If
materials delivered to a project site have not been paid
for and have not yet been incorporated as part of the property,
the materials can be repossessed, if done peaceably. Once
repossessed, the supplier will no longer have a lien against
the real property, or a claim against any person, for the
price of the materials repossessed. The right to peaceably
repossess stored materials does not apply if:
-
the property has been sold to, or a mortgage or lien has
attached subsequent to the delivery of the materials in
favor of, a good faith purchaser or mortgagee, and
- the
owner has previously paid for the materials, even though
the supplier has not been paid. Obviously,
determining whether or not the owner has paid for the
materials requires investigation on the part of the supplier
contemplating repossession.
If materials have only been partially paid for, and the
purchase price of the materials to be repossessed exceeds
the amount due to the supplier, the materials can still
be repossessed, but the difference must be refunded, or
credited to the account, when the materials are repossessed.
Extreme
care should be used if the option of repossession is chosen.
Florida appellate court decisions have been very conservative
in the area of consumer law in finding seemingly insignificant
occurrences to constitute a breach of the peace. In the
event the court finds that the repossession constituted
a breach of the peace, the lienor may be liable in damages
to the owner for conversion of the property. Further, in
the event that the repossession causes damage to portions
of the property other than the repossessed materials, the
lienor will be liable to the owner for the damages.
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