persons not in privity with the owner is limited by the total contract price of the direct contract if the owner follows the procedures mandated in the statutes. [4] § 713.07(4) states: If construction ceases before completion and the owner desires to recommence construction, he may pay all lienors in full or pro rata in accordance with s....

...such failure or delay is shown to have been prejudicial to any person entitled to rely on it. F.S. § 713.08(4) (c), F.S.A. [9] F.S. § 713.21(3), F.S.A. [10] F.S. § 713.21(4), F.S.A. [11] F.S. § 713.22, F.S.A. [12] F.S. § 713.05, F.S.A. and F.S. § 713.07(2), F.S.A. [13] F.S. § 713.06(1), F.S.A. [14] F.S. § 713.13, F.S.A. [15] F.S. § 713.07(2), F.S.A....

...to the first "visible commencement" of building operations. This problem was eliminated by that revision providing for a written recorded notice of commencement (Section 713.13, Fla. Stat.), and for liens to attach and run from such recorded event (Section 713.07(2), Fla....

...The Zalezniks then formally entered into a contract with Lundstrom. On August 14, 1987, the day the Zalezniks received Monarch's notice of abandonment, they recorded an owner's affidavit of intention to recommence construction and a notice of recommencement pursuant to section 713.07(4), Florida Statutes (1985)....

...n recommencing the job. The subcontractors rely on Florida Steel Corp. v. Adaptable Developments, 503 So.2d 1232 (Fla. 1986). Florida Steel involved a claim of a materialman against an owner who did not comply *781 with the technical requirements of section 713.07(4) before recommencing the job....

superior lien priority for condominium assessments); § 713.07(2), Fla. Stat. (2004) (providing lien priority

...On June 29, 1978, Watts filed an affidavit stating that Stites had abandoned its contract. The affidavit also served as notice of the owners' intention to recommence construction of the Kentucky Fried Chicken building. In this affidavit, as required by Section 713.07(4), Florida Statutes, lienors who had not been paid in full were listed....

...n interest in real property" under the above subsection. They contend the notice of commencement was rendered ineffective as to them, and the priority dispute must be determined as if no notice of commencement had been filed. Appellees then point to Section 713.07(2), Florida Statutes, which provides that in the event a notice of commencement is not filed, a mechanics lien does not attach until it is recorded....

...om setoff by the government. Id. at 67. 21 Under Florida law, construction liens of laborers and materialmen have priority over all subsequently recorded encumbrances on the owner’s property. Fla. Stat. § 713.07(3) (1997)....

...We consider that the judgment below must be affirmed for two reasons. First, Corry's lien did not attach to the improved real property before Will-O-Wick, Inc. conveyed that property to the limited partnership, Will-O-Wick Apartments. Thus the partnership's interest has priority over the lien. Section 713.07(3) provides that a mechanic's lien "shall have priority over any conveyance, encumbrance or demand not recorded against the real property prior to the time such lien attached as provided herein, but any conveyance . . recorded prior to the time such lien attaches ... shall have priority over such liens." As a subcontractor, Corry's lien's priority is governed by Section 713.07(2) which provides that a lien shall attach and take priority at the time the owner files a notice of commencement, or, absent such a filing, at the time the claim of lien is recorded....

...of no further effect. [e.s.] The liens of those who later perform or furnish labor, services or materials for the improvement, whether in privity with the owner or not, relate back to and attach from the date of filing of the notice of commencement. Section 713.07(2), Florida Statutes (1989)....

...suant to Section 713.06(2)(a) within 45 days of the time it commenced its work but 7 days after the general contractor abandoned the contract; 3) Tamarac had the construction completed, but it did not record a notice of recommencement as required by Section 713.07(4), Florida Statutes (1973)....

...We hold that the payments Tamarac made before it recorded its notice of commencement were improper payments under Section 713.06(3)(a), Florida Statutes (1973). In addition, we hold that Tamarac's failure to file a notice of re-commencement as required by Section 713.07(2), Florida Statutes (1973), rendered the payments Tamarac made to complete the project also improper payments....

