Florida/Georgia Personal Injury & Workers Compensation

...aim of lien. We then directed the Association to file a response to Trintec's petition and its motion for clarification. The parties' written submissions disagree regarding the primacy of the condominium law provision regarding mechanic's liens, see section 718.121, Florida Statutes (2006), versus section 713.08, Florida Statutes (2006), the mechanic's lien law requirements themselves....

...; or (b) the condominium association created by the declaration. The Association argues that the mechanic's lien law's use of "owner" means each individual condominium unit owner, such that those owners are indispensable parties. We consider in turn section 718.121(2) of the Florida Statutes; the applicable provisions of Chapter 713; Florida Rule of Civil Procedure 1.221, entitled "Homeowners' Associations and Condominium Associations"; and the decisional law regarding these provisions, in order to harmonize all of them in a fair and practicable way. A. Section 718.121(2) Section 718.121, entitled "Liens," protects unit owners by limiting the manner in which liens may be imposed upon condominium property after the declaration of condominium has been recorded. First, section 718.121(1) requires the unanimous consent of all unit owners for the imposition of any lien against "the condominium property as a whole," and it further provides that "liens may arise or be created *279 only against individual condominium parcels." This affords a basis, for example, for an individual unit owner to record a mortgage lien over his or her unit. Section 718.121(2) addresses mechanic's liens in particular and under the scenario involved here: Labor performed on or materials furnished to the common elements are not the basis for a lien on the common elements, but if authorized by the associati...

...erials are deemed to be performed or furnished with the express consent of each unit owner and may be the basis for the filing of a lien against all condominium parcels in the proportions for which the owners are liable for common expenses. Finally, section 718.121(3) confirms that if a valid lien encumbers multiple condominium parcels, each owner of an encumbered parcel may exercise the rights of a property owner under Chapter 713 [2] "or by payment of the proportionate amount attributable to h...

...terials for the roof work. The express consent of each unit owner is thus "deemed" to have been given, and Trintec could properly file a lien against all condominium parcels in the proportions for which the owners are liable for common expenses. See § 718.121(2)....

...The Debtor contends that because the Declaration of Condominium was recorded prior to the Bank's mortgage, the Plat Book Legal Description used in the Bank's mortgage was fatally flawed and did not operate to convey a perfected lien on the property. The Debtor relies for this proposition on Florida Statutes § 718.121(1), which provides: (1) Subsequent to recording the declaration [of condominium] and while the property remains subject to the declaration, no liens of any nature are valid against the condominium property as a 'whole except with the unanimous consent of the unit owners....

...it is legally ineffective to create a lien against the property. The Debtor relies for this proposition on Bank One, Dayton, N.A. v. Sunshine Meadows Condominium Association, Inc., 641 So.2d 1333 (Fla.1994). I conclude that the Debtor's reliance on § 718.121(1) and Sunshine Meadows is misplaced. Section 718.121(1) expressly provides that a lien which describes "the condominium property as a whole" is permitted with the consent of all of the condominium unit owners....

...The Bank asserts its lien only against condominium units owned by the Debtor, which was the owner of all of the *847 condominium units when the mortgage was recorded and which remains the owner of the 191 units [1] upon which the Bank now seeks to foreclose. The purpose of § 718.121(1) is made clear in Sunshine Meadows....

...er against a part of the phased property, where unit owners (those in Phase I, for example) who did not consent to the Bank One mortgage and whose property rights in common elements would be impaired if the mortgage were foreclosed. It is clear that § 718.121(1) was designed to protect third party condominium unit owners from liens which would impair their units unless they consented to those liens....

...aration. The statute also provides in section 718.107(2) that "[t]he share in the common elements appurtenant to a unit cannot be conveyed or encumbered except together with the unit." With respect to the imposition of liens on condominium property, section 718.121(1), Florida Statutes, states: Subsequent to recording the declaration and while the property remains subject to the declaration, no liens of any nature are valid against the condominium property as a whole except with the unanimous consent of the unit owners....

...ount that two condominium unit owners paid as their proportionate share of this obligation. The primary question in this appeal is whether the judgment finding that East Coast was entitled to a mechanic's lien is valid. Royal argues strenuously that section 718.121(1), Florida Statutes (1981), renders East Coast's lien unenforceable because the lien, as filed, purports to establish a mechanic's lien upon the condominium as a whole, contrary to the statute, which says "no liens of any nature are...

