AVVO: Q & A – Can a subcontractor file a lien on a property after it is sold to a new owner?

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Christopher J. Weiss

Under Fla. Stat. §713.07(2), liens under §713.05 (persons in privity) and §713.06 (persons not in privity) with the owner, attach and take priority as of the time that the Notice of Commencement is recorded. You would need to determine if the lien was recorded after a Notice of Commencement has expired. Does the Claim of Lien relate back to the Notice of Commencement, even though it was recorded after the Notice of Commencement expired (i.e. over one year after the Notice of Commencement was recorded), or does the new owner take priority over the Claim of Lien?

Unfortunately, the State of Florida law on the issue of whether a Claim of Lien relates back to a Notice of Commencement when the Notice of Commencement has expired is rather convoluted.

Under Fla. Stat. §713.07(3), such liens have priority over any conveyance, demand or encumbrance not recorded against the real property prior to the time that the lien attached, which in our example would be when the notice of commencement was recorded. Conversely, §713.07(3) further provides that any conveyance, demand, or encumbrance recorded prior to the time that the lien attaches has priority over such liens.

Fla. Stat. §713.13 governs notices of commencement. §713.13(5) states that:

Unless otherwise provided in the notice of commencement or a new or amended notice of commencement, a notice of commencement is not effectual in law or equity against a conveyance, transfer, or mortgage of or lien on the real property described in the notice, or against creditors or subsequent purchasers for a valuable consideration, after 1 year after the date of recording the notice of commencement.

Sorry for the length of the response, but it is a little complicated. Good Luck.

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