...against the property. Priority Priority of construction liens is determined by the date of filing the notice of commencement unless no notice of commencement is filed, then priority is determined by the date of recording the claim of lien. Fla.Stat. 713.07(2); Corry Constr....

...For the reasons which follow, we agree that Allison on the Ocean acquired title to the property free and clear of the judgment lien. First, the statutory provisions governing the priority of liens establish the mechanic's lien to be superior to the judgment lien. Section 713.07(2), Florida Statutes (1983) provides: Liens under ss....

...certified copy of it is recorded in the official records or judgment lien record of the county, whichever is maintained at the time of recordation. Paul's Carpet's mechanic's lien attached on May 3, 1982, the date it recorded its claim of lien. See § 713.07(2), Fla....

...lien. Second Issue. Whether a subdivision owner is required to file and post a notice of recommencement after abandonment by the general contractor in order for payments on the subsequent work to be proper. The Baumgartners contend that pursuant to Section 713.07(4), Florida Statutes (1975), a subdivision owner is not required to file and post a notice of recommencement after abandonment. Harrell contends that Tamarac Village, Inc. v. Bates & Daly Co., 348 So.2d 23 (Fla. 4th DCA 1977), requires the filing and posting of the notice of recommencement. *804 Third Issue. Whether Section 713.07(1), Florida Statutes (1975), affords the first subcontractor to file a lien against a subdivision a higher priority than that of other claimants under the same contract who timely file their claims. The Baumgartners contend that the priority of Harrell's lien is governed by Section 713.06(4), Florida Statutes (1975), rather than Section 713.07(1), Florida Statutes (1975). Harrell contends the priority of his lien is established by Section 713.07(1) but priority is of no consequence here because the Baumgartners failed to plead or prove as a setoff against Harrell's lien the necessary and proper payments made by them to complete the subdivision improvements....

...We reverse. A subdivision owner is not required to file a notice of recommencement after abandonment of subdivision improvements. Section 713.13(1), Florida Statutes (1975), requires an owner to file a notice of recommencement after abandonment as does Section 713.07(4) which concludes that the notice be filed as provided in Section 713.13, Florida Statutes (1975)....

...However, Section 713.13(4), Florida Statutes (1975), clearly states that Section 713 does not apply to an owner who is constructing improvements described in Section 713.04. Third Issue. We affirm. Although the trial court was correct in its holding that under Section 713.07(1), Harrell's lien being the first recorded, attached and took priority at that time, it would make no difference because the Baumgartners failed to plead and prove a setoff against Harrell's lien. Section 713.07(1) states that liens under Section 713.04 shall attach at the time of recordation and shall take priority at that time....

...First, appellants argue that the trial court erred by granting a materialman's lien based upon a pro rata formula pursuant to section 713.06(4)(b), Florida Statutes (1981), when the construction project in question involved a subdivision development governed by sections 713.04 and 713.07, Florida Statutes (1981)....

...(1981). On June 3, 1983, appellee's attorney agreed to entry of the final summary judgment based on pro rata distribution. On June 7, 1983, appellants' attorney sent a supplemental memorandum of law to the court, claiming that the proper statute was section 713.07, Florida Statutes (1981)....

...appellants based on pro rata distribution. We find that the trial court did not err by ordering pro rata distribution according to section 713.06(4)(b), Florida Statutes. Appellants essentially argued that subdivision liens under sections 713.04 and 713.07 are independent of the other provisions of chapter 713, part I, so that the pro rata distribution provisions of section 713.06(4)(b) could not apply. There is no merit to this argument. Sections 713.04 and 713.07 provide for less restrictive notice requirements for subdivision liens and a means for attaching liens where the improvements were on lands dedicated to the public. Sewer Viewer, Inc. v. Shawnee Sunset Developers, Inc., 454 So.2d 701 (Fla. 2d DCA 1984). There is no alternative method of distribution described in section 713.04, nor 713.07. The rest of chapter 713, part I, except as excluded by sections 713.04 and 713.07, applies to subdivision liens....