...mon elements pursuant to a contract with the condominium association, the association's authorization is tantamount to the unanimous consent of all of the condominium unit owners. In support of this contention, East Coast relies on subsection (2) of section 718.121, which states that, if improvements are authorized by the association, the work is deemed furnished by the express consent of each unit owner. Thus, East Coast maintains that its lien on the property as a whole is authorized. Liens on condominiums are controlled by section 718.121, Florida Statutes....

...ommon expenses. Ideally, as we said in Southern Colonial Mortgage Company, Inc. v. Medeiros, 347 So.2d 736 (Fla. 4th DCA 1977), describing each unit and its respective percentage share of common expenses in the claim of lien would neatly comply with section 718.121(2)....

...me-share owners (which would, of course, raise even more serious constitutional questions), the statute apparently contemplates that the managing entity will, or can, pay all the taxes because the statute gives the managing entity a lien pursuant to section 718.121 or section 721.16 on the time-share periods for taxes and assessments. § 192.037(8), Fla. Stat. Section 718.121 relates to liens against all condominium units for labor and materials furnished, with the unanimous consent of all unit owners, to improve the common elements. It is noted that section 718.121(3) specifically provides that each condominium owner can relieve his unit of such a lien by payment of a proportionate amount of such labor or material lien for improvement of common elements....

...o the building ... seven (07) days per week,” but it is clear from the record the same services were being provided pursuant to this agreement as well. The Victoria Group purported to file the claim of lien in this case pursuant to Chapter 713 and section 718.121 of the Florida Statutes (2009)....

...As previously indicated, the trial court first entered an amended order on summary judgment in the sum of $280,737.27, reflecting the total amount due under the three agreements, followed by a Final Judgment of Foreclosure on the individual condominium units under Chapter 713 and section 718.121 of the Florida Statutes. Parc Central’s first point on appeal is that the trial court erred in foreclosing the claim of lien filed pursuant to Chapter 713 and section 718.121 of the Florida Statutes....

...Parc Central Condominium was not a condominium under construction during the time the Victoria Group was providing services to it. Additionally, we disagree with the Victoria Group’s contention it has an independent right to a claim of lien under section 718.121. As pointed out by Parc Central, we rejected that principle several years ago. See Trintec Constr., Inc. v. Countryside Vill. Condo. Ass’n, 992 So.2d 277, 279 (Fla. 3d DCA 2008) (“[Sjection 718.121(3) confirms that if a valid lien encumbers multiple condominium parcels, each owner of an encumbered parcel may exercise the rights of a property owner under Chapter 713 ....”) (emphasis added)....

...The Victoria Group contends that because the services in this case were “authorized by the association,” they "are deemed to be performed or furnished with the express consent of each unit owner and may be the basis for the filing of a lien against all condominium parcels” within the meaning of section 718.121....

...e issues in this Court, despite the parties’ discussion regarding agency in their briefs and the extensive facts proffered in support of agency in the trial court. 2 Treasures further contends that any disputes of fact are immaterial because under Section 718.121, Florida Statutes (2005), it cannot be liable as a matter of law for South Florida’s work....

...or or materials are deemed to be performed or furnished with the express consent of each unit owner and may be the basis for the filing of a lien against all condominium parcels in the proportions for which the owners are liable for common expenses. § 718.121(2) (emphasis added)....

only against individual condominium parcels.” § 718.121(1), Fla. Stat. (1983) (emphasis added). The unit

...4th DCA 1997) (holding that “where, as in the present case, there was no objection to the insufficient notice prior to the [summary judgment] hearing, at the [summary judgment] hearing, nor in the motion for rehearing, the issue has been waived”)). See also § 718.121(6), Fla....

...o quash service”). Gateland also argues the trial court erred in dismissing based on Gateland’s purported failure to satisfy statutory conditions precedent to 2 suit found in sections 718.116(5)-(6) and 718.121(4), Florida Statutes (2020). In a written order of dismissal, the court ruled as follows: The Condominium Act sets out preconditions that must be satisfied before the Association can file to foreclose on Holly. See Florida Statute 718.121(4) and 718.116(5) and subsection (6)....

