Construction Liens Are Available Only to Lienors for Their Permanent Improvements to Property

CONSTRUCTION LIENS ARE AVAILABLE ONLY TO LIENORS FOR THEIR PERMANENT IMPROVEMENTS TO PROPERTY

By: Larry Leiby, Esq. and Robert S. Tanner, Esq.

About the Author: Larry Leiby, Esq. was the founder and first chairman of the Florida Bar Construction Law Committee in 1976. He is the author of the Florida Construction Law Manual. He is Board Certified in Construction Law and was on the Construction Law Certification Committee that creates and grades the tests for construction law board certification. He was awarded the lifetime achievement award by the Florida Bar Construction Law Committee and teaches construction law at the Florida International University College of Law. He can be reached at leiby@mkpalaw.com. For more information, please visit www.mkpalaw.com.

It's not often that we see someone who is not a contractor, subcontractor, sub-subcontractor, materialman, or professional lienor (e.g, engineer, architect) record a lien pursuant to the Construction Lien Law. That's probably because the Construction Lien Law defines who is a proper lienor and anyone who is not within the definition of "lienor" may not have a construction lien. Further, if one recording a construction lien is not a lienor (a contractor, subcontractor, sub-subcontractor, supplier, laborer, or professional lienor), the question is justified whether the labor, materials, and services for which they are asserting a construction lien were provided under a contract for improving the owner's property. A statutory requisite for a construction lien. But sometimes, these "technicalities" don't stop a person from trying anyway.

In Parc Central Aventura East Condominium Association, Inc. v. Victoria Group Services, LLC, Case No. 3D10-254 (Fla. 3d DCA Jan. 19, 2011), Victoria Group Services, LLC ("Victoria") had a contract with Parc Central Aventura East Condominium Association, Inc. ("Association"). Under that contract, Victoria was to "provide residential cleaning, maintenance & concierge services", which included general maintenance, upkeep, security services, vacuuming, dusting, disposing of trash, and accepting packages for residents. Victoria apparently provided these services for some period of time without being paid, allowing Association to accumulate $280,737.27 in arrears. Victoria recorded a claim of lien pursuant to the Construction Lien Law for the same amount and sued to foreclose the lien. The trial court granted summary judgment in favor of Victoria. Unsurprisingly, Association appealed.

The Third District Court of Appeal ("Appellate Court") noted that the fundamental purpose of the Construction Lien Law "is to protect those who have provided labor and materials for the improvement of real property." The lien law defines "improvement" to mean "any building, structure, construction, demolition, excavation, solid-waste removal, landscaping, or any part thereof existing, built, erected, placed, made, or done on land or other real property for its permanent benefit." The Appellate Court noted other appellate cases where a construction lien was denied due for failure to meet the permanent benefit requirement. In one, the court concluded that lawn mowing and shrubbery cutting services did not provide permanent benefit while installation of plants and trees might. In another, the court found that stairway cleaning, washroom grouting, and sealing of washroom walls were not lienable. Although a person removing construction debris during a construction project may be entitled to a construction lien, Victoria was not removing trash related to improving the property for permanent benefit. Accordingly, the Appellate Court found that the trial court erred in granting the construction lien in favor of Victoria.

Fortunately for Victoria, it sued not only to foreclose the construction lien but, instead, also asserted counts for money damages. Had Victoria relied solely on the lien action and ended up with the Appellate Court bouncing it like it did, Victoria likely would have been squarely on the hook for Association's attorney's fees for the entire case. In addition to finding that Victoria was not entitled to the construction lien, the Appellate Court instructed the trial court to enter judgment in Victoria's favor for the money damages. That result would arm Victoria with an argument that it still was the prevailing party for purposes of attorney's fees.