All
lienors must timely record a proper Claim of Lien form in
order to perfect their lien rights. The contents of the
Claim of Lien are carefully detailed in Florida Statutes
section 713.08, and a suggested form of Claim of Lien is
provided in that statute. As a result of a 2003 amendment
to the statute, a specific warning must now be inlcuded
on every Claim of Lien, using the wording, and the format,
as dictated by the statute. A court has the discretion,
however, to still enforce a lien against one who has not
been prejudiced by an error in a Claim of Lien, even where
a detail specified in the statute is omitted, or where there
is an error in a detail specified in the statute.
As
noted above, in the collective experience of the attorneys
with Moody and Shea, P.A.,
the primary cause of lienors failing to perfect their lien
rights relate to errors made in the preparation or service
of the Notice To Owner. A close second, however, is errors
made in the preparation of the Claim of Lien. The determination
of both the contract amount as well as the unpaid balance,
the date of first furnishing, the date of last furnishing,
and the proper identification of the property and property
interest to be liened, all can present issues and questions
requiring legal analysis. For this as well as other reasons,
Moody and Shea, P.A.
has never recommended that non-attorneys prepare Claims
of Lien.
While
the fill-in-the-blank Claim of Lien form may appear relatively
simple for a lay person to complete, the reality is that
there are often issues and questions as to what labor, services,
and/or materials can be included in the calculation of the
amounts to be reflected in the Claim of Lien, as well as
the determination of the first and last date of furnishing.
To add to the confusion as to these factual issues, a recent
statement of the Florida Bar’s Standing Committee
on the Unauthorized Practice of Law has raised questions
as to the circumstances under which a lay person can prepare
a Claim of Lien.
As
noted above, the Florida Supreme Court has held that lay
persons can prepare Notices to Owner and Notices to Contractor
(see the section on construction payment bonds), as the
preparation of such forms does not constitute the practice
of law. The Florida Bar re Advisory Opinion - Nonlawyer
Preparation, etc..., 544 So. 2d 1013 (Fla. 1989). Non-attorneys,
including notice service company employees, are prohibited,
however, from giving advise relating to the preparation
or effect of the Notice To Owner or Notice To Contractor.
However, in a case where the typical functions of a licensed
community association manager were examined, The Florida
Supreme Court has held that the preparation of a Claim of
Lien, or a Notice of Commencement, or even a Satisfaction
of Lien, constitutes the practice of law.
The
Constitution of the United States affords individuals the
right of self-representation. Therefore, it is clear that
a sole proprietor engaged in the construction profession
has the right, however unwise it may be, to prepare his/her
own Notices of Commencement, Claims of Lien, and Satisfactions
of Lien. Corporations, limited partnerships, and limited
liability companies are not considered “persons”
for purposes of this constitution right, however. A recent
unpublished opinion of the Florida Bar which stated that
a credit manager of a material supplier had committed the
unauthorized practice of law by preparing a Claim of Lien
to be used by one of the supply company’s customers,
also cast doubt, but failed to answer the question, as to
whether the credit manager could prepare a Claim of Lien
for her supply company corporate employer. As noted above,
the best practice is to have an attorney prepare the Claim
of Lien.
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to Establishing a Construction Lien
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