...uch as in the instant case, recording a claim of lien is not an absolute prerequisite to the enforcement of a lien for unpaid assessments. . . . Id. at 19 (alterations in original). Finally, although the applicable version of section 718.121(4) provides that a notice of intent must be sent to the unit owner prior to filing a lien, Gateland did not file a lien....

...Bell, 564 F.2d 734, 736 (5th Cir.1977). At the outset, I note that the Debtor provides no new evidence, no new case authority, and no structured argument or analysis of the Rule 60(b) standards which govern its motion. First, the Debtor questions my legal analysis of Florida Statutes § 718.121(1) and the Florida Supreme Court's ruling interpreting this provision in Bank One, Dayton, N.A....

...The Debtor asserts precisely the same position on this matter as it put forth in its opposition to the Stay Relief Motion [DE 19]. The Debtor offers no new grounds to support its position that a fundamental misconception of law occurred. Boisterous and enthusiastic writing challenging my understanding of Fla. Stat. § 718.121(1) does not establish that I have plainly misconstrued *301 the law....

...ay one hundred thirty-three percent (133%) of their proportionate share. Moreover, Florida law prohibits a lien creditor from seeking to hold a condominium unit owner liable for more than his or her pro rata share of a common expense. See Fla. Stat. § 718.121(3) ("If a lien against two or more condominium parcels becomes effective, each owner may relieve his or her condominium parcel of the lien by exercising any of the rights of a property owner under Chapter 713, or by payment of the proportionate amount attributable to his or her condominium parcel."); see also Fla....

...section 197.582(2)(a), Florida Statutes (2022), with each unit bearing a proportionate share. We disagree and reverse. Per the City’s argument that the lien was against Green Terrace’s common elements, the code enforcement lien would violate section 718.121(1), Florida Statutes (2022), because it would be a lien against the entire Green Terrace, imposed without the unanimous consent of the individual condominium unit owners....

...In reaching this conclusion, we begin with the understanding that the starting point for statutory interpretation is the plain text of the statute. Conage v. United States, 346 So. 3d 594, 598 (Fla. 2022). A. The City’s Position is in Conflict with Section 718.121(1) If the meaning of “against the property” means that a lien against common elements is also a lien against all of Green Terrace’s property and the individual condominium units, a conflict with section 718.121(1), Florida Statutes (2022), is created....

...n as will place a particular statute in conflict with other apparently effective statutes covering the same general field.” L.S. v. State, 346 So. 3d 42, 45 (Fla. 4th DCA 2022) (quoting Wakulla Cnty. v. Davis, 395 So. 2d 540, 542 (Fla. 1981)). Section 718.121 prohibits liens against a condominium as a whole without the unanimous consent of the condominium unit owners: Subsequent to recording the declaration and while the property remains subject to the declaration, no liens of...

...race’s common elements; neither party maintains that the lien is against the Association. 4  owners. During this period, liens may arise or be created only against individual condominium parcels. § 718.121(1), Fla....

...condominium ownership, whether or not contiguous, and all improvements thereon and all easements and rights appurtenant thereto intended for use in connection with the condominium.” § 718.103(13), Fla. Stat. (2022). By using the phrase “no liens of any nature,” section 718.121(1) applies to all types of liens, including code enforcement liens. See Baker v. Econ. Rsch. Servs., Inc., 242 So. 3d 450, 453 (Fla. 1st DCA 2018) (“‘any’ means ‘all’” (quoting Anders v. Hometown Mortg. Servs., Inc., 346 F.3d 1024, 1028 (11th Cir. 2003))). Therefore, section 718.121(1) prohibits code enforcement liens that are placed on a condominium as a whole without the unanimous consent of the unit owners. Bank One, Dayton, N.A. v. Sunshine Meadows Condominium Ass’n, 641 So. 2d 1333 (Fla. 1994), is instructive in construing and applying section 718.121(1)....

...The supreme court rejected Bank One’s argument, relying on the declaration of condominium, statutes, and mortgage law. Relevant to this appeal, the court explained that Bank One consented to having its mortgage subject to the declaration, meaning that section 718.121(1), Florida Statutes applied....

