THE DELTONA CORPORATION, BY AND THROUGH ITS DIVISION, IMPERIAL LUMBER, APPELLANT,
v.
INDIAN PALMS, INC., APPELLEE
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Deltona Corporation, a materialman without privity to the property owner, filed a mechanic's lien and later sought to foreclose it after the lien was transferred to a surety bond under Florida law. The court affirmed the dismissal of the property owner as a party to the foreclosure action, holding that once a mechanic's lien is fully secured by a bond, the owner is no longer a necessary or proper party to the foreclosure suit.
A property owner is no longer a necessary or proper party to a mechanic's lien foreclosure action when the lien is fully secured by a surety bond under § 713.24. The owner is a necessary party only to satisfy due process when his property is at risk, but once the lien benefits are fully secured by the bond, the owner may opt out of the action if he chooses not to contest the lien amount.
[1] When a mechanic's lien is transferred from real property to a surety deposit bond, the owner is no longer a necessary or proper party to a foreclosure action if the lieno…
[2] The purpose of Florida Statute § 713.24 is to allow an owner to remove a lien from their property by transferring it to a surety bond.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In a suit to foreclose such a lien, then, the owner is a necessary and proper party only to satisfy due process as to him since his property, the res securing the lien, is in jeopardy.”
Establishes that an owner's status as a necessary party is predicated on due process protection for his property interest in the lien.
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Join FLexlaw to unlock all legal intelligenceDeltona Corporation furnished materials to Total Sales, Inc., the general contractor, for construction improvements on property owned by Indian Palms,…
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McNULTY, Chief Judge.
Appellant-materialman’s duly filed mechanic’s lien was transferred from appel-lee-owner’s real property to a surety deposit bond fully covering the lien pursuant to § 713.24(1), F.S.1973. In this suit subsequently filed to foreclose the lien, the trial court dismissed appellee-owner and ordered joinder of New Hampshire Insurance Company, the surety on the aforesaid bond, on the grounds that appellee-owner was no longer a proper party to the action. We agree and affirm.
Appellant’s complaint filed herein alleges that it furnished materials to Total Sales, Inc., the general contractor, for the construction of improvements on appellee’s lands. Privity with the owner was not alleged. It follows, therefore, that absent the provisions of the mechanic’s lien law 1 appellant would have no cause of action directly against appellee-owner. Moreover, the express remedy afforded one in its position under the mechanic’s lien law is to allow him to impress a lien on the improved real property to the extent of the value of the improvements. In a suit to foreclose such a lien, then, the owner is a necessary and proper party only to satisfy due process as to him since his property, the res securing the lien, is in jeopardy.
Now obviously the purpose of § 713.24, supra, is to permit any owner, whether or not he is in privity with a lien-or, to remove the cloud of a lien from his property against which the lien is impressed; and he may do so either before or after suit. But with respect to a lienor not in privity with the owner, his entitlement to the benefits of his lien is dependent not upon any rights or equities flowing as between him and the owner but, rather, those as between him and the parties with whom he was in privity, in this case the general contractor. Thus if the benefits of the lien are fully secured by the bond provided for under § 713.24, supra, and they are here, then we think, and so hold, that the owner is no longer a necessary party 2 nor is he a proper party, at his option, if he chooses not to contest the amount of the lien.
The decision of our sister court in the Fourth District in the similar case of Schleifer v. All-Shores Construction and Supply Company 3 cited by appellee is consistent with our holding this day but not controlling. That court did not consider nor did it decide the question of whether an owner with whom a lienor is not in privity is a necessary and proper party against whom a foreclosure judgment must be obtained as a condition precedent to proceeding against a transfer bond filed pursuant to § 713.24, supra. We are directly faced with that question and think not.
In view whereof, the judgment appealed from should be, and it is hereby, affirmed.
HOBSON and SCHEB, JJ., concur. . Chapter 713, F.S.1973.
. Our answer would be different, of course, if the owner was in privity with the lienor for the reason that should he fail in establishing all or part of his lien he would still have a viable in personam claim against the owner. Cf. Emery v. International Glass & Mfg., Inc. (Fla.App.2d, 1971), 249 So. 2d 496.
.(Fla.App. 4th, 1972), 260 So. 2d 270.
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Hiller v. Phoenix Assocs. OF S. Fla., Inc., 189 So. 3d 272 (Fla. 2d DCA 2016)…e controlling statute,”), Section 713.24 provides a mechanism for an owner whose property is encumbered by a lien under that chapter to obtain clear title by transferring the lien to another security. See, e.g., Deltona Corp. v. Indian Palms, Inc., 323 So. 2d 282, 283 (Fla. 2d DCA 1975) (“Now obviously the purpose of s.713.24, supra, is to permit any owner, whether or not he is in privity with a lienor, to remove the cloud of a lien from his property against which the lien is impressed; and he may do so eith…
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KEY W. Seaside, LLC v. Certified Lower Keys Plumbing, Inc., 208 So. 3d 718 (Fla. 3d DCA 2015)…), Fla. Stat. (2013); Allied Gen. Contractors v. Superior Asphalt Co., 397 So. 2d 727, 728 (Fla. 5th DCA 1981); Riviera Beach P’ship Ltd. v. S.I. Goldman Mech. Contractor, 345 So. 2d 783, 784 (Fla. 4th DCA 1977); Deltona Corp. v. Indian Palms, Inc., 323 So. 2d 282, 283 (Fla. 2d DCA 1975) (holding that an owner is not a proper party to a subcontractor’s suit for payment after its lien was transferred to bond); W. Plumbing & Heating Co. v. Hurley, 168 So. 2d 328, 329-30 (Fla. 1st DCA 1964); see also Dep’t of Hi…
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Mesch v. Berry, 528 So. 2d 1250 (Fla. 1st DCA 1988)…ntract between El-Don and Berry, nor principals on the bond, should have been dismissed as party defendants to the action. See Resnick Developers South, Inc. v. Clerici, Inc., 340 So. 2d 1194 (Fla. 4th DCA 1977); Deltona Corp. v. Indian Palms, Inc., 323 So. 2d 282 (Fla. 2d DCA 1975); Schleifer v. All-Shores Construction and Supply Co., 260 So. 2d 270 (Fla. 4th DCA 1972). Berry responds, however, that later case law authority authorizes an attorney’s fee in excess of the amount of the payment bond provided in…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- B. Irwin Emery et ux. v. Int'l Glass & MFG., Inc., 249 So. 2d 496 (Fla. 2d DCA 1971)
- Schleifer v. All-Shores Const. & Supply Co., Inc., 260 So. 2d 270 (Fla. 4th DCA 1972)