...DeSanti, 521 So.2d 285, 287 (Fla. 2d DCA 1988) (quoting Symons Corp. v. Tartan-Lavers Delray Beach, Inc., 456 So.2d 1254, 1259 (Fla. 4th DCA 1984)). In addition, a notice of commencement serves to determine the priority of liens under the Construction Lien Law. See § 713.07, Fla. Stat. (2005). Liens arising under sections 713.05 and 713.06, [2] Florida Statutes, attach and take priority as of the date the notice of commencement is recorded. § 713.07(2), Fla....

...tutes (1983), bars Foy's claim under the mechanic's lien statute because he filed his foreclosure suit more than one year after filing his original claim of lien, although his suit was filed within one year after filing an amended claim, pursuant to section 713.07(4)....

...Foy continued to work an additional eleven days, and on November 4, 1983, he filed a claim of lien for $4,640.00. On November 23, 1983, the Mangums filed an affidavit of intent to recommence construction on the residence. The affidavit showed Foy as an unpaid lienor, who was owed $4,640.00. Pursuant to the requirements of section 713.07(4), Foy recorded an amended claim of lien, within thirty days of the Mangums' filing. Section 713.07(4) provides: If construction ceases before completion and the owner desires to recommence construction, he may pay all lienors in full or pro rata in accordance with s....

...In this document, Foy claimed he was owed $6,590.00; and he claimed he worked in privity with both the general contractor and the Mangums. He filed this lawsuit on December 10, 1984. The issue in this case, (which has apparently not been addressed by any reported court opinion that we can find) is whether section 713.07(4) has the effect of extending the one year time limit in which to file suit to foreclose a mechanic's lien in section 713.22(1). Section 713.07(4) requires a claimant to re-file a lien claim after the owner files a notice of recommencement of construction....

...If the rule were otherwise "[T]he claimant could file over and over ad infinitum by the single expedient of filing an amended claim and thereby defeat the purpose of the statute for a speedy conclusion." Id. at 284. In this case, Foy had to re-file his lien claim pursuant to section 713.07(4) in order to establish his super-priority over later lien claimants....

...Further, if one time period is tolled as in this context, other filings and time periods under the mechanic's lien law may be similarly affected, leading to confusion in an area of the law which can least tolerate uncertainty. We hold that re-filing pursuant to section 713.07(4) does not extend the one year time limit of section 713.22(1) in which to sue to enforce a mechanic's lien claim....

...rred and discharged by the operation of the lis pendens statute since the claim of lien was unrecorded at the time the notice of lis pendens was filed. Ousley Sod Company says that its claim of lien "relates back" to the notice of commencement under Section 713.07(2), Florida Statutes (1975). As a result, its claim of lien is deemed to have been recorded at the time the notice of commencement was recorded. We find that Section 713.07(2), Florida Statutes (1975), is not applicable and that the lis pendens barred the enforcement of Ousley Sod Company's claim of lien....

...Ousley Sod Company took no steps to intervene in the mortgage foreclosure proceedings. Therefore, looking solely to the lis pendens statute, Ousley Sod Company's claim of lien was barred from enforcement. We now turn to the Florida Mechanics' Lien Law, and particularly to Section 713.07(2), Florida Statutes (1975), the "relation back" statute, to determine if there is any statutory provision which would save Ousley Sod Company's claim of lien from the operation of the lis pendens statute. Section 713.07(2), Florida Statutes (1975) provides: "Liens under ss....

...m of lien. The "relation-back" concept comes into play when the mechanic lienor seeks to foreclose his claim of lien or to assert the priority of his claim of lien in a foreclosure action initiated by another claimant. The relation-back provision of Section 713.07(2), Florida Statutes (1975), protects mechanic lienors from encumbrances or interest acquired in the property after the notice of commencement has been recorded....

...t. Thus, the "relation-back" concept presumes the acquisition or perfection of a claim of lien which is presently valid and enforceable. We find there is no conflict between the operation of the lis pendens statute and the relation-back provision of Section 713.07(2), Florida Statutes (1975)....