...of any nature are valid against the condominium property as a whole except with the unanimous consent of the unit owners. During this period, liens may arise or be created only against individual condominium parcels.” § 718.121(1), Fla....

...declaration, including the provisions that prohibit separating the title to a unit from the common elements and require the common elements to remain undivided so long as the condominium exists. 6 Id. By citing section 718.121(1) and finding that the owners did not consent to a lien against the condominium property as a whole, the supreme court determined that a lien on the common elements of a condominium, when applied to all the individual units, was a li...

...the entire condominium property requiring the individual unit owners’ consent. Under Bank One’s rationale, the City has attempted to impose a lien on the entirety of Green Terrace by imposing a lien on the common elements, which conflicts with section 718.121(1)....

...When a lien applies equally to every interest comprising a condominium, the lien is fairly characterized as affecting the condominium as a whole. Because Green Terrace’s individual unit owners did not consent to the City’s lien, the lien violates section 718.121(1). B....

...nted and because the lien’s face does not indicate the lien is attached to individual condominium units. Our opinion in Royal Ambassador Condominium Ass’n v. East Coast Supply Corp., 495 So. 2d 932 (Fla. 4th DCA 1986), dealt with an exception to section 718.121(1) that proves the general rule. Royal Ambassador applied section 718.121(2), Florida Statutes (1981), which provided then, and still provided in 2022, in pertinent part: Labor performed on or materials furnished to a unit may not be the basis for the filing of a lien under part I of chapter 71...

...performed or furnished with the express consent of each unit owner and may be the basis for the filing of a lien against all condominium parcels in the proportions for which the owners are liable for common expenses. 7 § 718.121(2), Fla....

...condominium parcels, except for Units 1705 and 1007, that have been created thereon in the proportions for which the owners thereof are liable for common expenses.” 495 So. 2d at 933. Trying to invalidate the mechanic’s lien, the condominium association argued that section 718.121(1) rendered the lien unenforceable on the basis that the lien sought to establish a lien against the property as a whole. Id. at 934. In response, the builder which held the mechanic’s lien argued that under section 718.121(2), if the association authorized the work there was consent of all the individual condominium owners to impose a lien against the entire complex....

...Ideally, as we said in Southern Colonial Mortgage Company, Inc. v. Medeiros, 347 So. 2d 736 (Fla. 4th DCA 1977), describing each unit and its respective percentage share of common expenses in the claim of lien would neatly comply with section 718.121(2). Royal Ambassador, 495 So....

...entire condominium, and we found the lien enforceable because it explicitly mentioned the condominium units and their proportional shares in the common elements. Id. The key distinction between Royal Ambassador and Bank One is that Royal Ambassador applied section 718.121(2), which explicitly allows a mechanic’s lien to be imposed against “all condominium parcels.”4 4 Under section 718.121(2), where labor is performed and materials are furnished to the common elements with the approval of the association, the association’s 8 Because section 718.121(2) applies only to mechanic’s liens, and the mortgage at issue in Bank One was not a mechanic’s lien, the general prohibition on liens against a condominium as a whole applied. See Bailey v. Shelborne Ocean Beach Hotel Condo. Ass’n, Inc., 307 So. 3d 74, 82 (Fla. 3d DCA 2020) (noting that where one of three exceptions did not apply, the general rule applied). Additionally, section 718.121(2) explicitly allows a condominium association to furnish the individual owners’ express consent, whereas section 718.121(1) does not. Thus, in Royal Ambassador, we could apportion the lien against individual units because the lien at issue was a section 718.121(2) mechanic’s lien; the condominium unit owners had given their express consent; and the lien explicitly stated it was against certain individual condominium units. Here, by contrast, the code enforcement lien is not a mechanic’s lien, so section 718.121(2) does not apply. Also, Green Terrace’s unit owners had not consented, because section 718.121(1) does not permit a condominium association to consent on behalf of its individual condominium unit owners....

...The City’s brief fails to explain how an individual condominium unit owner would have notice of the lien. Conclusion The City sought to impose a lien against Green Terrace as a whole by imposing a lien against Green Terrace’s common elements. This violates section 718.121(1), which allows liens against an entire condominium only with all individual unit owners’ consent....