CHARLES M. BRAVERMAN AND JILL ANN BRAVERMAN, APPELLANTS,
v.
VAN BOWER, INC., D/B/A VAN BOWER POOL, PATIO, AND SPA, APPELLEE
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Homeowners appealed a trial court judgment awarding a contractor a mechanic's lien and damages for breach of contract. The court reversed, holding that the contractor materially breached the contract by failing to secure a required building permit for a screen enclosure and then constructing it after permit denial, thereby failing to substantially perform.
The contractor did not substantially perform the contract and is not entitled to recover on the mechanic's lien. By failing to secure the permit and building the enclosure after denial, the contractor materially breached a material and considerable part of the work required under the contract.
[1] A contractor's failure to obtain a necessary building permit, especially after the permit has been denied, constitutes a material breach of contract, precluding a finding…
[2] A contractor is not entitled to foreclose on a mechanic's lien when the contract has not been substantially performed.
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Join FLexlaw to unlock all legal intelligence“The contractor shall furnish plans, engineering, permits and licenses”
This establishes the express contractual obligation requiring the contractor to obtain necessary permits
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Join FLexlaw to unlock all legal intelligenceThe Bravermans contracted with Van Bower, Inc. to build a pool, patio, and screen enclosure. The contract required the contractor to furnish plans, en…
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PER CURIAM.
Charles and Jill Ann Braverman [homeowners] appeal from a final judgment in favor of a contractor in an action to foreclose on a mechanic’s lien and for breach of contract. For the following reasons, we reverse.
The homeowners entered into a contract with Van Bower, Inc., for the construction of a pool, patio, and screen enclosure. The contract provided that “[t]he contractor shall furnish plans, engineering, permits and licenses_” (emphasis added).
The screen enclosure that was built was too large to comply with zoning ordinances of the City of Miami Beach and was built to completion even though the application for the building permit had been denied. When the homeowners refused to make the final scheduled payment to the contractor, the contractor executed and recorded a claim of lien for the unpaid amount, then sued for breach of contract and to foreclose on the lien. The City of Miami Beach served the owners with a Notice of Violation of the South Florida Building Code one week after the contractor sued to foreclose on the lien. The homeowners defended on the ground that the contractor had breached the contract by failing to obtain the necessary permit.
The trial court entered judgment for the contractor, finding that the contractor had substantially performed the contract.
We reverse. By failing to secure a permit for the screen enclosure and, then, building the enclosure after the permit had been denied, the contractor materially breached, and did not substantially perform, the terms of the contract. Substantial performance is “that performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee the full contract price subject to the promisor’s right to recover whatever damages may have been occasioned him by the promisee’s failure to render full performance.” Ocean Ridge Dev. Corp. v. Quality Plastering, Inc., 247 So. 2d 72, 75 (Fla. 4th DCA 1971). “The contractor is not entitled to a lien where he has not substantially performed his contract, or where he has failed to perform a material and considerable part of the work required under the contract, or where he has willfully or intentionally departed from, or failed to carry out, the terms of the contract.” Pitts v. Aklswede, 139 So. 2d 159 (Fla. 1st DCA 1962).
See also Viking Communities Corp. v. Peeler Construction Co., 367 So. 2d 737 (Fla. 4th DCA 1979) (basic contractual obligation must be fulfilled before contractor entitled to mechanic’s lien; compliance with both contract and mechanic’s lien statute necessary for recovery on mechanic’s lien).
Compare Poranski v. Millings, 82 So. 2d 675 (Fla.1955) (where complete performance of contract prevented by both parties, contractor’s failure to comply strictly with terms of contract did not prevent enforcement of mechanic’s lien), and Oven Dev. Corp. v. Molisky, 278 So. 2d 299 (Fla. 1st DCA 1973) (contractor substantially complied with contract and was entitled to recover on mechanic’s lien where contractor had substituted inferior materials for those specified in contract and had provided inferior workmanship resulting in less attractive homes).
In this case, the contractor could not delegate to the subcontractor his contractual duty to obtain the necessary building permit. As a matter of law, the contractor has not substantially performed the contract and is, therefore, not entitled to recover on his mechanic’s lien.
REVERSED AND REMANDED.
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Nat'l Constructors, Inc. v. Ellenberg, 681 So. 2d 791 (Fla. 3d DCA 1996)…e also Casa Linda Tile & Marble Installers, Inc. v. Highlands Place 1981, Ltd., 642 So. 2d 766, 768 (Fla. 4th DCA 1994) (“A contractor is not entitled to a [mechanic’s] lien in the absence of substantial performance.”); Braverman v. Van Bower, Inc., 583 So. 2d 381, 382 (Fla. 3d DCA) (finding a contractor not entitled to recovery on a mechanic’s hen where the contractor did not substantially perform the terms of the contract), review denied, 592 So. 2d 683 (Fla.1991). In the context of contracts for constructi…
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CASA Linda Tile & Marble Installers, Inc. v. Highlands Place 1981, Ltd., 642 So. 2d 766 (Fla. 4th DCA 1994)…ht to recover whatever damages may have been occasioned him by the promisee’s failure to render full performance. 247 So. 2d at 75. A contractor is not entitled to a lien in the absence of substantial performance. See Braverman v. Van Bower, Inc,, 583 So. 2d 381 (Fla. 3d DCA), rev. denied, 592 So. 2d 683 (Fla.1991); Pitts v. Ahlswede, 139 So. 2d 159 (Fla. 1st DCA 1962). However, failing to secure a contractually required architect’s certificate, alone, should not prevent a lienor from recovering for work pe…
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Mashan Contractors, Inc. v. Bailey, 922 So. 2d 330 (Fla. 3d DCA 2006)…titlement to attorney’s fees. See § 713.29, Fla. Stat. (1999). The trial court found that the contractor had not substantially performed his agreement and ruled against the contractor on the construction lien claim. See Braverman v. Van Bower, Inc., 583 So. 2d 381 (Fla. 3d DCA 1991); see also Casa Linda Tile & Marble Installers, Inc. v. Highlands Place 1981, Ltd., 642 So. 2d 766 (Fla. 4th DCA 1994). The trial court concluded, however, that neither side had prevailed and that neither side would be entitled to…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bryant v. Brinkley, 247 So. 2d 72 (Fla. 1st DCA 1971)
- Falcon Pitts and Mike McKinley v. Erichc Ahlswede and Adeline M. Ahlswede, 139 So. 2d 159 (Fla. 1st DCA 1962)
- Poranski v. Millings, 82 So. 2d 675 (Fla. 1955)
- Viking Cmtys. Corp. v. Peeler Constr. Co. & Star Constr. Co. of Ft. Pierce, Inc., 367 So. 2d 737 (Fla. 4th DCA 1979)
- Oven Dev. Corp. v. Molisky, 278 So. 2d 299 (Fla. 1st DCA 1973)