...nforceable. Had Ousley Sod Company sought to intervene in the mortgage foreclosure action within 20 days of the filing of the notice of lis pendens, its lien may have been determined to be valid and enforceable. If so, the relation-back provision of Section 713.07(2), Florida Statutes (1975), would be applied to determine the priority of Ousley Sod Company's claim of lien with respect to other claimants....

...til thirty days after the recording of the warranty deed. Appellees rely on two statutes to support the foregoing conclusion, to-wit: F.S. 713.05 which states that no lien under that section shall be acquired until a claim of lien is recorded, and F.S. 713.07(3) which states that any conveyance recorded prior to the time that a lien attaches any proceeds thereof has priority over the lien....

...good faith and owners of real property who purchased the property without notice of an unpaid materialman's claim, must suffer. Our reading of the statutes indicates that the legislature has resolved this dilemma in favor of appellees by virtue of F.S. 713.07(3) as paraphrased above....

...§ 713.13 (l)(a), before “actually commencing” to improve real property an owner must file a Notice of Commencement in the Office of the Clerk of the Circuit Court of the county in which the property is located, and must post a copy thereof. Fla. Stat. Ann. § 713.13 (l)(a) (West 1989). Under § 713.07 a lien for labor, services or materials furnished to the property attaches and takes priority at the time of recording the Notice of Commencement. Id, § 713.07....

...wed for such services or materials. The difference between the two statutes is the time the lien attaches and takes priority. A lien based on Florida Statutes § 713.04 attaches and takes priority as of the date the claim of lien is recorded. F.S.A. § 713.07(1). A lien based on Florida Statute § 713.05 attaches and takes priority as of the date a notice of commencement was recorded but if no notice was filed then the date the claim of lien is recorded. F.S.A. § 713.07(2)....

...Suter's lien takes priority as of February 13, 1985, since there is no notice of commencement recorded which corresponds to its claim. Accordingly, both liens attached post-petition and took priority over any subsequently recorded conveyance, encumbrance or demand as of the date the claim of lien was recorded. See F.S.A. § 713.07(3); see also, G.W....

...Companies, 363 So.2d 1125 (Fla. 1st DCA 1978); and Page Heating & Cooling, Inc. v. Goldmar Homes, Inc., 338 So.2d 265 (Fla. 1st DCA 1976). Notwithstanding bankruptcy, Suter's lien takes priority over Nash's lien since it was recorded first. See F.S.A. § 713.07(3)....

...§§ 545(2) and 1107. The liens of Suter and Nash did not attach or become perfected until after that date. Since the "transfer to a bona fide purchaser" occurred first, it takes priority over the lien claims of Suter and Nash according to Florida Statute § 713.07(3)....

...Section 546(b) protects those claimants who are protected under state law from the *183 general rule of priority, "first in time, first in right." In re Electric City, Inc., 43 B.R. 336, 338 (Bkrtcy., W.D.Wash.1984). The priority right given a mechanic's lien claimant under Florida Statutes §§ 713.05 and 713.07(2) who records a notice of commencement is that right which was intended by Congress in enacting § 546(b) to be exempt from the trustee's avoidance powers....

...Urban the full amounts owing to them. We affirm. The trial court correctly awarded Hart, Scotty’s, and Crown the full amount of their claims rather than only a proportionate amount of the undisbursed funds, notwithstanding the untimely filing of their notices to owner required by Section 713.07, Florida Statutes (1977)....

...ll that it was owed for lumber and hardware furnished to the project. FWS then recorded its claim of Ken for $467,123.48 as aKowed by Section 713.08, Florida Statutes (1995). Osprey then attempted to invoke the Notice of Recommencement provisions of Section 713.07(4), Florida Statutes (1995), by recording in the pubKc records an “Affidavit of Partial Abandonment and Intent to Recommence Construction” and a “Notice of Partial Commencement” relating only to the framing and rough carpentry portion of the project....

...Osprey and RAC had a “common identity” because they were related entities. Therefore, Osprey was in direct privity with JM and could not be required to pay more than the contract price with JM, to wit: $1,950,000 to complete the framing and rough carpentry. 2. Osprey compKed with section 713.07(4), Florida Statutes (1995), by recording the Affidavit of Partial Abandonment and Intent to Recommence Construction....

