YVES PRIVAS AND JANET PRIVAS, HUSBAND AND WIFE, APPELLANTS,
v.
BRISSON CUSTOM HOMES, INC., A FLORIDA CORPORATION, APPELLEE
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Homeowners appealed a foreclosure judgment on a construction lien, arguing the contractor failed to comply with statutory prerequisites. The court agreed and reversed, holding that the contractor's failure to timely deliver a required affidavit to the homeowners barred the foreclosure action.
Yes. The contractor's failure to timely deliver the affidavit as a prerequisite to filing the foreclosure action within one year of the original claim of lien filing barred the claim entirely, and the judgment of foreclosure must be reversed.
[1] Evidence of proper posting in the mail of a contractor's affidavit at least 5 days before filing suit constitutes compliance with the statutory requirement for delivery t…
[2] A contractor must deliver an affidavit to the owner at least 5 days before instituting an action to enforce a lien as a prerequisite to the action.
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Join FLexlaw to unlock all legal intelligence“The contractor shall execute the affidavit and deliver it to the owner at least 5 days before instituting an action as a prerequisite to the institution of any action to enforce his or her lien under this chapter”
Establishes the statutory requirement that the contractor must deliver the affidavit at least five days before filing the foreclosure complaint
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Join FLexlaw to unlock all legal intelligenceBrisson Custom Homes, a contractor, performed improvements on the homeowners' property with $149,396.06 remaining unpaid. The contractor filed a claim…
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MAY, J.
This is an appeal from a final judgment of foreclosure on a construction lien. The homeowners argue that the trial court erred by entering a judgment in favor of the contractor when it failed to comply with statutory prerequisites to foreclose on its claim of lien. We agree and reverse.
Brisson Custom Homes, the contractor, filed a four-count complaint against the homeowners. Count I sought to foreclose a construction hen. The contractor alleged that it had performed improvements to the property, pursuant to a contract. The homeowners paid most of the contract price, but $149,396.06 remained outstanding. The relevant dates are these:
July 6, 1995 — contractor records claim of lien with the clerk of court for $129,390.06.
April 9, 1996 — contractor amends claim of lien to reflect $149,396.06.
May 13, 1996 — contractor files complaint.
Sept. 3, 1996 — contractor’s affidavit dated and notarized.
Sept. 6, 1996 — contractor amends complaint.
The homeowners filed a motion to dismiss the complaint, and alleged that the contractor had failed to timely file and serve the contractor’s affidavit, pursuant to section 713.06(3)(d), Florida Statutes. The trial court denied the motion.
The contractor filed a second amended complaint on September 17, 1997. The homeowners filed an answer and affirmative defenses, once again raising the lack of a contractor’s affidavit having been timely delivered prior to the filing of the action. The trial court heard the matter and entered a final judgment in favor of the contractor on July 19, 2000.
Sections 713.06(3)(d) and 713.22 of the Florida Statutes govern the outcome of this case. Section 713.22, Florida Statutes (2001), provides:
(1) No lien provided by this part shall continue for a longer period than 1 year after the claim of lien has been recorded, unless within that time an action to enforce the lien is commenced in a court of competent jurisdiction.
Thus, a lawsuit to foreclose on a construction lien must be commenced within one year after the original claim of lien is filed. § 713.22, Fla. Stat. (2001); Hoepner & Assocs., Inc. v. Stewart Gilman Co., 648 So. 2d 854 (Fla. 5th DCA 1995). The contractor complied with this provision, however, it failed to comply with its prerequisite.
Section 716.06(3)(d) requires the contractor to provide the owner with an affidavit indicating that all lienors have been paid in full or showing the name of each lienor who has not been paid in full. “The contractor shall execute the affidavit and deliver it to the owner at least 5 days before instituting an action as a prerequisite to the institution of any action to enforce his or her lien under this chapter ....” § 713.06(3)(d), Fla. Stat. (2001). Failure to do so bars the claim. Hanley v. Kajak, 661 So. 2d 1248 (Fla. 4th DCA 1995). See also Falovitch v. Gunn & Gunn Constr. Co., 348 So. 2d 560 (Fla. 3d DCA 1977). To have perfected its lien, the contractor was required to serve his affidavit on the homeowner five days prior to filing his complaint. The complaint had to be filed within one year of the original filing date of the claim of lien. In this case, the claim of lien was filed on July 6, 1995. The affidavit therefore had to be delivered five days prior to filing an amended complaint before July 6, 1996. While the contractor filed its original complaint on May 13, 1996, within the one year statute of limitations period, no affidavit had been delivered to the homeowner. By the time the contractor filed its amended complaint on September 6, 1996, the one-year statutory time period had elapsed. By failing to timely comply with the statutory prerequisite of delivering the affidavit to the homeowner five days prior to filing a complaint within the one-year statutory time frame, the contractor is now “foreclosed” from foreclosing on its claim of lien.
For this reason, the judgment of foreclosure is reversed and the case remanded to vacate the judgment entered on the contractor’s claim of lien.
WARNER, and KLEIN, JJ„ concur.
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Citator
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City OF Coconut Creek v. City OF Deerfield Beach, 840 So. 2d 389 (Fla. 4th DCA 2003)…3 (finding complaint against governmental entity properly dismissed with prejudice where claimant failed to file section 768.28(6) notice to Department of Insurance and time for provision of notice had expired); Privas v. Brisson Custom Homes, Inc., 817 So. 2d 983, 984-85 (Fla. 4th DCA 2002) (reversing judgment foreclosing lien where final contractor’s affidavit not timely served on homeowner within statutory time limit); Bishop Signs, Inc. v. Magee, 494 So. 2d 532, 533-34 (Fla. 4th DCA 1986) (upholding dismi…
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Puya v. Superior Pools, 902 So. 2d 973 (Fla. 4th DCA 2005)…v. Adams, 563 So. 2d 1090, 1091 (Fla. 4th DCA 1990). Where a contractor fails to timely furnish a final payment affidavit, the owner is generally entitled to dismissal of the contractor’s foreclosure suit. See Privas v. Brisson Custom, Homes, Inc., 817 So. 2d 983, 984 (Fla. 4th DCA 2002); Bishop Signs, Inc. v. Magee, 494 So. 2d 532, 533 (Fla. 4th DCA 1986); Paulk v. Peyton, 648 So. 2d 772, 773 (Fla. 1st DCA 1994). Section 713.06(3)(c)5., makes the requirements of section 713.06(3)(d)l. applicable to this ca…
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Pierson D. Constr., Inc. v. Yudell, 863 So. 2d 413 (Fla. 4th DCA 2003)…is not served on the owner five days before commencing an action, it must still be served within the applicable “statutory limitation period.” Holding Elec., Inc. v. Roberts, 530 So. 2d 301, 303 (Fla.1988); see Privas v. Brisson Custom Homes, Inc., 817 So. 2d 983, 985 (Fla. 4th DCA 2002); Bell v. Renar Dev. Co., 811 So. 2d 780, 781 (Fla. 4th DCA 2002); Hanley v. Kajak, 661 So. 2d 1248, 1249 (Fla. 4th DCA 1995); Timbercraft Enters., Inc. v. Adams, 563 So. 2d 1090, 1093 (Fla. 4th DCA 1990). In Roberts, the su…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Falovitch v. Gunn & Gunn Constr. Co., 348 So. 2d 560 (Fla. 3d DCA 1977)
- Hanley v. Kajak, 661 So. 2d 1248 (Fla. 4th DCA 1995)
- Hoepner & Assocs., Inc. v. Stewart Gilman Co., Inc., 648 So. 2d 854 (Fla. 5th DCA 1995)