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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AVVO Q&A: I Have a Lien on a Property and the Owner is Contesting – What Are My Options?

Christopher J. Weiss

Christopher J. Weiss

QUESTION:  I have a contract with the builder but he was dismissed by the owner. The builder never paid me my final draw so I put a lien on the property, the builder is gone with the owners money so my only avenue was to lien property. What are my options I had a contract with their builder? They are contesting lien.

You do not specify your status on the job. If you are not a subcontractor, but rather were only providing labor, a Notice to Owner may not be required. If you are a site work contractor, a Notice to Owner may not be required either. If you are a subcontractor and are not in privity with the Owner, then you must have timely served a Notice to Owner as set forth in F.S. 713.06. You also must have timely recorded a Claim of Lien within 90 days of your last furnishing. If the Owner has filed a Notice of Contest of lien, your time frame for filing suit is shortened. You should go see a specialist in this area ASAP. Florida has a number of Board Certified Construction Attorneys. Also, don’t forget, the contractor may have assets. Hire an asset investigator to see if the contractor has resources to bother going after. You might be surprised. Of course the payment records to you should provide the name and account number of the contractor’s bank. That could be a useful source to garnish as well. I wish you all the luck in the world. You may need it to collect.

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Best regards.
Christopher Weiss

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Do We Have to Close if the Construction is not Finished?

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This happens all the time. It’s the day of closing and the house isn’t finished.

The purchasers complete pre-closing inspection and realize there’s no way they can live in the house. They call their lawyer in a panic. “Do we have to close if it is not finished?” Reputable builders will not usually force purchasers to close on an unfinished house, but too often these days the electricians, plumbers and carpet layers are in a race to finish the house before the movers show up. As always, the answer depends on what your contract says. Does the contract require approval by the lender or the municipality prior to closing? I don’t know. I hope your contract does not say issuance of a Certificate of Occupancy “shall constitute conclusive acceptance by the purchaser.”   This example explains why I urge people to spend some time and money on having such large contracts reviewed by an experienced Board Certified Construction Attorney.

If the contract is silent on the state of completion required for closing, the issue will be whether the work was sufficiently complete to permit “reasonable” occupancy of the premises. Before signing builder agreements for purchase and sale, buyers of new homes should hire a Board Certified Construction Attorney to examine the contract to ensure there is a clause that requires the builder or seller to close only when a certificate of occupancy has been issued by the building inspector, and your lender agrees construction is 100% complete, and they are ready to disperse. You would not want the city building inspector to have the final say on whether the purchaser must close. That standard of completion may be unacceptable! The final determination on whether you are required to close depends on the deal you cut in your contract.

If a completion issue is in dispute, try to establish with the seller an amicable holdback sufficient to insure the work is completed. Best regards.

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Will Your Business Be Targeted Next For ADA Compliance?

service_dog_trainingWithout a single complaint to prompt the investigation, the U.S. Attorney’s Office in Houston is examining 25 of the city’s most popular restaurants for Americans with Disabilities Act compliance. A new section of the Department of Justice will focus on violations filed under the ADA and  the Fair Housing Act. Not surprisingly, Federal officials did not release the names of the restaurants to be reviewed, saying they were “objectively selected” through recent rankings. Translation, is your business popular? You could be a target.

Let this serve as your reminder the Department of Justice may investigate possible ADA violations without a specific complaint. DOJ tries to maximize the impact of its work by choosing those businesses most likely to be patronized by disabled individuals. The more successful your business is, the more careful you need to be. Unlike a private plaintiff, the  DOJ is starting with a survey asking the restaurants to self report on ADA compliance. This means that every target restaurant has a chance to fix any problems that may exist before a DOJ inspector arrives or a DOJ complaint is filed. In fact, U.S. Attorney Kenneth Magidson is quoted as saying that they want to “ensure that noncompliant restaurants make the necessary changes rather than face litigation.”

As we know from experience, most private plaintiffs sue first in order to preserve a claim for attorney’s fees.  This is despite the fact that, the first goal of Congress in enacting the ADA was to create compliance, not lawsuits. As we see it, the private enforcement mechanism has failed to achieve this goal, with lawyers and consultants the prime beneficiaries of the legislation. Whether or not your business is on the DOJ list, think about it. Why not spend money on ADA compliance instead of on attorneys?  Now is the time to make sure your business is physically accessible and has the proper policies for service dogs and other types of accommodation requests.

Can I take a rigging contractor to small claims court in Florida for doing incomplete, dangerous shoddy work on my sailboat?

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QUESTION:  I had work done on my sail boat in Palmetto Florida by a rigger between April ’15 and July ’15. He was paid about $15,000 for the work. It’s now Oct 19, 2015 and I’ve discovered much of the work was not completed. For example, a bracket at the top of the 60′ mast supporting a 2lbs device required two screws and he put in one, which has now comes loose. If that bracket came off and hit someone they’d be dead. Further example, two clutches that hold lines in place were only installed with one bolt when two are required. These clutches are under extremely high load and would cause serious injury or death if they came off. I trusted this professional rigger to ensure the rigging was safe. I’m now in a position of having to hire another rigger to double-check & fix the previous guy’s work.

ANSWER:

First, have you written the rigger, advised him of your concerns and given him an opportunity to cure? If you have been ignored, you should try a small claims case. That is a legal action filed in county court to settle minor legal disputes among parties where the dollar amount involved is $5,000 or less, excluding costs, interest, and attorneys’ fees. Forms that have been approved for statewide use are located within the Florida Small Claims Rules. The clerk of court may also be able to provide you with copies of appropriate forms.

A small claims action begins by filing a Statement of Claim. Small claim cases should be filed with the clerk in the appropriate county. Filing fees for small claims actions are established in the Florida Statutes and local county ordinances, and are subject to change by legislative action. The clerk of court may will provide information on filing fees.

After filing, each person being sued must be served with a summons/notice to appear in court on a date and time scheduled by the clerk after the initial claim was filed. A copy of the Statement of Claim should be attached to the summons provided in the Florida Small Claims Rules. Additional sheriff fees are required for service of process on the parties being sued. The court may schedule an initial pretrial conference and also order the parties to mediation to resolve problems. Defendants may file counterclaims, set-offs, or third party complaints as provided in the Florida Small Claims Rules. Practice and procedure may vary from county to county. The clerk of court in the county where the action is filed should be contacted for local practices and procedures.

You will need your expert at the trial to support the deficiencies in the work. Your expert should prepare a detailed report of the problems and the cost to cure. That report should contain photographic evidence before and after the cure. He should bring the manufacturer’s installation instructions showing what should have been done. Detailed records of what the cure consisted of and how long it took per item is essential. If you win, it does not mean you get paid automatically. You have to go about collecting the Judgement. The court cannot collect money damages for you. You may wish to consult with an attorney for advice on how to collect a judgment. Recording a certified copy of the judgement clouds the title to his real property and a writ of execution can be used to direct a sheriff to levy on personal property belonging to the debtor. But I digress, collection is not the focus of your question. Good luck and best regards.

Christopher Weiss
chris@cweisslaw.com

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