...use Osprey and RAC were related, and shared a common identity, Osprey was in privity with JM. This concept formed the foundation for the next step of the argument. *593 Osprey, now in privity with JM, could invoke the recommencement provisions of subsection 713.07(4), Florida Statutes (1995), file its “Notice of Partial Recommencement”, and eliminate any obligations to FWS because the cost of completing the framing and rough carpentry after JM defaulted was in excess of the original contract with JM....

...lman who diligently and accurately followed the construction lien law. Such an inequitable result would frustrate the rationale behind the concept of common identity, i.e., to prevent the related parties from reaping a windfall. B. RECOMMENCEMENT Subsection 713.07(4), Florida Statutes (1995), provides: 713.07 Priority of Liens.— (4) If construction ceases before completion and the owner desires to recommence construction, he may pay all lienors in full or pro rata in accordance with s....

...A copy of said affidavit shall be served on each lienor named therein. Before recommencing, the owner shall record and post a notice of commencement for the recommenced construction, as provided in s. 713.13. Even if we were to find Osprey’s common identity/privity argument persuasive, we interpret subsection 713.07(4) as prescribing a procedure that may be invoked when the owner has contracted with a general contractor and the entire construction project ceases, not when only a portion of the project ceases upon the default of a subcontractor not in privity with an owner....

...When RAC’s subcontractor, JM, failed to complete its portion of the construction project, that failure did not impact the contract between Osprey and RAC; accordingly, RAC honored its obligation and continued with the construction by finding a replacement for JM. Osprey, however, reacted in a way not contemplated by subsection 713.07(4), Florida Statutes, which allows an owner to recommence construction if construction ceases before completion and further allows an owner to protect itself against liens arising before the cessation....

...ities and more particularly RAC, treated JM’s default as a cessation of construction. In furtherance of this idea, it recorded the “Affidavit of Partial Abandonment and Intent to Recommence Construction,” a procedure not described either in subsection 713.07(4) or in any reported case....

...Osprey’s financial exposure should not have been affected by JM’s default since it was RAC’s obligation to deliver a completed project for the guaranteed price of $15,-212,000. Accordingly, we reject Osprey’s attempt to create a “partial” recommencement provision under subsection 713.07(4), so as to defeat FWS’s claim of lien....

...§ 713.13(1)(a), before “actually commencing” to improve real property an owner must file a Notice of Commencement in the Office of the Clerk of the Circuit Court of the county in which the property is located, and must post a copy thereof. Fla. Stat. Ann. § 713.13(1)(a) (West 1989). Under § 713.07 a lien for labor, services or materials furnished to the property attaches and takes priority at the time of recording the Notice of Commencement. Id. § 713.07....

...of Commencement in the Office of the Clerk of the Circuit Court of the county in which the property 3 is located, and must post a copy thereof. Fla. Stat. Ann. § 713.13(1)(a) (West 1989). Under § 713.07 a lien for labor, services or materials furnished to the property attaches and takes priority at the time of recording the Notice of Commencement. Id. § 713.07....

...��s Mechanics’ Lien Law regarding recommencement of construction. When a contractor has been terminated and the owner desires to complete the construction project, a specific procedure must be followed in accordance with the Mechanics’ Lien Law. Section 713.07(4), Florida Statutes (1981) 1 provides: (4) If construction ceases before completion and the owner desires to recommence construction, he may pay all lien-ors in full or pro rata in accordance with s....

...See Leiby, Florida Construction Law Manual § 7.05 (1981). Furthermore, these documents must be filed before construction is actually recommenced, and not, as argued by the appel-lees, before payments are made under the resumed construction. This is evident from the language of Sections 713.07(4) and 713.13(l)(a), Florida Statutes. Section 713.07(4), as previously set forth, provides that “[i]f construction ceases before completion and the owner desires to recommence construction, he may pay all lienors ......

...claims on the original work will not exceed the amount of the original contract price by filing the affidavit of intention to recommence construction and recording a new notice of commencement. When the owner complies with the provisions of Sections 713.07(4) and 713.13, he is entitled to set-off his cost of completing the improvement from the original contract price....

...ectly. The second effect of the failure of the owner to file an affidavit of intention to recommence construction pertains to the priority of liens stemming from the original construction. In addition to providing an owner with a right to a set-off, Section 713.07(4) determines the priority of liens between those lienors who worked on the initial construction and those who performed on the recommenced work, as well as other subsequent encumbrancers....

...See generally 2 Rakusin, supra, Ch. 14, pp. 3, 4, and 18. In such an event, the general rule is first in time, first in right. The original lienor may then lose his priority if a lienor on the recommenced construction is able to file first. None of the procedures set forth in Section 713.07(4) were complied with in the *1114 instant case. Had an affidavit and notice been recorded and served pursuant to Section 713.07(4), the appellees’ liability for the construction of their residence would have been limited to the balance of the contract price which remained unpaid after deducting the payments properly made to the original contractor and after d...

...ompliance with such law. McCurry testified that he did provide Mr. Eppolito with a copy of the Mechanics' Lien Law. Yet the copy contained no highlights or interpretative language. Moreover, the notice of recommencement and affidavit requirements of Section 713.07(4) are tucked away within a section of the law bearing the caption “Priority of Liens.” Considering the technically arcane nature of the Mechanics’ Lien Law, 4 McCurry was not justified in believing that the furnishing of his cli...

...ot be necessary. To the contrary, however, the Mechanics’ Lien Law clearly requires that a new notice of commencement be recorded before eonstruction is recommenced regardless of whether a release is obtained or an affidavit is filed. See Sections 713.07(4) and 713.13(l)(a), Florida Statutes.

...Section 713.21(3), Florida Statutes (1985); Diversified Mortgage Investors v. Benjamin, 345 So.2d 392 (Fla. 3d DCA 1977). 1 While it is true that for priority purposes, liens relate back to the date of rec-ordation of the notice of commencement, and take priority from the time of rec-ordation of the notice of commencement, section 713.07(2), Florida Statutes (1985), this assumes a valid and enforceable lien....

...the covenant against encumbrances. The court rejected the contention that an encumbrance could have existed at the time the deed was delivered because of the relating back of the lien to the time of the recording of the notice of commencement under Section 713.07, Florida Statutes (1975)....

...The construction lien law required a claimant to refile a claim of lien within 30 days after an owner filed a notice of recommencement of construction and provided that the failure to do so resulted in the loss of priority as to claimants filing after the 30-day period. § 713.07(4), Fla....

...1 Appellant first contends that the trial court erred in determining that its mechanic’s lien is junior and inferior to the Gulf purchase money mortgage in regard to lots 33 and 34. Appellant’s claim of lien was, of course, filed subsequent to the purchase money mortgage. However, Section 713.07(3), Florida Statutes (1981), provides that a mechanic’s lien “shall have priority over any conveyance, encumbrance or demand not recorded against the real property prior to the time such lien attached.” (e.s.) Section 713.07(2) provides that mechanic’s liens “attach and take priority as of the time of recordation of the notice of commencement.” (e.s.) The notice of commencement in the instant case was filed several months prior to the purchase money mortgage....

...r, prior to the execution of the mortgage, (emphasis in original) Id. 129 S. at 897. The statutes with which we deal are different in that the lien attaches and takes priority as of the time of the recordation of the notice of commencement. Sections 713.07(2) and (3), Florida Statutes (1981)....

...It is equally without dispute that the Debtor failed to pay the full amount due under the contract. Pursuant to § 713.08, Florida Statutes, White Sands recorded its claim of lien against the subject property in the public records of De-Soto County, thus perfecting its lien on the subject property. Under § 713.07(2), Florida Statutes, the lien relates back to the date of the recording of the Notice of Commencement, thus, it took priority over the mortgage, which was recorded subsequent to the filing of the Notice of Commencement....

...ective for one year unless terminated or extended. Blackton’s lien would relate back to the date of the recording of the notice of commencement only if Independence’s notice of termination was ineffective to terminate the notice of commencement. § 713.07(2), Fla....